Unassociated Document


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    


    SUBORDINATED
      OLD GUARANTEE

    


    SUBORDINATED
      OLD GUARANTEE (the "Subordinated Guarantee"), dated as of September 27, 2007,
      by
      SUN LIFE ASSURANCE COMPANY OF CANADA (U.S.), a corporation organized under
      the
      laws of the State of Delaware ("Sun Life U.S." or the "Guarantor"), in
      connection with certain deferred combination fixed and
      variable  annuity contracts (together with any riders, endorsements,
      modifications or supplements thereto, the "Contracts") issued by SUN LIFE
      INSURANCE AND ANNUITY COMPANY OF NEW YORK, a stock life insurance company
      organized under the laws of the State of New York ("Sun Life
      N.Y.").

    


    W
      I T N E S S E T H:

    


    WHEREAS,
      Sun Life N.Y. is the issuer of
      Contracts which offer holders thereof the option to earn a guaranteed fixed
      return for specified periods, which has resulted in such holders receiving
      certain guarantee period interests; and

    


    WHEREAS,
      the offer and sale of certain
      of such guarantee period interests has been registered under the Securities
      Act
      of 1933, as amended (the "Securities Act") by Sun Life N.Y., which guarantee
      period interests may be referred to in any applicable Securities Act
      registration statement as "market value adjusted interests" or similar terms;
      and

    


    WHEREAS,
      this Subordinated Guarantee
      uses the term "Guarantee Period" to refer to any of the aforementioned specified
      periods that (a) are applicable to guarantee period interests that have been
      sold pursuant to such a registered offering; and (b) commenced prior to
      September 27, 2007; and

    


    WHEREAS,
      this Subordinated Guarantee, which applies only to the guarantee period
      interests of the affected Contracts and to no other obligations of Sun Life
      N.Y.
      thereunder, is intended to enable Sun Life N.Y. to be exempt from filing certain
      periodic reports under the Securities Exchange Act of 1934, as amended (the
      "1934 Act"), which will relieve Sun Life N.Y. of certain costs and
      inconvenience; and

    


    WHEREAS,
      as the owner of all of Sun Life N.Y.’s issued and outstanding shares of stock,
      the Guarantor also will indirectly benefit from the benefits to Sun Life N.Y.
      referred to above;

    


    NOW,
      THEREFORE, in consideration of the premises set forth herein, and other good
      and
      valuable consideration, the receipt and sufficiency of which is hereby
      acknowledged, the parties hereby agree as follows:

    


    SECTION
      1.  Guarantee.  The Guarantor hereby unconditionally
      and irrevocably guarantees, as a principal and not merely as a surety, the
      full
      and punctual payment when due of all amounts payable by Sun Life N.Y. from
      a
      Guarantee Period to any holder, owner, participant, annuitant or beneficiary
      under any Contract creating such interest, to any successor, legatee, heir,
      or
      assignee of any such person, to any other account or option under the Contract,
      or to any other account of any such person (all of the foregoing persons,
      accounts and options being referred to herein as "Payees").  For this
      purpose, the amounts payable by Sun Life N.Y. to a Payee from a Guarantee
      Period:

    


    
      	
              (a)  

            	
              upon
                a full or partial transfer, withdrawal, surrender, maturity,
                annuitization, loan or other similar removal from the Guarantee Period
                will be the net amount so removed from such Guarantee Period, after
                (i)
                increase for any interest or positive market value adjustment that
                would
                be credited to a Payee under the terms of the Contract with respect
                to the
                transaction in question; and (ii) reduction for any interest, fees,
                charges, outstanding loans, and negative market value adjustments
                that
                would be charged against a Payee under the terms of the Contract
                with
                respect to the transaction in question;
                or

            


    

    


    
      	
              (b)  

            	
              upon
                payment of any other amount as a consequence of the death of any
                owner,
                holder, participant, or annuitant under a Contract, will be an amount
                equal to the Contract's account value then allocated to the Guarantee
                Period, increased by any accrued but uncredited interest attributable
                thereto and any positive market value adjustment that would have
                been
                payable upon any surrender of the Contract at that time; provided,
                however, that the Guarantor shall in no case be required to pay a
                greater
                amount upon the death of an owner, holder, participant or annuitant
                under
                a Contract than the terms of the Contract obligate Sun Life N.Y.
                to pay
                upon such death.

            


    

    


    This
      Subordinated Guarantee guarantees the payment of the foregoing amounts payable
      by Sun Life N.Y. from a Guarantee Period but does not guarantee any other
      obligations of Sun Life N.Y. under a Contract.

    


    SECTION
      2.  Guarantee Absolute.  The Guarantor agrees that
      this Subordinated Guarantee is a guarantee of payment and not of collection
      or
      collectibility, and that the obligations of the Guarantor hereunder shall be
      primary, absolute and unconditional and, without limiting the generality of
      the
      foregoing, shall not be released, discharged or otherwise affected
      by:

    


    
      	
              (i)  

            	
              any
                extension, renewal, settlement, compromise, waiver or release in
                respect
                of any obligation of Sun Life N.Y. under the Contracts, or by operation
                of
                law or otherwise;

            


    

     

    
      	
              (ii)  

            	
              any
                modification, amendment, supplement, endorsement or rider to the
                Contracts;

            


    

     

    
      	
              (iii)  

            	
              any
                change in the corporate existence, structure or ownership of Sun
                Life
                N.Y., or any insolvency, bankruptcy, reorganization or other similar
                proceeding affecting Sun Life N.Y. or its assets or any resulting
                release
                or discharge of any obligation of Sun Life N.Y. contained in the
                Contracts;

            


    

     

    
      	
              (iv)  

            	
              the
                existence of any defense, claim, set-off or other rights which the
                Guarantor may have at any time against Sun Life N.Y., or any other
                person,
                whether in connection herewith or any unrelated transactions, provided
                that nothing herein shall prevent the assertion of any such claim
                by
                separate suit or compulsory counterclaim or with respect to obligations
                of
                the Guarantor other than obligations
                hereunder;

            


    

     

    
      	
              (v)  

            	
              any
                invalidity or unenforceability relating to or against Sun Life N.Y.
                for
                any reason under the Contracts, or any provision of applicable law
                or
                regulation purporting to prohibit the payment by Sun Life N.Y. of
                any
                amount payable by Sun Life N.Y. under the Contracts;
                or

            


    

     

    
      	
              (vi)  

            	
              any
                other act or omission to act or delay of any kind by Sun Life N.Y.
                or any
                other person or any other circumstance whatsoever which might, but
                for the
                provisions of this paragraph, constitute a legal or equitable discharge
                of
                the Guarantor’s obligations
                hereunder.

            


    

     

    


    SECTION
      3.  Representations and Warranties.  The Guarantor
      hereby represents and warrants that:

    


    (a)  Authorization;
      No Contravention. The execution, delivery and performance by the Guarantor
      of this Subordinated Guarantee is within the Guarantor’s powers, has been duly
      authorized by all necessary action, requires no action by or in respect of,
      or
      filing with, any governmental body, agency or official (except any such
      authorization that has been duly given, action that has been duly taken or
      filing that has been duly made) and does not contravene, or constitute a default
      under, any known provision of applicable law or regulation, as amended from
      time
      to time, or the Certificate of Incorporation or by-laws of the Guarantor or
      of
      any agreement, judgment, injunction, order, decree or other instrument binding
      upon the Guarantor or result in or require the creation or imposition of any
      lien on any asset of the Guarantor.

    


    (b)  Binding
      Effect.  This Subordinated Guarantee constitutes a valid and
      binding agreement of the Guarantor, enforceable against the Guarantor in
      accordance with its terms.

    


    SECTION
      4.  Enforcement of Guarantee.  Without limiting any
      other provision of this Subordinated Guarantee, in no event shall any Payee
      have
      any obligation to proceed against Sun Life N.Y. or any other person or property
      before seeking satisfaction from the Guarantor.  Any Payee may enforce
      the Subordinated Guarantee directly against the Guarantor, subject to no
      preconditions other than failure by Sun Life N.Y. to pay when due any guaranteed
      amount.

    


    SECTION
      5.  Waiver.  Without limiting any other provision of
      this Subordinated Guarantee, the Guarantor hereby irrevocably waives promptness,
      diligence, or notice of acceptance hereof, presentment, demand, protest and
      any
      and all other notice not provided for herein and any requirement that at any
      time a Payee or any other person exhaust any right or take any action against
      Sun Life N.Y. and any other circumstances whatsoever that might otherwise
      constitute a legal or equitable discharge, release or defense of the Guarantor
      or that might otherwise limit recourse against the Guarantor.

    


    SECTION
      6.  Compliance with Regulation S-X.  This
      Subordinated Guarantee shall be interpreted in such a manner that the
      Subordinated Guarantee will be "full and unconditional" as those words are
      used
      in Rule 3-10 of Regulation S-X of the United States Securities and Exchange
      Commission, as currently in effect, and as they may be amended from time to
      time.  Payees shall automatically have any additional rights and
      remedies against the Guarantor that may be necessary to yield that
      result.

    


    SECTION
      7.  No Waiver; Remedies.  No failure on the part of a
      Payee to exercise, and no delay in exercising, any right hereunder shall operate
      as a waiver thereof; nor shall any single or partial exercise of any right
      hereunder preclude any other or further exercise thereof or the exercise of
      any
      other right. The remedies herein provided are cumulative and not exclusive
      of
      any remedies provided by law.

    


    SECTION
      8.  Continuing Guarantee; Reinstatement in Certain
      Circumstances.  This Subordinated Guarantee is a continuing
      guarantee and the Guarantor's obligations hereunder shall (i) remain in full
      force and effect until the indefeasible payment in full of all amounts payable
      by Sun Life N.Y. from all Guarantee Periods and (ii) be binding upon the
      Guarantor and its successors and assigns.  If at any time any payment
      by Sun Life N.Y. of any amounts payable by Sun Life N.Y. from any Guarantee
      Period is rescinded or must otherwise be restored or returned upon the
      insolvency, bankruptcy or reorganization of Sun Life N.Y. or otherwise, the
      Guarantor's obligations hereunder with respect to such payment shall be
      reinstated as though such payment had been due but not made at such
      time.

    


    SECTION
      9.  Successor Guarantor.  In the event of any
      amalgamation or consolidation by the Guarantor with or merger by the Guarantor
      into any other corporation or any transaction involving the transfer of all
      or
      substantially all of the Guarantor’s assets to any corporation or other entity
      and which as a matter of law or contract results in the successor corporation
      or
      entity becoming bound by or assuming the Guarantor’s obligations under this
      Subordinated Guarantee, such successor corporation or other entity formed by
      such amalgamation or consolidation or into which the Guarantor is merged or
      to
      which such transfer is made shall succeed to, and be substituted for, and may
      exercise every right and power of, the Guarantor under this Subordinated
      Guarantee, with the same effect as if it had been named herein as the Guarantor,
      and thereafter, the predecessor corporation or entity shall be relieved of
      all
      obligations and covenants under this Subordinated Guarantee.

    


    SECTION
      10.  Stay of Time of Payment.  Without limiting any
      other provision of this Subordinated Guarantee, if the time for payment of
      any
      amount payable by Sun Life N.Y. from a Guarantee Period under a Contract is
      stayed upon the insolvency, bankruptcy or reorganization of Sun Life N.Y.,
      all
      such amounts otherwise subject to payment under the terms of this Subordinated
      Guarantee shall nonetheless be payable by the Guarantor hereunder forthwith
      on
      demand by the Payee.

    


    SECTION
      11.  Subordination.  The obligations under this
      Subordinated Guarantee shall be unsecured obligations of the Guarantor, and
      shall be subordinated in right of payment in the event of bankruptcy,
      liquidation, dissolution, winding up or reorganization, or upon the acceleration
      of any senior indebtedness of the Guarantor and shall be subordinate in right
      of
      payment to the prior payment in full of all other obligations of the Guarantor
      except for other guarantees or obligations of the Guarantor which by their
      terms
      are designated as ranking equally in right of payment with or subordinate to
      this Subordinated Guarantee.  This Subordinated Guarantee shall rank
      equally in right of payment with the Subordinated New Guarantee issued by the
      Guarantor as of the same date as this Subordinated Guarantee.

    


    SECTION
      12.  Governing Law.  This Subordinated Guarantee
      shall be governed by, and construed in accordance with, the laws of the State
      of
      New York.

    


    SECTION
      13.  Submission to
      Jurisdiction:  Waiver of Immunities.  The Guarantor
      irrevocably (i) agrees that any legal action or proceeding against it arising
      out of or in connection with this Subordinated Guarantee or for recognition
      or
      enforcement of any judgment rendered against it in connection with this
      Subordinated Guarantee may be brought in any court in New York City, New York
      (a
      "New York Court"); (ii) agrees that by execution and delivery of this
      Subordinated Guarantee, the Guarantor hereby irrevocably accepts and submits
      to
      the non-exclusive jurisdiction of any New York Court in personam,
      generally and unconditionally with respect to any such action or proceeding
      for
      itself and in respect of its property, assets and revenues; and (iii) waives,
      to
      the fullest extent permitted by law, any objection which it may now or hereafter
      have to the laying of venue of any such action or proceeding brought in any
      New
      York Court and any claim that any such action or proceeding has been brought
      in
      an inconvenient forum.

    


    SECTION
      14.  Severability.  Any provision of this
      Subordinated Guarantee which is illegal, invalid, prohibited or unenforceable
      in
      any jurisdiction shall, as to such jurisdiction, be ineffective to the extent
      of
      such illegality, invalidity, prohibition or unenforceability without
      invalidating the remaining provisions hereof and any such illegality,
      invalidity, prohibition or unenforceability in any jurisdiction shall not
      invalidate or render unenforceable such provision in any other
      jurisdiction.

    


    SECTION
      15.  Entire Agreement.  This Subordinated Guarantee
      embodies the entire undertaking of the Guarantor with respect to the subject
      matter hereof and supersedes any prior written or oral agreements and
      understandings relating to the subject matter hereof.

    


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    IN
      WITNESS WHEREOF, the Guarantor has caused this Subordinated Guarantee to be
      duly
      executed and delivered by its officers, thereunto duly authorized as an
      instrument under seal, effective as of the date first above
      written.

    


    


    SUN
      LIFE ASSURANCE COMPANY OF CANADA (U.S.)

    


    


    By:
      /s/ Robert C.
      Salipante                          

    


    Name:
      Robert C.
      Salipante                          

    


    Title:  President                                            

    


    


    By:
      /s/ Scott M.
      Davis                                 

    


    Name:
      Scott M.
      Davis                                 

    


    Title:  Senior
      Vice President and General

    Counsel