FORM OF
FUND PARTICIPATION AGREEMENT
THIS AGREEMENT is made this ___ day of _____, 2000, between NATIONS
ANNUITY TRUST, an open-end management investment company organized as a Delaware
business trust (the "Trust"), ANCHOR NATIONAL LIFE INSURANCE COMPANY, a life
insurance company organized under the laws of the State of Arizona (the
"Company"), on its own behalf and on behalf of each segregated asset account of
the Company set forth on Schedule A, as may be amended from time to time (the
"Accounts"), and SunAmerica Capital Services, Inc. ("Distributor"), a registered
broker-dealer.
W I T N E S S E T H:
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WHEREAS, the Trust has registered with the Securities and Exchange
Commission (the "SEC") as an open-end management investment company under the
Investment Company Act of 1940, as amended (the "1940 Act"), and has registered
the offer and sale of its shares under the Securities Act of 1933, as amended
(the "1933 Act"); and
WHEREAS, the Trust desires to act as an investment vehicle for separate
accounts established for variable annuity contracts, and may, in the future,
desire to act as an investment vehicle for separate accounts established for
variable life insurance policies, in each case, to be offered by insurance
companies that have entered into participation agreements with the Trust (the
"Participating Insurance Companies"); and
WHEREAS, the beneficial interest in the Trust is divided into several
series of shares, each series representing an interest in a particular managed
portfolio of securities and other assets (the "Funds"); and
WHEREAS, the Company has registered or will register certain variable
life insurance policies and/or variable annuity contracts under the 1933 Act
(the "Contracts"); and
WHEREAS, the Company has registered or will register each Account as a
unit investment trust under the 1940 Act; and
WHEREAS, the Company desires to utilize shares of one or more Funds as
an investment vehicle of the Accounts; and
WHEREAS, the Company desires to cooperate fully with Trust so that
Trust may comply with all necessary reporting and disclosure obligations, the
Company will coordinate with Trust on such matters and will provide to Trust all
necessary information, including disclosure documents, in a timely manner; and
WHEREAS, Distributor serves as the distributor for the Contracts funded
in the Accounts pursuant to an agreement with the Company on behalf of itself
and the Accounts, is a broker-dealer registered as such under the Securities
Exchange Act of 1934, as amended (the "1934 Act"), and a member of the National
Association of Securities Dealers, Inc.;
NOW THEREFORE, in consideration of their mutual promises, the parties
agree as follows:
ARTICLE i
Sale of Trust Shares
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1.1 The Trust shall make shares of its Funds available to the Accounts
at the net asset value next computed after receipt of such purchase order by the
Trust (or its agent), as established in accordance with the provisions of the
then current prospectus and statement of additional information (collectively,
the "Prospectus") of the Trust. Shares of a particular Fund of the Trust shall
be ordered in such quantities and at such times as determined by the Company to
be necessary to meet the requirements of the Contracts. The Officers or Trustees
of the Trust (the "Trustees") may refuse to sell shares of any Fund to any
person, or suspend or terminate the offering of shares of any Fund if such
action is required by law or by regulatory authorities having jurisdiction or
is, in the sole discretion of the Officers or Trustees acting in good faith and
in light of their fiduciary duties under federal and any applicable state laws,
necessary in the best interests of the shareholders of such Fund.
1.2 The Trust will redeem any full or fractional shares of any Fund
when requested by the Company on behalf of an Account at the net asset value
next computed after receipt by the Trust (or its agent) of the request for
redemption, as established in accordance with the provisions of the then current
Prospectus of the Trust. The Trust shall make payment for such shares in the
manner established from time to time by the Trust, but in no event shall payment
be delayed for a greater period than is permitted by the 0000 Xxx.
1.3 For the purposes of Sections 1.1 and 1.2, the Trust hereby appoints
the Company as its agent for the limited purpose of receiving and accepting
purchase and redemption orders resulting from investment in and payments under
the Contracts. Receipt by the Company shall constitute receipt by the Trust
provided that (i) such orders are received by the Company in good order prior to
the time the net asset value of each Fund is priced in accordance with its
Prospectus and (ii) the Trust receives written notice of such orders by 9:30
a.m. New York time on the next following Business Day. "Business Day" shall mean
any day on which the New York Stock Exchange is open for trading and on which
the Trust calculates its net asset value pursuant to the rules of the SEC.
1.4 Purchase orders that are transmitted to the Trust in accordance
with Section 1.3 shall be paid by the Company no later than 12:00 noon New York
time on the same Business Day that the Trust receives notice of the order.
Payments shall be made in federal funds transmitted by wire.
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1.5 Issuance and transfer of the Trust's shares will be by book entry
only. Stock certificates will not be issued to the Company or the Account.
Shares ordered from the Trust will be recorded in the appropriate title for each
Account or the appropriate subaccount of each Account.
1.6 The Trust shall furnish prompt notice to the Company of any income
dividends or capital gain distributions payable on the Trust's shares. The
Company hereby elects to receive all such income dividends and capital gain
distributions as are payable on a Fund's shares in additional shares of that
Fund. The Trust shall notify the Company of the number of shares so issued as
payment of such dividends and distributions.
1.7 The Trust shall make the net asset value per share for each Fund
available to the Company on a daily basis as soon as reasonably practical after
the net asset value per share is calculated and shall use its best efforts to
make such net asset value per share available by 7 p.m. New York time.
1.8 The Trust agrees that its shares will be sold only to Participating
Insurance Companies and their separate accounts and to certain qualified pension
and retirement plans to the extent permitted by any exemptive order that may be
obtained by the Trust from the SEC (any such order is referred to herein as the
Exemptive Order). No shares of any Fund will be sold directly to the general
public. The Company agrees that Trust shares will be used only for the purposes
of funding the Contracts and Accounts listed in Schedule A, as amended from time
to time.
1.9 The Trust agrees that, to the extent required by the SEC pursuant
to the Exemptive Order or otherwise, all Participating Insurance Companies shall
have the obligations and responsibilities regarding pass-through voting and
conflicts of interest corresponding to those contained in Section 2.7 and
Article IV of this Agreement.
ARTICLE II
Obligations of the Parties
--------------------------
2.1. The Trust shall prepare and be responsible for filing with the SEC
and any state regulators requiring such filing, all shareholder reports,
notices, proxy materials (or similar materials such as voting instruction
solicitation materials), and Prospectuses of the Trust. The Trust shall bear the
costs of registration and qualification of its shares, preparation and filing of
the documents listed in this Section 2.1 and all taxes to which an issuer is
subject on the issuance and transfer of its shares.
2.2. As mutually agreed, the Trust shall either (a) provide the Company
with as many copies of the Trust's current Prospectus, annual report,
semi-annual report and other shareholder communications, including any
amendments or supplements to any of the foregoing, as the Company shall
reasonably request; or (b) provide the Company in electronic format (PDF) of
such documents in a form suitable for printing. The Trust shall provide the
Company with copies of any Trust-sponsored proxy materials in such quantity as
the Company shall reasonably require for distribution to Contract owners.
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2.3. The Trust and Company shall pay no fee or other compensation to
each other under this agreement. All expenses incident to the performance of the
Company's obligations under this agreement shall be borne by the Company, except
as expressly provided otherwise. All expenses incident to the performance of the
Trust's obligation under this agreement shall be borne by the Trust, except as
expressly provided otherwise. The Company shall bear all costs associated with
printing and distributing such documents to persons who are not Contract owners,
including the costs of printing Prospectuses that are used for marketing
purposes. The Trust shall bear the costs of printing and distributing the
Trust's Prospectus, shareholder reports and other shareholder communications to
Contract owners for which the Trust is serving or is to serve as an investment
vehicle. If the parties agree to have such documents printed by the Company in
accordance with Section 2.2(b), the Trust shall reimburse the Company for all
actual reasonable expenses incurred in connection therewith. The Trust shall
bear the costs of distributing Trust sponsored proxy materials (or similar
materials such as voting solicitation instructions) to Contract owners. The
Company assumes sole responsibility for ensuring that all proxy materials are
delivered to Contract owners in accordance with applicable federal and state
securities laws.
2.4. The Company shall furnish, or cause to be furnished, to the Trust
or its designee, a copy of each Contract Prospectus in which the Trust is named
at least ten Business Days prior to the filing of such document with the SEC.
The Company shall furnish, or shall cause to be furnished, to the Trust or its
designee, each piece of sales literature or other promotional material in which
the Trust is named, at least five Business Days prior to its use. No such
material shall be used if the Trust or its designee reasonably objects to such
use within five Business Days after receipt of such material.
2.5. The Company and the Distributor shall not give any information or
make any representations or statements on behalf of the Trust or concerning the
Trust other than information or representations or statements contained in and
accurately derived from the registration statement or Prospectus for the Trust
shares (as such registration statement and Prospectus may be amended or
supplemented from time to time), reports of the Trust, Trust-sponsored proxy
statements, or in sales literature or other promotional material approved by the
Trust or its designee, except as required by legal process or regulatory
authorities or with the written permission of the Trust or its designee.
2.6. The Trust shall not give any information or make any
representations or statements on behalf of the Company or the Distributor or
concerning the Company or the Distributor, the Accounts or the Contracts other
than information, statements or representations contained in and accurately
derived from the registration statement or Prospectus for the Contracts (as such
registration statement and Prospectus may be amended or supplemented from time
to time), or in materials approved by the Company for distribution including
sales literature or other promotional materials, except as required by legal
process or regulatory authorities or with the written permission of the Company.
2.7. So long as, and to the extent that the SEC requires pass-through
voting privileges for variable Contract owners, pursuant to the Exemption Order
or otherwise, the Company will provide pass-through voting privileges to owners
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of policies whose cash values are invested, through the Accounts, in shares of
the Trust. The Trust shall require all Participating Insurance Companies to
handle voting privileges in the same manner and the Company shall be responsible
for assuring that the Accounts handle voting privileges in the manner
established by the Trust. With respect to each Account, the Company will vote
shares of the Trust held by the Account and for which no timely voting
instructions from policyowners are received as well as shares it owns that are
held by that Account, in the same proportion as those shares for which voting
instructions are received. The Company and its agents will in no way recommend
or oppose or interfere with the solicitation of proxies for Trust shares held by
Contract owners without the prior written consent of the Trust, which consent
may be withheld in the Trust's sole discretion.
2.8. The Company shall promptly notify the Trust of any applicable
state insurance laws that restrict the Funds' investments or otherwise affect
the operation of the Trust and shall promptly notify the Trust of any changes in
such laws.
ARTICLE III
Representations and Warranties
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3.1. The Company represents and warrants that it is an insurance
company duly organized and in good standing under the laws of the State of
Arizona and that it has legally and validly established each Account as a
segregated asset account under such law on the date set forth in Schedule A. The
Company shall amend its registration statement under the 1933 Act and the 1940
Act from time to time as required in order to effect the continuous offering of
its Contracts. The Company shall register and qualify the Contracts for sale in
accordance with securities laws of the various states only if and to the extent
deemed necessary by the Company.
3.2. The Company represents and warrants that each Account has been
legally and validly established as a segregated asset account under applicable
state law and has been registered or, prior to any issuance or sale of the
Contracts, will be registered as a unit investment trust in accordance with the
provisions of the 1940 Act.
3.3. The Company represents and warrants that the Contracts or
interests in the Accounts will be issued and sold in compliance in all material
respects with all applicable federal and state securities and insurance
suitability requirements and are or, prior to issuance, will be registered as
securities under the 1933 Act.
3.4. The Trust represents and warrants that it is duly organized and
validly existing under the laws of the State of Delaware.
3.5. The Trust represents and warrants that the Trust shares offered
and sold pursuant to this Agreement will be registered under the 1933 Act and
the Trust shall be registered under the 1940 Act prior to any issuance or sale
of such shares. The Trust shall amend its registration statement under the 1933
Act and the 1940 Act from time to time as required in order to effect the
continuous offering of its shares. The Trust shall register and qualify its
shares for sale in accordance with the laws of the various states only if and to
the extent deemed advisable by the Trust.
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3.6. The Trust represents and warrants that the investments of each
Fund currently satisfies and will continue to satisfy the diversification
requirements set forth in either Section 1.817-5(b)(1) or 1.817-5(b)(2) of the
Treasury Regulations, subject to the "start-up period" and "liquidation period"
exceptions to diversification set forth in Section 1.817-5(c) of the Treasury
Regulations, during the periods set in said section.
3.7. The Company represents and warrants that (a) each of the Contracts
is and will continue to be a "variable contract," within the meaning of Section
817(d) of the Internal Revenue Code of 1986, as amended, (b) each Account is and
will continue to be a "segregated asset account" for U.S. federal income tax
purposes, and (c) shares of the Funds shall only be acquired by the Company on
behalf of the Accounts solely for the benefit of the Contracts.
3.8. The Distributor represents and warrants that it is duly registered
as a broker-dealer under the 1934 Act and a member of the National Association
of Securities Dealers, Inc.
3.9. The Trust represents that to the extent that it decides to finance
distribution expenses pursuant to Rule 12b-1 under the 1940 Act, the Trust
undertakes to have its Board of Trustees approve any plan under Rule 12b-1 to
finance distribution expenses.
ARTICLE V
Potential Conflicts
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4.1. The parties acknowledge that the Trust's shares may be made
available for investment to other Participating Insurance Companies. In such
event, the Trustees will monitor the Trust for the existence of any material
irreconcilable conflict between the interests of the contract owners of all
Participating Insurance Companies. An irreconcilable material conflict may arise
for a variety of reasons, including: (a) an action by any state insurance
regulatory authority; (b) a change in applicable federal or state insurance,
tax, or securities laws or regulations, or a public ruling, private letter
ruling, no-action or interpretative letter, or any similar action by insurance,
tax, or securities regulatory authorities; (c) an administrative or judicial
decision in any relevant proceeding; (d) the manner in which the investments of
any Fund are being managed; (e) a difference in voting instructions given by
variable annuity contract and variable life insurance contract owners; or (f) a
decision by an insurer to disregard the voting instructions of contract owners.
The Trustees shall promptly inform the Company if they determine that an
irreconcilable material conflict exists and the implications thereof.
4.2. The Company agrees to promptly report any potential or existing
conflicts of which it is aware to the Trustees. The Company will assist the
Trustees in carrying out their responsibilities under the Exemptive Order by
providing the Trustees with all information reasonably necessary for the
Trustees to consider any issues raised including, but not limited to,
information as to a decision by the Company to disregard Contract owner voting
instructions.
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4.3. If it is determined by a majority of the Trustees, or a majority
of its disinterested Trustees, that a material irreconcilable conflict exists
that affects the interests of Contract owners, the Company shall, in cooperation
with other Participating Insurance Companies whose contract owners are also
affected, at its expense and to the extent reasonably practicable (as determined
by the Trustees) take whatever steps are necessary to remedy or eliminate the
irreconcilable material conflict, which steps could include: (a) withdrawing the
assets allocable to some or all of the Accounts from the Trust or any Fund and
reinvesting such assets in a different investment medium, including (but not
limited to) another Fund of the Trust, or (b) submitting the question of whether
or not such segregation as described below should be implemented to a vote of
all affected Contract owners and, as appropriate, segregating the assets of any
appropriate group (i.e., annuity contract owners, life insurance contract
owners, or variable contract owners of one or more Participating Insurance
Companies) that votes in favor of such segregation, or offering to the affected
Contract owners the option of having their assets segregated; or (c)
establishing a new registered management investment company or separate account.
4.4. If a material irreconcilable conflict arises because of a decision
by the Company to disregard Contract owner voting instructions and that decision
represents a minority position or would preclude a majority vote, the Company
may be required, at the Trust's election, to withdraw the affected Account's
investment in the Trust and terminate this Agreement with respect to such
Account; provided, however that such withdrawal and termination shall be limited
to the extent required by the foregoing material irreconcilable conflict as
determined by a majority of the disinterested Trustees. Any such withdrawal and
termination must take place within six (6) months after the Trust gives written
notice that such an election has been made. Until the end of such six (6) month
period, the Trust shall continue to accept and implement orders by the Company
for the purchase and redemption of shares of the Trust.
4.5. If a material irreconcilable conflict arises because a particular
state insurance regulator's decision applicable to the Company conflicts with
the majority of other state regulators, then the Company will withdraw the
affect Account's investment in the Trust and terminate this Agreement with
respect to such Account within six (6) months after the Trustees inform the
Company in writing that it has determined that such decision has created an
irreconcilable material conflict; provided, however, that such withdrawal and
termination shall be limited to the extent required by the foregoing material
irreconcilable conflict as determined by a majority of the disinterested
Trustees. Until the end of such six (6) month period, the Trust shall continue
to accept and implement orders by the Company for the purchase and redemption of
shares of the Trust.
4.6. For purposes of Sections 4.3 through 4.6 of this Agreement, a
majority of the disinterested Trustees shall determine whether any proposed
action adequately remedies any irreconcilable material conflict, but in no event
will the Company be required to establish a new funding medium for the Contracts
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if an offer to do so has been declined by vote of a majority of Contract owners
materially adversely affected by the irreconcilable material conflict. In the
event that the Trustees determine that any proposed action does not adequately
remedy any irreconcilable material conflict, then the Company will withdraw the
Account's investment in the Trust and terminate this Agreement within six (6)
months after the Trustees inform the Company in writing of the foregoing
determination; provided, however, that such withdrawal and termination shall be
limited to the extent required by any such material irreconcilable conflict as
determined by a majority of the disinterested Trustees.
4.7. The Company shall at least annually submit to the Trustees such
reports, materials or data as the Trustees may reasonably request so that the
Trustees may fully carry out their duties and responsibilities as Trustees; and
said reports, materials and data shall be submitted more frequently if deemed
appropriate by the Trustees.
4.8. If and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended,
or Rule 6e-3 is adopted, to provide exemptive relief from any provision of the
1940 Act or the rules promulgated thereunder with respect to mixed or shared
funding (as defined in the Exemptive Order) on terms and conditions materially
different from those contained in the Exemptive Order, then the Trust and/or the
Participating Insurance Companies, as appropriate, shall take such steps as may
be necessary to comply with Rules 6e-2 and 6e-3(T), as amended, and Rule 6e-3,
as adopted, to the extent such rules are applicable. The provisions of the
Article IV shall become effective and shall continue in effect only so long as
the Trust operates pursuant to an Exemptive Order that contains conditions
substantially identical to those contained in this Article IV. The Company and
the Trustee agree to negotiate in good faith any modifications to the provisions
of this Article IV that may be necessary or appropriate to comply with the
Exemptive Order or any such Rule amendment or adoption.
ARTICLE V
Indemnification
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5.1. Indemnification By the Company. Except to the extent provided in
Sections 5.4 and 5.5, the Company agrees to indemnify and hold harmless the
Trust and its Trustees, officers, employees and agents and each person, if any,
who controls the Trust within the meaning of Section 15 of the 1933 Act
(collectively, the "Indemnified Parties" for purposes of this Article V) against
any and all losses, claims, damages, liabilities (including amounts paid in
settlement with the written consent of the Company) or expenses (including the
reasonable costs of investigating or defending any alleged loss, claim, damage,
liability or expense and reasonable legal counsel fees incurred in connection
therewith) (collectively, "Losses"), to which the Indemnified Parties may become
subject under any statute or regulation, or at common law or otherwise, insofar
as such Losses:
(a) arise out of or are based upon any untrue statements or
alleged untrue statements of any material fact contained in a registration
statement or Prospectus for the Contracts or for any fund managed by the Company
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or any affiliated Company that is available as an investment vehicle for the
Contracts (an "Anchor Fund"), or in the Contracts themselves or in sales
literature generated or approved by the Company on behalf of the Contracts, the
Anchor Funds, or the Accounts (or any amendment or supplement to any of the
foregoing) (collectively, "Company Documents" for the purposes of this Article
V), or arise out of or are based upon the omission or the alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, provided that this indemnity shall not
apply as to any Indemnified Party if such statement or omission or such alleged
statement or omission was made in reliance upon and was accurately derived from
written information furnished to the Company by or on behalf of the Trust for
use in Company Documents or otherwise for use in connection with the sale of the
Contracts or Trust shares; or
(b) arise out of or result from statements or representations
(other than statements or representations contained in and accurately derived
from Trust Documents as defined in Section 5.2(a)) or wrongful conduct of the
Company or persons under its control, with respect to the sale or distribution
of the Contracts, Anchor Fund shares or Trust shares; or
(c) arise out of or result from any untrue statement or
alleged untrue statement of a material fact contained in Trust Documents as
defined in Section 5.2(a) or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading if such statement or omission was made in reliance upon
and accurately derived from written information furnished to the Trust by or on
behalf of the Company or persons under its control; or
(d) arise out of or result from any failure by the Company to
provide the services or furnish the materials required under the terms of this
Agreement; or
(e) arise out of or result from any material breach of any
representation and/or warranty made by the Company in this Agreement or arise
out of or result from any other material breach of this Agreement by the
Company.
5.2. Indemnification By the Trust. Except to the extent provided in
Sections 5.4 and 5.5, the Trust agrees to indemnify and hold harmless the
Company and each of its directors, officers, employees and agents and each
person, if any, who controls the Company within the meaning of Section 15 of the
1933 Act (collectively, the "Indemnified Parties" for purposes of this Article
V) against any and all losses, claims, damages, liabilities (including amounts
paid in settlement with the written consent of the Trust) or expenses (including
the reasonable costs of investigating or defending any alleged loss, claim,
damage, liability or expense and reasonable legal counsel fees incurred in
connection therewith) (collectively, "Losses"), to which the Indemnified Parties
may become subject under any statute or regulation, or at common law or
otherwise, insofar as such Losses:
(a) arise out of or are based upon any untrue statements or
alleged untrue statements of any material fact contained in the registration
statement or Prospectus for the Trust (or any amendment or supplement thereto),
(collectively, "Trust Documents" for the purposes of this Article V), or arise
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out of or are based upon the omission or the alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, provided that this indemnity shall not apply as to any
Indemnified Party if such statement or omission or such alleged statement or
omission was made in reliance upon and was accurately derived from written
information furnished to the Trust by or on behalf of the Company or persons
under its control for use in Trust Documents or otherwise for use in connection
with the sale of the Contracts or Trust shares; or
(b) arise out of or result from statements or representations
(other than statements or representations contained in and accurately derived
from Company Documents) or wrongful conduct of the Trust or persons under its
control, with respect to the sale or distribution of the Contracts or Trust
shares; or
(c) arise out of or result from any untrue statement or
alleged untrue statement of a material fact contained in Company Documents or
the omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading if
such statement or omission was made in reliance upon and accurately derived from
written information furnished to the Company by or on behalf of the Trust or
persons under its control; or
(d) arise out of or result from any failure by the Trust to
provide the services or furnish the materials required under the terms of this
Agreement; or
(e) arise out of or result from any material breach of any
representation and/or warranty made by the Trust in this Agreement or arise out
of or result from any other material breach of this Agreement by the Trust.
5.3. Indemnification By the Distributor. Except to the extent provided
in Sections 5.4 and 5.5, the Distributor agrees to indemnify and hold harmless
the Trust and its Trustees, officers, employees and agents and each person, if
any, who controls the Trust within the meaning of Section 15 of the 1933 Act
(collectively, the "Indemnified Parties" for purposes of this Article V) against
any and all losses, claims, damages, liabilities (including amounts paid in
settlement with the written consent of the Distributor) or expenses (including
the reasonable costs of investigating or defending any alleged loss, claim,
damage, liability or expense and reasonable legal counsel fees incurred in
connection therewith) (collectively, "Losses"), to which the Indemnified Parties
may become subject under any statute or regulation, or at common law or
otherwise, insofar as such Losses:
(a) arise out of or are based upon any untrue statements or
alleged untrue statements of any material fact contained in a registration
statement or Prospectus for the Contracts or for any fund managed by the Company
or any affiliated Company that is available as an investment vehicle for the
Contracts (an "Anchor Fund"), or in the Contracts themselves or in sales
literature generated or approved by the Company on behalf of the Contracts, the
Anchor Funds, or the Accounts (or any amendment or supplement to any of the
foregoing) (collectively, "Company Documents" for the purposes of this Article
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V), or arise out of or are based upon the omission or the alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, provided that this indemnity shall not
apply as to any Indemnified Party if such statement or omission or such alleged
statement or omission was made in reliance upon and was accurately derived from
written information furnished to the Company by or on behalf of the Trust for
use in Company Documents or otherwise for use in connection with the sale of the
Contracts or Trust shares; or
(b) arise out of or result from statements or representations
(other than statements or representations contained in and accurately derived
from Trust Documents as defined in Section 5.2(a)) or wrongful conduct of the
Distributor or persons under its control, with respect to the sale or
distribution of the Contracts, Anchor Fund shares or Trust shares; or
(c) arise out of or result from any untrue statement or
alleged untrue statement of a material fact contained in Trust Documents as
defined in Section 5.2(a) or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading if such statement or omission was made in reliance upon
and accurately derived from written information furnished to the Trust by or on
behalf of the Distributor or persons under its control; or
(d) arise out of or result from any failure by the Distributor
to provide the services or furnish the materials required under the terms of
this Agreement; or
(e) arise out of or result from any material breach of any
representation and/or warranty made by the Distributor in this Agreement or
arise out of or result from any other material breach of this Agreement by the
Distributor.
5.4. Neither the Company, the Trust nor the Distributor shall be liable
under the indemnification provisions of Sections 5.1, 5.2 or 5.3, as applicable,
with respect to any Losses incurred or assessed against an Indemnified Party
that arise from such Indemnified party's willful misfeasance, bad faith or
negligence in the performance of such Indemnified Party's duties or by reason of
such Indemnified Party's reckless disregard of obligations or duties under this
Agreement.
5.5. Neither the Company, the Trust nor the Distributor shall be liable
under the indemnification provisions of Sections 5.1, 5.2 or 5.3, as applicable,
with respect to any claim made against an Indemnified Party unless such
Indemnified Party shall have notified the other party in writing within a
reasonable time after the summons, or other first legal process giving
information on the nature of the claim, shall have been served upon or otherwise
received by such Indemnified Party (or after such Indemnified Party shall have
received notice of service upon or other notification to any designated agent),
but failure to notify the party against whom indemnification is sought of any
such claim shall not relieve that party from any liability which it may have to
the Indemnified Party in the absence of Sections 5.1, 5.2 and 5.3.
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5.6. In case any such action is brought against any Indemnified Party,
the indemnifying party shall be entitled to participate, at its own expense, in
the defense of such action. The indemnifying party also shall be entitled to
assume the defense thereof, with counsel reasonably satisfactory to the party
named in the action. After notice from the indemnifying party to the Indemnified
Party of an election to assume such defense, the Indemnified Party shall bear
the fees and expenses of any additional counsel retained by it, and the
indemnifying party will not be liable to the Indemnified party under this
Agreement for any legal or other expenses subsequently incurred by such party
independently in connection with the defense thereof other than reasonable costs
of investigation.
ARTICLE VI
Termination
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6.1. This Agreement may be terminated by any party for any reason by
one years advance written notice delivered to the other parties.
6.2. Notwithstanding any termination of this Agreement, the Trust
shall, at the option of the Company, continue to make available additional
shares of the Trust (or any Fund) pursuant to the terms and conditions of this
Agreement for all Contracts in effect on the effective date of termination of
this Agreement, provided that the Company continues to pay the costs set forth
in Section 2.3.
6.3. The provisions of Article V shall survive the termination of this
Agreement, and the provision of Article IV and Section 2.8 shall survive the
termination of this Agreement as long as shares of the Trust are held on behalf
of Contract owners in accordance with Section 6.2.
ARTICLE VII
Notices
-------
Any notice shall be sufficiently given when sent by registered or
certified mail to the other party at the address of such party set forth below
or at such other address as such party may from time to time specify in writing
to the other party.
If to the Trust:
Nations Annuity Trust
NCI-002-33-31
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, Xx.
Corporate Secretary
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If to the Company:
_______________________
_______________________
_______________________
Attention: ______________
Title
If to the Distributor:
SunAmerica Capital Services, Inc.
_______________________
_______________________
Attention: ______________
Title
ARTICLE VIII
Miscellaneous
-------------
8.1. The captions in this Agreement are included for convenience of
reference only and in no way define or delineate any of the provisions hereof or
otherwise affect their construction or effect.
8.2. This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
8.3. This Agreement constitutes the entire agreement among the parties
with respect to the matters covered hereby. If any provision of this Agreement
shall be held or made invalid by a court decision, statute, rule or otherwise,
the remainder of the Agreement shall not be affected thereby.
8.4. This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the laws of the State of Delaware.
8.5. The parties to this Agreement acknowledge and agree that all
liabilities of the Trust arising, directly or indirectly, under this Agreement,
of any and every nature whatsoever, shall be satisfied solely out of the assets
of the Trust and that no Trustee, officer, agent or holder of shares of
beneficial interest of the Trust shall be personally liable for any such
liabilities. Obligations and liabilities with respect to a Fund may be satisfied
from the assets belonging to that Fund but no other assets.
8.6. Each party shall cooperate with each other party and all
appropriate governmental authorities (including without limitation the SEC, the
National Association of Securities Dealers, Inc., and state insurance
regulators) and shall permit such authorities reasonable access to its books and
records in connection with an investigation or inquiry relating to this
Agreement or the transactions contemplated hereby.
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8.7. The rights, remedies and obligations contained in this Agreement
are cumulative and are in addition to any and all rights, remedies and
obligations, at law or in equity, which the parties hereto are entitled to under
state and federal laws.
8.8. The parties to this Agreement acknowledge and agree that this
Agreement shall not be exclusive in any respect.
8.9. Neither this Agreement nor any rights or obligations hereunder may
be assigned by either party without the prior written approval of the other
party.
8.10. No provisions of this Agreement may be amended or modified in any
manner except by a written agreement properly authorized and executed by both
parties.
IN WITNESS WHEREOF, the parties have caused their duly authorized officers to
execute this Participation Agreement as of the date and year first above
written.
NATIONS ANNUITY TRUST
By:
----------------------------
A. Xxx Xxxxxx
President
ANCHOR NATIONAL LIFE INSURANCE
COMPANY
By:
----------------------------
SUNAMERICA CAPITAL SERVICES, INC.
By:
--------------------------
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Schedule A
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Separate Accounts
-----------------
Name of Separate Account
------------------------
15
