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EXHIBIT 99.9
FUND PARTICIPATION AGREEMENT
AGREEMENT, made on this 16th day of September, 1992, between
ANCHOR NATIONAL LIFE INSURANCE COMPANY ("Anchor"), a life insurance
company organized under the laws of the State of California, on
behalf of itself and on behalf of VARIABLE SEPARATE ACCOUNT (f/k/a
"AMERICAN PATHWAY II - SEPARATE ACCOUNT OF ANCHOR NATIONAL LIFE
INSURANCE COMPANY," ("Variable Account"), a separate account of
Anchor existing pursuant to the laws of the State of California,
and SUNAMERICA SERIES TRUST ("Fund"), an open-end management
investment company established pursuant to the laws of the
Commonwealth of Massachusetts under a Declaration of Fund dated
September 11, 1992, which is composed of multiple investment series
("Portfolios").
WITNESSETH:
WHEREAS, Anchor, by resolution, has established the Variable
Account on its books of account for the purpose of funding certain
variable annuity contracts issued by it; and
WHEREAS, the Variable Account is divided into various
portfolios ("Divisions") under which the income, gains and losses,
whether or not realized, from assets allocated to each such
Division are, in accordance with the applicable variable annuity
contracts, credited to or charged against such Division without
regard to any income, gains or losses of other Divisions or
separate accounts of Anchor; and
WHEREAS, the Variable Account is registered with the Securities
and Exchange Commission as a unit investment trust under the
Investment Company Act of 1940 ("Act"); and
WHEREAS, the Fund, a registered, open-end, diversified
management investment company, is divided into various Portfolios,
each Portfolio being subject to separate investment objectives and
restrictions which may not be changed without a majority vote of
the shareholders of each such Portfolio; and
WHEREAS, the Variable Account desires to purchase shares of
the Fund in connection with the issuance of certain variable
annuity contracts to be marketed under the name Polaris
(collectively with other contracts and policies that may be funded
through the Fund, "Contracts"); and
WHEREAS, the Fund agrees to make shares of certain of its
Portfolios available to serve as underlying investment media for
the corresponding Divisions of the Variable Account; and
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WHEREAS, SUNAMERICA SECURITIES, INC., and ROYAL ALLIANCE
ASSOCIATES, INC. (collectively, "Distributors"), which serve as the
distributors for the Contracts funded in the Variable Account
pursuant to an agreement with Anchor on behalf of itself and the
Variable Account are each a broker-dealer registered as such under
the Securities Exchange Act of 1934 and a member of the National
Association of Securities Dealers, Inc.;
NOW, THEREFORE, in consideration of the foregoing and of
mutual covenants and conditions set forth herein and for other good
and valuable consideration, Anchor (on behalf of itself and the
Variable Account) and the Fund hereby agree as follows:
1. The Contracts funded by the Variable Account will provide
for the allocation of net amounts among certain Divisions of the
Variable Account for investment in the shares of the particular
portfolio of the Fund underlying each such Division. The selection
of a particular Division is to be made (and such selection may be
changed) in accordance with the terms of the applicable Contract.
2. No representation is made as to the number or amount of
such Contracts to be sold. Anchor, pursuant to its agreement with
Distributors, will make reasonable efforts to market those
Contracts it determines from time to time to offer for sale and,
although it is not required to offer for sale new Contracts, Anchor
will accept payments and otherwise service existing Contracts
funded in the Variable Account.
3. Fund shares to be made available to the respective
Divisions of the Variable Account shall be sold by each of the
respective Portfolios of the Fund and purchased by Anchor for that
Division at the net asset value next computed after receipt of each
order, as established in accordance with the provisions of the then
current prospectus of the Fund. Shares of a particular Portfolio
of the Fund shall be ordered in such quantities and at such times
as determined by Anchor to be necessary to meet the requirements of
those Contracts having amounts allocated to the Division for which
the Fund Portfolio shares serve as the underlying investment
medium. Orders and payments for shares purchased will be sent
promptly to the Fund and will be made payable in the manner
established from time to time by the Fund for the receipt of such
payments. The Fund reserves the right to delay transfer of its
shares until the payment check has cleared. The Fund has the
obligation to insure that its shares to be made available to the
appropriate Division(s) under the Contracts are registered at all
times under the Securities Act of 1933 ("1933 Act").
4. The Fund will redeem the shares of the various Portfolios
when requested by Anchor on behalf of the corresponding Division of
the Variable Account at the net asset value next computed after
receipt of each request for redemption, as established in
accordance with the provisions of the then current prospectus of
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the Fund. The Fund will make payment in the manner established
from time to time by the Fund for the receipt of such redemption
requests, but in no event shall payment be delayed for a greater
period than is permitted by the Act.
5. Transfer of the Fund's shares will be by book entry only.
No stock certificates will be issued to the Variable Account.
Shares ordered from a particular Portfolio to the Fund will be
recorded in an appropriate title for the corresponding Division of
the Variable Account.
6. The Fund shall furnish notice promptly to Anchor of any
dividend or distribution payable on its shares which are subject to
this Agreement. All of such dividends and distributions as are
payable on each of the Portfolio shares in the title for the
corresponding Division of the Variable Account shall be
automatically reinvested in additional shares of that Portfolio of
the Fund. The Fund shall notify Anchor of the number of shares so
issued.
7. All expenses incident to the performance of the Fund
under this Agreement shall be paid by the Fund. The Fund shall
ensure that all of its shares which are subject to this Agreement
are registered and authorized for issue in accordance with
applicable federal and state laws prior to their purchase by the
Variable Account. Anchor shall bear none of the expenses for the
cost of registration of the Fund's shares, preparation of the
Fund's prospectuses, proxy materials and reports, the distribution
of such items to shareholders, the preparation of all statements
and notices required by any federal or state law or any taxes on
the issue or transfer of the Fund's shares subject to this
Agreement.
8. Anchor, either directly or through Distributors, shall
make no representations concerning the Fund's shares which are
subject to this Agreement other than those contained in the then
current prospectus of the Fund and in printed information
subsequently issued by the Fund as supplemental to such prospects.
9. Anchor and the Fund acknowledge that in the future, the
Fund's shares may become available for investment by separate
accounts of other insurance companies, which may or may not be
affiliated persons (as that term is defined in the Act) of Anchor
(collectively with Anchor, "Participating Insurers"). In such
event, (a) the Fund shall undertake that its Board of Trustees
("Board") will monitor the Fund for the existence of material
irreconcilable conflicts that may arise between the Contract owners
of Participating Insurers, for the purpose of identifying and
remedying any such conflict and (b) paragraphs 10, 11 and 12 shall
apply. In discharging its responsibilities under paragraphs 10,
11 and 12 hereinafter, Anchor will cooperate and coordinate, to the
extent necessary, with the Board and with other Participating
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Insurers. The Fund agrees that it will require, as a condition to
participation, that all Participating Insurers shall have
obligations and responsibilities regarding conflicts of interest
corresponding to those that are agreed to herein by Anchor pursuant
to such paragraphs 10, 11 and 12 and pursuant to this paragraph 9.
10. Anchor shall provide pass-through voting privileges to
all variable Contract owners so long as the U.S. Securities and
Exchange Commission continues to interpret the Act to require pass-
through voting privileges for variable Contract owners. Anchor
shall be responsible for assuring that the Variable Account
calculates voting privilege in a manner consistent with separate
accounts of other Participating Insurers, as determined by the
Board. Anchor will vote shares for which it has not received
voting instructions in the same proportion as it votes shares for
which it has received instructions.
11. Anchor will report to the Board any potential or existing
conflicts of which it is or becomes aware between any of its
Contract owners or between any of its Contract owners and Contract
owners of other Participating Insurers. Anchor will be responsible
for assisting the Board in carrying out its responsibilities to
identify material conflicts by providing the Board with all
information available to it that is reasonably necessary for the
Board to consider any issues raised, including information as to a
decision by Anchor to disregard voting instructions of its Contract
owners.
12. The Board's determination of the existence of an
irreconcilable material conflict and its implications shall be made
known promptly by it to Anchor and other Participating Insurers.
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, 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 Portfolio are being managed; (e) a
difference in voting instructions given by variable annuity
Contract owners and variable life insurance Contract owners or by
Contract owners of different Participating Insurers; or (f) a
decision by a Participating Insurer to disregard the voting
instructions of variable Contract owners.
13. If it is determined by a majority of the Board or a
majority of its disinterested Trustees that a material
irreconcilable conflict exists that affects the interests of Anchor
Contract owners, Anchor shall, in cooperation with other
Participating Insurers whose Contract owners' interests are also
affected by the conflict, take whatever steps are necessary to
remedy or eliminate the irreconcilable material conflict, which
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steps could include: (a) withdrawing the assets allocable to the
Variable Account from the Fund or any portfolio and reinvesting
such assets in a different investment medium, including another
Portfolio of the Fund, or submitting the question of whether such
segregation should be implemented to a vote of all affected
Contract owners and, as appropriate, segregating the assets of any
particular group (e.g., annuity Contract owners or life insurance
Contract owners) that votes in favor of such segregation, or
offering to the affected Contract owners of the option of making
such a change; and (b) establishing a new registered management
investment company or managed separate account. Anchor shall take
such steps at its expense if the conflict affects solely the
interests of the owners of Anchor Contracts, but shall bear only
its equitable portion of any such expense if the conflict also
affects the interest of the Contract owners of one or more
Participating Insurers other than Anchor, provided: that this
sentence shall not be construed to require the Fund to bear any
portion of such expense. If a material irreconcilable conflict
arises because of Anchor's decision to disregard Contract owner
voting instructions and that decision represents a minority
position or would preclude a majority vote, Anchor may be required,
at Fund's election, to withdraw the Variable Account's investment
in the Fund, and no charge or penalty will be imposed against the
Variable Account as a result of such a withdrawal. Anchor agrees
to take such remedial action as may be required under this
paragraph 13 with a view only to the interests of its Contract
owners. For purposes of this paragraph 13, a majority of the
disinterested members of the Board shall determine whether or not
any proposed action adequately remedies any irreconcilable
conflict, but in no event will Fund be required to establish a new
funding medium for any variable Contracts. Anchor shall not be
required by this paragraph 13 to establish a new funding medium for
any variable Contract if an offer to do so has been declined by
vote of a majority of affected Contract owners.
14. This Agreement shall terminate:
(a) at the option of Anchor or the Fund upon 60 days'
advance written notice to all other parties to this
Agreement; or
(b) at the option of Anchor if any of the Fund's shares
are not reasonably available to meet the
requirements of the Contracts funded in the
Variable Account as determined by Anchor. Prompt
notice of election to terminate shall be furnished
by Anchor; or
(c) at the option of Anchor upon institution of formal
proceedings against the Fund by the Securities and
Exchange Commission; or
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(d) upon the vote of Contract owners having an interest
in a particular Division of the Variable Account to
substitute the shares of another investment company
for the corresponding Fund Portfolio shares in
accordance with the terms of the Contracts for
which those Fund shares had been selected to serve
as the underlying investment medium. Anchor will
give 30 days' prior written notice to the Fund of
the date of any proposed action to replace the
Fund's shares; or
(e) in the event the Fund's shares are not registered,
issued or sold in accordance with applicable state
and/or federal law or such law precludes the use of
such shares as the underlying investment medium of
the Contracts funded in the Variable Account.
Prompt notice shall be given by each party to all
other parties in the event that the conditions
stated in subsections (b), (c) or (d) of this
paragraph 14 should occur.
15. Notwithstanding any other provisions of this Agreement,
the obligations of the Fund hereunder are not personally binding
upon any of the trustees, shareholders, officers, employees or
agents of the Fund; resort in satisfaction of such obligations
shall be had only to the assets and property of the Fund and not to
the private property of any of such Fund's trustees, shareholders,
officers, employees or agents.
16. This Agreement shall be construed in accordance with the
laws of the State of California.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
ANCHOR NATIONAL LIFE INSURANCE COMPANY
By: /s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
President and Chief Executive Officer
VARIABLE SEPARATE ACCOUNT
(f/k/a AMERICAN PATHWAY II - SEPARATE
ACCOUNT OF ANCHOR NATIONAL LIFE INSURANCE
COMPANY)
BY: ANCHOR NATIONAL LIFE INSURANCE
COMPANY
By: /s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
SUNAMERICA SERIES TRUST
By: /s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
Acknowledged and Agreed:
ROYAL ALLIANCE ASSOCIATES, INC.
By: /s/ Xxxxx X. Xxxxxx Dated: Septembert 19, 1992
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SUNAMERICA SECURITIES, INC.
By: /s/ Xxxxx X. Xxxxxx Dated: September 19, 1992
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