EXECUTION COPY
ANCHOR CONSENT AND AGREEMENT
CONSENT AND AGREEMENT dated as of August 1, 1999 among ANCHOR NATIONAL LIFE
INSURANCE COMPANY, an Arizona stock life insurance corporation ("Anchor"), ANLIC
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INSURANCE COMPANY (HAWAII), LTD., a Hawaii stock captive insurance company
("ANLIC (Hawaii)"), and CITICORP NORTH AMERICA, INC., as agent (the "Agent").
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RECITALS
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A. Anchor and ANLIC (Hawaii) have entered into a Reinsurance Agreement
dated as of August 1, 1999 (said Agreement, as it may be supplemented, amended,
replaced or otherwise modified from time to time, being the "Reinsurance
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Agreement"; unless otherwise defined herein, terms defined in the Reinsurance
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Agreement and in the Servicing Agreement (as defined in the Reinsurance
Agreement) are used herein as therein defined).
B. To obtain financing necessary to perform its obligations in
connection with the Reinsurance Agreement, ANLIC (Hawaii) will sell to Corporate
Receivables Corporation (the "Purchaser") a promissory note owed to ANLIC
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(Hawaii) and will grant to the Agent and to Citibank, N.A., respectively,
security interests in all right, title and interest of ANLIC (Hawaii) in and to
certain collateral (as described below).
C. The execution and delivery of this Consent and Agreement is a
condition precedent to ANLIC (Hawaii) obtaining such financing.
D. This Consent and Agreement is intended to clarify the procedures by
which Anchor will fulfill its payment obligations as set forth in the
Reinsurance Agreement.
NOW THEREFORE, to induce the Purchaser to purchase the promissory note
being sold by ANLIC (Hawaii) and in consideration of the premises and of other
valuable consideration, receipt of which is hereby acknowledged, the parties
hereto agree as follows:
Section 1. No Change in Reinsurance Agreement. Nothing in this Consent
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and Agreement shall amend or otherwise modify in any respect the Reinsurance
Agreement, the terms of which (including but not limited to the netting
provisions of Section 8.5 thereof) shall exclusively govern whether Anchor or
ANLIC (Hawaii) shall at any time have any obligation to make any payment
thereunder. The Agent agrees that, while assuming the power to enforce the
rights and remedies of ANLIC (Hawaii), the Agent will not interfere with or
impede the duties and obligations that ANLIC (Hawaii) owes to Anchor under the
Reinsurance Agreement.
Section 2. Notices and Acknowledgments. (a) Anchor hereby
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acknowledges notice of and consents to the assignment and grant by ANLIC
(Hawaii) to the Agent of a security interest in all right, title and interest of
ANLIC (Hawaii) in and to certain collateral, including but not limited to all
right, title and interest of ANLIC (Hawaii) in and to each of the agreements set
forth on Schedule 1 hereto and the proceeds thereof (such agreements, as the
same may be amended, supplemented or modified from time to time, being the
"Assigned Agreements").
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(b) Anchor hereby acknowledges notice of and consents to the assignment
and grant by ANLIC (Hawaii) to Citibank, N.A. of a security interest in all
right, title and interest of ANLIC (Hawaii) in and to certain collateral,
including but not limited to all right, title and interest of ANLIC (Hawaii) in
and to each of the Assigned Agreements.
Section 3. Appointment and Authorization of the Agent. (a) ANLIC
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(Hawaii) hereby appoints the Agent as ANLIC (Hawaii)'s attorney-in-fact, with
full authority in the place and stead of ANLIC (Hawaii) and in the name of ANLIC
(Hawaii) or otherwise, from time to time in the Agent's discretion, to take any
action and to execute any instrument that the Agent may deem necessary or
advisable for the purpose of exercising or enforcing (or abstaining from
exercising or enforcing) any right, remedy, power or privilege of ANLIC (Hawaii)
under any Reinsurance Document or Assigned Agreement, including, without
limitation:
(i) to ask for, demand, collect, sue for, recover, compromise, receive
and give acquittance and receipts for moneys due and to become due under or in
respect of any of the Reinsurance Documents or Assigned Agreements,
(ii) to receive, indorse and collect any drafts or other instruments,
documents and chattel paper in connection with this Section 3(a),
(iii) to file any claims or take any action or institute any
proceedings that the Agent may deem necessary or desirable for the collection of
any amounts payable under any Assigned Agreement or to enforce compliance with
the terms of any Reinsurance Document or Assigned Agreement or the rights of
ANLIC (Hawaii) or the Agent with respect thereto.
(b) Anchor acknowledges and agrees that all rights of ANLIC (Hawaii)
under the Reinsurance Documents and the Assigned Agreements will be exercised by
the Agent.
(c) Neither the Agent nor any of its directors, officers, agents or
employees shall be liable for any action taken or omitted to be taken by it or
them as Agent or attorney-in-fact under or in connection with any Reinsurance
Document or Assigned Agreement (including the Agent's servicing, administering
or collecting any amounts payable), except for its own gross negligence or
willful misconduct. Without limiting the generality of the foregoing, the
Agent: (i) may consult with legal counsel (including counsel for Anchor, ANLIC
(Hawaii) or any of their respective Affiliates), independent public accountants
and other experts selected by it and shall not be liable for any action taken or
omitted to be taken in good faith by it in accordance with the advice of such
counsel, accountants or experts; (ii) makes no warranty or representation to
Anchor, ANLIC (Hawaii) or any of their respective Affiliates, and shall not
be responsible to Anchor, ANLIC (Hawaii) or any of their
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respective Affiliates, for any statement, warranty or representation (whether
written or oral) made in or in connection with this Consent and Agreement, any
Reinsurance Document or Assigned Agreement or any instrument or document
furnished pursuant to any of the foregoing (collectively, the "Consent
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Documents"); (iii) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or conditions of any
Consent Document on the part of Anchor, ANLIC (Hawaii) or any other Person or
to inspect the property (including the books and records) of Anchor, ANLIC
(Hawaii) or any other Person; (iv) shall not be responsible to Anchor, ANLIC
(Hawaii) or any other Person for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of any Consent Document; and
(v) shall incur no liability under or in respect of any Consent Document by
acting upon any notice (including notice by telephone), consent, certificate or
other instrument or writing (which may be by telecopier, telegram, cable or
telex) believed by it to be genuine and signed or sent by the proper party or
parties.
(d) CNAI and Affiliates. With respect to any right, remedy, privilege
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or power of CNAI individually, CNAI shall have the same rights, remedies,
privileges and powers and may exercise the same as though it were not the Agent
and not the attorney-in fact of ANLIC (Hawaii). CNAI and its Affiliates may
generally engage in any kind of business with Anchor, any of its Affiliates and
any Person who may do business with or own securities of Anchor or any of its
Affiliates, all as if CNAI were not the Agent and were not the attorney-in-fact
of ANLIC (Hawaii) and without any duty to account therefore to Anchor, ANLIC
(Hawaii) or any other Person.
Section 4. Agreements. In furtherance of Anchor's consent to the grant
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by ANLIC (Hawaii) of the security interest referenced in Section 2, Anchor
hereby agrees with the Agent as follows:
(a) Anchor will make all payments to be made by it under or in
connection with each Assigned Agreement (which shall at all times be subject to
the netting provisions of Section 8.5 of the Reinsurance Agreement) directly to
the non-interest bearing cash collateral account that ANLIC (Hawaii) has opened
with Citibank, N.A. at its office at 399 Park Avenue, New York, New York 10043,
Account No. 40800176 strictly in accordance with the terms of such Assigned
Agreement.
(b) Except solely to the extent set forth in Section 8.5 of the
Reinsurance Agreement, the obligation of Anchor to make the payments referred to
in Section 4(a) is absolute and unconditional and shall not be affected by any
circumstance, including, without limitation, (i) any set-off, counterclaim,
recoupment, defense or other right against Anchor, ANLIC (Hawaii) or any other
Person for any reason whatsoever (whether in connection with the transactions
contemplated in the Reinsurance Documents or in connection with any unrelated
transaction), (ii) any insolvency, bankruptcy, reorganization or similar
proceeding by or against Anchor, ANLIC (Hawaii), the Purchaser, the Agent or any
other Person or (iii) any other circumstance, happening or event whatsoever,
whether foreseen or unforeseen and whether or not similar to any of the
foregoing. All such payments made by Anchor shall be final, and Anchor will not
seek to recover from the Agent for any reason any such payment once made.
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(c) The Agent shall be exclusively entitled to exercise any and all
rights and remedies of ANLIC (Hawaii) under each and every Assigned Agreement in
accordance with the terms of such Assigned Agreement, and Anchor shall comply in
all respects with such exercise. The Agent shall not have any obligation to
perform any duty of ANLIC (Hawaii) or any other Person under any Assigned
Agreement or any Reinsurance Document.
(d) Anchor will not (i) cancel or terminate any Assigned Agreement or
consent to or accept any cancellation or termination thereof except pursuant to
the terms thereof in effect on the date hereof, (ii) amend or otherwise modify
any Reinsurance Document or any Assigned Agreement or this Consent and Agreement
or (iii) make any payment of amounts to become due by it under or in connection
with any Assigned Agreement except as expressly provided therein.
Section 5. Representations and Warranties. Anchor represents and
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warrants as of the date hereof:
(a) Anchor is a stock life insurance company duly incorporated, validly
existing and in good standing under the laws of Arizona.
(b) The execution, delivery and performance by Anchor of this Consent
and Agreement are within Anchor's corporate powers, have been duly authorized by
all necessary corporate action, and do not contravene (i) Anchor's articles of
incorporation or by-laws or (ii) law or any regulation or contractual
restriction binding on or affecting Anchor.
(c) No authorization or approval or other action by, and no notice to
or filing with, any Governmental Authority is required for the due execution,
delivery and performance by Anchor of this Consent and Agreement, or for the
exercise by the Agent of its rights and remedies under this Consent and
Agreement, except for such other filings with and approvals as have been duly
made and obtained prior to the date hereof.
(d) This Consent and Agreement has been duly executed and delivered by
Anchor and is the legal, valid and binding obligation of Anchor enforceable
against Anchor in accordance with its terms.
Section 6. Governing Law, Etc. THIS CONSENT AND AGREEMENT (I) SHALL BE
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GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
(ii) may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed shall be deemed
to be an original and all of which taken together shall constitute but one and
the same agreement, and (iii) shall be binding upon, and inure to the benefit of
and be enforceable by, each of the parties hereto and their respective
successors, transferees and assigns.
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IN WITNESS WHEREOF, each of the undersigned has duly executed this Consent
and Agreement as of the day and year first above written.
ANCHOR NATIONAL LIFE INSURANCE COMPANY
By:_______________________________________
Title:
ANLIC INSURANCE COMPANY (HAWAII), LTD.
By:_______________________________________
Title:
CITICORP NORTH AMERICA, INC., as Agent
By:_______________________________________
Title: Vice President
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Schedule 1
Assigned Agreements
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1. Reinsurance Agreement, dated as of August 1, 1999, between Anchor
National Life Insurance Company and ANLIC Insurance Company (Hawaii), Ltd., as
such agreement is supplemented, amended, replaced or otherwise modified from
time to time (the "Reinsurance Agreement"), including, without limitation, the
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Allocation Procedures, Collection Procedures and Fixed Account Segregated Asset
Requirements and Procedures, as the foregoing are defined in the Reinsurance
Agreement.
2. Servicing Agreement, dated as of August 1, 1999, among ANLIC Insurance
Company (Hawaii), Ltd., Anchor Insurance Company (Hawaii), Ltd., Anchor National
Life Insurance Company and SunAmerica Life Insurance Company, as such agreement
is supplemented, amended, replaced or otherwise modified from time to time (the
"Servicing Agreement"), including, without limitation, the Daily Reinsurance
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Servicer Report and the Reinsurance Servicer Report, as the foregoing are
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defined in the Servicing Agreement.
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3. Irrevocable Standing Instructions among Anchor National Life Insurance
Company, ANLIC Insurance Company (Hawaii), Ltd., State Street Bank and Trust
Company, Variable Separate Account, Anchor Pathway Fund, Anchor Series Trust and
SunAmerica Series Trust, as such instructions are supplemented, amended,
replaced or otherwise modified from time to time, together with all Schedules
and Exhibits thereto.
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