Exhibit 3(a)
DISTRIBUTION AGREEMENT
THIS AGREEMENT, entered into as of this _____ day of December, 2002 is
among First SunAmerica Life Insurance Company ("FSLIC"), a life insurance
company organized under the laws of the State of New York, on behalf of itself
and FS VARIABLE SEPARATE ACCOUNT ("Separate Account"), a separate account
established by FSLIC pursuant to the insurance laws of the State of New York,
and WM Funds Distributor, Inc. ("Distributor"), a corporation organized under
the laws of the State of Washington.
WITNESSETH:
WHEREAS, FSLIC issues to the public certain variable annuity contracts
identified on the contract specification sheet attached hereto as Attachment A
("Contracts"); and
WHEREAS, FSLIC, by resolution adopted on September 9, 1994, established the
Separate Account on its books of account, for the purpose of issuing variable
annuity contracts; and
WHEREAS, the Separate Account is registered with the Securities and
Exchange Commission ("Commission") as a unit investment trust under the
Investment Company Act of 1940 (File No. 811-08810); and
WHEREAS, the Contracts to be issued by FSLIC and funded through the
Separate Account are registered with the Commission under the Securities Act of
1933 for offer and sale to the public, and otherwise are in compliance with all
applicable laws; and
WHEREAS, the Distributor, a broker-dealer registered under the Securities
Exchange Act of 1934 and a member of the National Association of Securities
Dealers, Inc., proposes to act as distributor on an agency basis in the
marketing and distribution of the Contracts;
WHEREAS, FSLIC desires to obtain the services of the Distributor as
distributor of said Contracts issued by and funded through the Separate Account;
NOW THEREFORE, in consideration of the foregoing, and of the mutual
covenants and conditions set forth herein, and for other good and valuable
consideration, FSLIC, the Separate Account and Distributor hereby agree as
follows:
1. The Distributor will serve as distributor on an agency basis for the
Contracts which will be issued by FSLIC through the Separate Account. FSLIC
shall make the Contracts available to the Distributor for distribution
pursuant to this Agreement. The Distributor represents that it will
actively engage in its duties under this Agreement on a continuous basis
while the registration statements with respect to the Contracts (the
"Registration Statements") (or any other registration statements filed and
declared effective in lieu thereof) remains effective with respect to the
Contracts. It is understood that Distributor has no present intention of
engaging in sales of the Contracts on a retail basis and intends to
restrict its distribution activities to wholesaling activities.
2. The Distributor will, either directly or through an affiliate, provide
information and marketing assistance to licensed insurance agents and
broker-dealers on a continuing basis.
3. Distributor shall be responsible for its compliance, in connection with its
duties as distributor of the Contracts under this Agreement, with the
requirements of: (a) the Securities Exchange Act of 1934 (the "1934 Act");
(b) any state securities laws to the extent broker-dealer registration
requirements imposed thereby are applicable to it in performing such
duties; (c) the National Association of Securities Dealers, Inc. (the
"NASD") filing requirements with respect to any advertisements and sales
literature for the Contracts, regardless of which person prepared such
material (provided that any such material that was not prepared by
Distributor has been provided to Distributor for filing); and (d) all
applicable state insurance laws and regulations. In the event that
Distributor should determine that compliance with applicable state
insurance laws so requires and so notifies FSLIC, FSLIC shall appoint and
maintain the appointment of Distributor as necessary or appropriate for
Distributor to engage in the offer and sale of the Contracts during the
term of this Agreement, and in that regard shall appoint any individuals
associated with Distributor and designated by Distributor as agents acting
on its behalf, provided, however, that FSLIC reserves the right to refuse
to appoint any such person, consistent with its duties and responsibilities
under applicable insurance law. FSLIC shall be responsible for the payment
of all fees and the making of all filings required to effect such
appointments during the term of this Agreement. Moreover, the Distributor
shall conduct its affairs in accordance with the Conduct Rules (the
"Conduct Rules") of the NASD.
4. The Distributor and FSLIC may jointly enter into dealer agreements with
broker-dealers registered under the 1934 Act to sell variable annuity
contracts issued by FSLIC and funded through the Separate Account. Any such
contractual arrangement is expressly made subject to this Agreement. FSLIC
shall take all actions necessary to effect the appointment of such
registered sales representatives of such broker-dealers as may from time to
time be identified to FSLIC by Distributor as insurance agents of FSLIC.
5. Warranties.
(a) FSLIC represents and warrants to Distributor that:
(i) Registration Statement on Form N-4 (and, if applicable, Form
S-3) (the "Registration Statement") for each of the Contracts
identified on Attachment A has been filed with the Commission in
the form previously delivered to the Distributor. FSLIC agrees
that it shall forward to the Distributor copies of any and all
amendments to the Registration Statement, together with any
voting instruction solicitation material and other documents
relating to the Separate Account or the Contracts, at the time
that they are filed with the Commission;
(ii) The Registration Statement and any further amendments or
supplements thereto will, when they become effective, and the
prospectus constituting part of the Registration Statement (the
"Prospectus") will, at all times,
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conform in all material respects to the requirements of the
Securities Act of 1933 and the Investment Company Act of 1940,
and the rules and regulations of the Commission under such Acts,
and will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall
not apply to any statement or omission made in reliance upon and
in conformity with information furnished in writing to FSLIC by
the Distributor expressly for use therein;
(iii) FSLIC is validly existing as a stock life insurance company
in good standing under the laws of the state of Arizona, with
power (corporate or otherwise) to own its properties and conduct
its business as described in the Prospectus, and has been duly
qualified for the transaction of business and is in good standing
under the laws of other jurisdictions in which it owns any
property, or conducts any business, so as to require such
qualification;
(iv) The Contracts to be issued through the Separate Account and
offered for sale by the Distributor on behalf of FSLIC hereunder
have been duly and validly authorized and, when issued and
delivered against payment therefor as provided herein, will be
duly and validly issued and will conform to the description of
such Contracts contained in the Prospectuses relating thereto and
will comply in all material respects with applicable federal and
state law;
(v) The performance of this Agreement and the consummation of the
transactions contemplated by this Agreement will not result in a
breach or violation of any of the terms and provisions of, or
constitute a default under any statute, any indenture, mortgage,
deed of trust, note agreement or other agreement or instrument to
which FSLIC is a party or by which FSLIC or any of its properties
is bound, FSLIC's charter as a stock life insurance company or
by-laws, or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over FSLIC or any
of its properties; and no consent, approval, authorization or
order of any court or governmental agency or body is required for
the consummation by FSLIC of the transactions contemplated by
this Agreement, except such as may be required under the 1934 Act
in connection with the distribution of the Contracts by the
Distributor; and
(vi) There are no material legal or governmental proceedings
pending to which FSLIC or the Separate Account is a party or of
which any property of FSLIC or the Separate Account is the
subject, other than as set forth in the Prospectus relating to
the Contracts, and other than litigation incident to the kind of
business conducted by FSLIC, if determined adversely to FSLIC,
would individually or in the aggregate have a material adverse
effect on the financial position, surplus or operations of FSLIC.
(b) The Distributor represents and warrants to FSLIC that;
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(i) Distributor is validly existing as a corporation in good
standing under the laws of the State of Washington, with power
(corporate or otherwise) to own its properties and conduct its
business as a broker-dealer in securities and has been duly
qualified for the transaction of such business and is in good
standing under the laws of each other jurisdiction in which it
owns any property, or conducts any business, so as to require
such qualification.
(ii) It is a broker-dealer duly registered with the Commission
pursuant to the 1934 Act and a member in good standing of the
NASD and is in compliance with the securities laws in those
states in which it conducts business as a broker-dealer;
(iii) The performance of this Agreement and the consummation of
the transactions herein contemplated will not result in a breach
or violation of any of the terms or provisions of or constitute a
default under any statute, any indenture, mortgage, deed of
trust, note agreement or other agreement or instrument to which
the Distributor is a party or by which the Distributor or any of
its properties is bound, the certificate of incorporation or
by-laws of the Distributor, or any order, rule or regulation of
any court or governmental agency or body having jurisdiction over
the Distributor or its property; and
(iv) To the extent that any statements or omissions made in the
Registration Statement, or any amendment or supplement thereto
are made in reliance upon and in conformity with written
information furnished to FSLIC by the Distributor expressly for
use therein, such Registration Statement and any amendments or
supplements thereto will, when they become effective or are filed
with the Commission, as the case may be, conform in all material
respects to the requirements of the Securities Act of 1933 and
the rules and regulations of the Commission thereunder and will
not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or
necessary to make the statements therein not misleading.
(v) The performance of this Agreement and the consummation of the
transactions contemplated by this Agreement will not result in a
breach or violation of any of the terms and provisions of, or
constitute a default under any statute, any indenture, mortgage,
deed of trust, note agreement or other agreement or instrument to
which Distributor is a party or by which Distributor or any of
its properties is bound, Distributor's charter or by-laws, or any
order, rule or regulation of any court or governmental agency or
body having jurisdiction over Distributor or any of its
properties; and no consent, approval, authorization or order of
any court or governmental agency or body is required for the
consummation by Distributor of the transactions contemplated by
this Agreement; and
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(vi) There are no material legal or governmental proceedings
pending to which Distributor is a party or of which any property
of Distributor is the subject, other than as set forth in the
Prospectus relating to the Contracts, and other than litigation
incident to the kind of business conducted by Distributor, if
determined adversely to Distributor, would individually or in the
aggregate have a material adverse effect on the financial
position, surplus or operations of Distributor.
6. With respect to the issuance and servicing of the Contracts, and execution
of transactions thereunder carried out by FSLIC (or a person acting
pursuant to its authorization), FSLIC shall keep records and books relating
thereto in a manner and form prescribed by and in accordance with Rules
17a-3 and 17a-4 under the 1934 Act as are required to be maintained by
Distributor as a registered broker-dealer acting as distributor for the
Contracts. FSLIC acknowledges that it shall maintain such records and books
on behalf of Distributor and shall make such records and books of account
available for inspection by Distributor and the Commission.
7. FSLIC, at its sole cost, shall use best efforts to provide superior service
for the owners of the Contracts, including providing SunLine and other
policyholder support, administering the Contracts and printing and mailing
to existing investors in the Contract semi-annual and annual reports of the
investment companies affiliated with FSLIC that serve as underlying funding
vehicles for the Contracts, customer statements and other communications
and the Prospectus. FSLIC's administrative responsibilities shall include
those set forth on Attachment B hereto. FSLIC shall also be responsible for
printing and distributing all prospectuses (including the prospectuses for
investment companies serving as underlying funding vehicles for the
Contracts) to prospective investors in the Contracts. FSLIC and the
Distributor will establish mutually agreeable customer service standards,
including, without limitation, a quarterly review process.
8. Authorized Marketing Materials.
(a) Subsequent to having been notified by FSLIC to commence offers and
sales of the Contracts, the Distributor, in connection with its
distribution activities hereunder, will utilize no Prospectus
purporting to meet the requirements of Section 10(a) of the 1933 Act
other than the one so designated by FSLIC. As to other types of sales
material used in connection with its distribution activities, the
Distributor agrees that it will use, and pursuant to Selling
Agreements will require selling broker-dealers to use, only such sales
materials as have been authorized in writing for use by FSLIC, and
which (except for Registration Statements, Prospectuses, Statements of
Additional Information that the Distributor has determined are not
required to be filed with the NASD) have been filed by Distributor
with the NASD, and approved where necessary or required. The
Distributor shall promptly furnish to FSLIC copies of any letters from
the NASD requesting changes in any sales materials used or to be used
in connection with its distribution activities hereunder, and shall
not, after receipt of such a letter, use such sales materials until
FSLIC shall have approved (or re-approved, as applicable) their use in
writing. For purposes of this Agreement, the phrase "sales material"
includes, but is not limited to, advertisements (such as material
published, or designed for use
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in, a newspaper, magazine, or other periodical, radio, television,
telephone or tape recording, videotape display, signs or billboards,
motion pictures, or other public media), sales literature (i.e., any
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written communication distributed or made generally available to
customers or the public, including brochures, circulars, research
reports, market letters, form letters, seminar texts, reprints or
excerpts of any other advertisement, sales literature, or published
article), Registration Statements, Prospectuses, Statements of
Additional Information, shareholder reports, and proxy materials.
(b) The Distributor will not distribute any Prospectus, sales
material, or any other printed matter or material in the marketing and
distribution of any Contract if, to the knowledge of the Distributor,
any of the foregoing contains any untrue statement of a material fact
or omits to state a material fact necessary in order to make the
statements made therein, in the light of the circumstances with which
they were made, not misleading.
(c) FSLIC, at its sole cost, shall be responsible for developing (with
the assistance of Distributor), printing and distributing all sales
materials to be used in connection with the offer and sale of the
Contracts. FSLIC shall not give any information or make any statements
about Distributor or its affiliates in connection with the sale of
Contracts except with the express written permission of the
Distributor. FSLIC agrees that it shall file such sales materials with
any insurance regulatory authorities.
9. Expenses of providing sales presentations, mailings, advertising and any
other marketing efforts conducted in connection with the distribution or
sale of the Contracts shall be borne by FSLIC; provided however that the
cost of maintaining crediting rates on dollar cost averaging accounts for
the Contracts shall be allocated as may be separately agreed between FSLIC
and WM Advisors, Inc.
10. FSLIC shall, upon or prior to completion of each Contract transaction for
which a written confirmation is legally required, send a written
confirmation to the Contract owner for each such transaction, in a form and
manner that complies with all applicable law, including the 1934 Act and
the Conduct Rules of the NASD.
11. The Distributor, as distributor of the Contracts, shall not be entitled to
remuneration hereunder for its services, except that (i) with respect to WM
Diversified Strategies (3 year surrender charge) Contracts issued to
persons age 80 or younger (at the date of issue) FSLIC will pay the
Distributor a commission at the rate of 1.00% of purchase payments, and
(ii) FSLIC will pay a fee to the Distributor for launching the Contracts
and for ongoing facilitation of distribution of the Contracts.
12. The Distributor makes no representations or warranties regarding the number
of Contracts to be sold or the amount to be paid thereunder.
13. It is understood and agreed that the Distributor may render similar
services or act as a distributor or dealer in the distribution of other
variable contracts.
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14. FSLIC will ensure that the Contracts are continuously registered under the
Securities Act of 1933 and, should it ever be required, under state Blue
Sky Laws and will file for approval under state insurance laws when
necessary.
15. FSLIC reserves the right at any time to suspend or limit the public
offering of the subject Contracts.
16. FSLIC agrees to advise the Distributor immediately of:
(a) any request by the Commission (i) for amendment of the Registration
Statement, or (ii) for additional information which FSLIC determines
is material to Distributor;
(b) the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any
proceedings for that purpose; and
(c) the happening of any material event, if known, which makes untrue
any statement made in the Registration Statement or which requires the
making of a change therein in order to make any statement made therein
not misleading.
17. FSLIC will furnish to the Distributor such information with respect to the
Separate Account and the Contracts in such form and signed by such of its
officers as the Distributor may reasonably request; and will warrant that
the statements therein contained when so signed will be true and correct.
18. FSLIC and Distributor shall each consult with the other in connection with
any insurance regulatory investigation or proceeding or judicial proceeding
arising in connection with the Contracts marketed under this Agreement. In
addition, FSLIC and Distributor shall each consult with the other in
connection with any securities regulatory investigation or proceeding or
judicial proceeding, to the extent that such investigation or proceeding is
in connection with the Contracts marketed under this Agreement. In the case
of a written customer complaint, FSLIC and Distributor will each consult
with the other in connection with investigating such complaint and any
response by a party to this Agreement to such complaint will be sent to the
other parties to this Agreement for approval not less than two business
days prior to its being sent to the customer or regulatory authority,
except that if a more prompt response is required, the proposed response
shall be communicated by telephone or facsimile. Without limiting the
foregoing, each party shall notify the other parties of any written
customer complaint or notice of any regulatory investigation or proceeding
or judicial proceeding received by such party with respect to any other
party, or in connection with any Contract marketed under this Agreement or
any activity in connection with any such Contract, within five business
days of receipt of such complaint or notice.
19. Neither party may assign its obligations under this Agreement without the
prior written consent of the other. This Agreement shall terminate, without
the payment of any penalty by either party:
(a) at the option of FSLIC, upon 60 days' advance written notice to the
Distributor; or
(b) at the option of the Distributor upon 60 days' written notice to FSLIC;
or
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(c) at the option of either party upon institution of formal proceedings
against the other party by the NASD, the Commission or any state
insurance regulator; or
(d) at the option of either party, if the other party or any
representative thereof at any time (i) employs any device, scheme, or
artifice to defraud; makes any untrue statement of a material fact or
omits to state a material fact necessary in order to make the
statements made, in light of the circumstances under which they were
made, not misleading; or engages in any act, practice, or course of
business which operates or would operate as a fraud or deceit upon any
person; or (ii) violates the conditions of this Agreement.
Notwithstanding the foregoing, the Distributor shall continue to serve as
distributor with respect to additional investments made under any Contracts
that are outstanding as of the date of any termination (the "Initial
Termination Date"), although it shall be under no obligation to serve as
distributor with respect to any other Contracts or investments thereunder.
After the Initial Termination Date, the Distributor shall not be obligated
to "actively engage" in distribution efforts or provide marketing
assistance except as may otherwise be agreed by the parties. This
continuation shall extend to the earlier of the first date on which no
Contracts are outstanding or a date mutually agreed to by the Parties (the
"Final Termination Date"). The parties agree to cooperate and give
reasonable assistance to each other in establishing a Final Termination
Date following the Initial Termination Date.
20. Each notice required by this Agreement may be given by telephone or telefax
and confirmed in writing. Notices shall be delivered as follows:
if to FSLIC or the Separate Account:
c/o AIG SunAmerica Inc.
0 XxxXxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000-0000
Attention: Xxxx Xxxxxx Xxxxx, Executive Vice President
Facsimile: 310/772-6622
with a copy to:
AIG SunAmerica Inc.
0 XxxXxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000-0000
Attention: Xxxxxxxxx X. Xxxxx, Vice President
Facsimile: 310/772-6574
if to Distributor:
WM Funds Distributor, Inc.
00000 Xxxxxxxxxx Xxxxx, Xxxxx 000
(Mailstop: 9002FDCA)
Xxxx Xxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxx
Facsimile: (000) 000-0000
with a copy to:
0
Xxxxxx Xxxxxxxx
Xxxxxxxxxx Mutual Legal Department
17877 Xxx Xxxxxx Ave.
0xx Xxxxx, XXX0XXX
Xxxxxx, XX 00000-0000
Facsimile (000) 000-0000
and, with respect to any consultation or notice required under Section
18 of this Agreement, to
Xxxx Xxxxxxxx
Washington Mutual Financial Services
00000 Xxx Xxxxxx Xxx.
Xxxxxx, XX 00000
Facsimile (000) 000-0000
21. (a) FSLIC shall indemnify and hold harmless the Distributor and each
person, if any, who controls the Distributor within the meaning of the
Act against any losses, claims, damages or liabilities to which the
Distributor or such controlling person may become subject, under the
Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based
upon (1) any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, Prospectus or
SAI or any other written sales material prepared by FSLIC which is
utilized by the Distributor in connection with the sale of Contracts
or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein (in the
case of the Registration Statement, Prospectus and SAI), or in the
case of such other sales material, necessary to make the statements
therein not misleading in light of the circumstances under which they
were made, or (2) FSLIC's negligence, misconduct, failure to comply
with applicable law or other material breach of this Agreement
(including any material breach of FSLIC's representations and
warranties hereunder) and will reimburse the Distributor and each such
controlling person for any legal or other expenses reasonably incurred
by the Distributor or such controlling person in connection with
investigating or defending any such loss, claim, damage, liability or
action, provided, however, that FSLIC will not be liable in any such
case to the extent that any such untrue statement or alleged untrue
statement or omission or alleged omission was made in such
Registration Statement, Prospectus or SAI or any other sales material
in conformity with information furnished by Distributor to FSLIC
specifically for use therein; and provided, further, that nothing
herein shall be so construed as to protect the Distributor against any
liability to FSLIC or the Contract Owners to which the Distributor
would otherwise be subject by reason of willful misfeasance, bad
faith, or gross negligence in the performance of its duties, or by
reason of the reckless disregard by the Distributor of its obligations
and duties under this Agreement.
(b) The Distributor will likewise indemnify and hold harmless FSLIC, each
of its directors and officers and each person, if any, who controls
FSLIC within the meaning of the Act to the extent, but only to the
extent, that such untrue statement
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or alleged untrue statement or omission or alleged omission was made
in conformity with written information furnished to FSLIC by the
Distributor specifically for use therein or for Distributor's
negligence, misconduct, failure to comply with applicable law or other
material breach of this Agreement (including any material breach of
Distributor's representations and warranties hereunder) and will
reimburse FSLIC and each such controlling person for any legal or
other expenses reasonably incurred by FSLIC or such controlling person
in connection with investigating or defending any such loss, claim,
damage, liability or action.
In no event shall any party under this Agreement be liable for lost profits
or for exemplary, special, punitive or consequential damages alleged to
have been sustained by the other party.
This Section shall survive termination of this Agreement
22. During the term of this Agreement and for five (5) years following the
termination of this Agreement, neither FSLIC, its affiliates, directors,
officers, employees or agents nor Distributor, its affiliates, directors,
officers, employees or agents shall induce or cause, or attempt to induce
or cause, directly or indirectly, any Contract owner (a) to lapse,
terminate, surrender, exchange, or cancel his or her Contract, (b) to cease
or discontinue making premium payments thereunder, or (c) to direct cash
value or premium payments thereunder to any other financial product, unless
such act is in response to an enactment of federal or state legislation,
order or decision of any court or regulatory authority, or a change in
circumstances that makes the Contracts or insurance contacts of that type
(e.g., annuity contracts or life insurance contracts) an unsuitable
investment for existing Contract owners.
23. This Agreement shall be subject to the laws of the State of Washington and
construed so as to interpret the Contracts as insurance contracts written
within the business operation of FSLIC.
24. To the extent not otherwise provided herein, each party hereto (the
"Requesting Party") shall have the right, upon reasonable notice to any
other party hereto (the "Other Party"), during regular business hours, to
audit all the records and practices of the Other Party relating to the
business contemplated hereunder in order to determine whether such Other
Party is complying with the terms of this Agreement, including the payment
of commissions and fees. The Requesting Party shall have the right to copy
any of such records at its expense. At its option, such audit may be
conducted by the Requesting Party's own personnel or by a qualified
independent auditor selected by it. The Requesting Party shall make
reasonable efforts to conduct each such audit in a manner that avoids any
material disruption of the Other Party's business.
25. "Confidential Information" of a party shall mean all confidential or
proprietary information, including trade secrets of such party and
documentation, the terms of this Agreement and any customer information.
All Confidential Information relating to a party shall be held in
confidence by the other party to the same extent and in at least the same
manner as such party protects its own confidential or proprietary
information. Neither party shall disclose, publish, release, transfer or
otherwise make available Confidential Information of the other party in any
form to, or for the use or benefit of, any person or entity without the
other party's consent. Each party shall, however, be permitted to disclose
relevant aspects of the other party's Confidential Information to its
officers,
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agents, subcontractors and employees to the extent that such disclosure is
reasonably necessary for the performance of its duties and obligations
under this Agreement and such disclosure is not prohibited by
Xxxxx-Xxxxx-Xxxxxx Act of 1999 (Public Law 106-102, 113 Stat. 1138), as it
may be amended from time to time (the "GLB Act"), the regulations
promulgated thereunder or other applicable law; provided, however, that
such party shall take all reasonable measures to ensure that Confidential
Information of the other party is not disclosed or duplicated in
contravention of the provisions of this Agreement by such officers, agents,
subcontractors and employees. The obligations in this section shall not
restrict any disclosure by either party pursuant to any applicable law, or
by order of any court or government agency (provided that the disclosing
party shall give prompt notice to the non-disclosing party of such order)
and shall not apply with respect to information which (1) is developed by
the other party without violating the disclosing party's proprietary
rights, (2) is or becomes publicly known (other than through unauthorized
disclosure), (3) is disclosed by the owner of such information to a third
party free of any obligation of confidentiality, (4) is already known by
such party without an obligation of confidentiality other than pursuant to
this Agreement or any confidentiality agreements entered into before the
effective date between the parties hereto or (5) is rightfully received by
a party free of any obligation of confidentiality. If the GLB Act, the
regulations promulgated thereunder or other applicable law now or hereafter
in effect imposes a higher standard of confidentiality to the Confidential
Information, such standard shall prevail over the provisions of this
section.
26. This Agreement, along with any Attachment attached hereto and incorporated
herein by reference, may be amended from time to time by the mutual
agreement and consent of the undersigned parties; provided that such
amendment shall not affect the rights of existing Contract owners, and that
such amendment be in writing and duly executed.
27. Any controversy or claim among the parties to this Agreement and/or their
affiliates arising out of or relating to this Agreement or the Contracts,
shall be settled by arbitration in a forum, and pursuant to procedures,
selected by one mutually agreed-upon arbitrator or, in the event that the
parties are unable to agree on a single arbitrator, three arbitrators, one
of whom shall be selected by each of FSLIC and the Distributor, and the
third of whom shall be selected by the first two arbitrators, and judgment
upon the award rendered by such arbitrator(s) may be entered in any court
having jurisdiction thereof.
28. This Agreement may be executed simultaneously in two or more counterparts,
each of which taken together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the undersigned parties have caused this Agreement to
be duly executed on the date first stated above.
FIRST SUNAMERICA LIFE INSURANCE COMPANY
By:
----------------------------------------
Xxxx Xxxxxx Xxxxx, Senior Vice President
FS VARIABLE SEPARATE ACCOUNT
By: FIRST SUNAMERICA LIFE
INSURANCE COMPANY
By:
----------------------------------------
Xxxx Xxxxxx Xxxxx, Senior Vice President
WM FUNDS DISTRIBUTOR, INC.
By:
----------------------------------------
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Attachment A
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CONTRACT SPECIFICATION SHEET
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The following variable annuity contracts are the subject of the Distribution
Agreement between FSLIC National Life Insurance Company and WM Funds
Distributor, Inc. dated December ___, 2002, regarding the sale of the following
contracts funded in FS Variable Separate Account:
WM Diversified Strategies III Variable Annuity (3 year surrender penalty)
Attachment B
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ADMINISTRATIVE RESPONSIBILITIES
-------------------------------
1. Contract Maintenance
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(a) File and obtain state approvals for the Contracts being issued, and any
amendments thereof.
(b) Notify Distributor of the effective date for each state in which the
Contracts become available for issue.
(c) Customize and support state specific requirements where
administratively feasible.
2. Contract Servicing
------------------
(a) Issue and maintain master records for Contracts applied for and
accepted.
(b) Provide maintenance support for all Contract features:
(i) Purchase Payments (new issues, 1035 Exchanges, EFT, additions);
(ii) Withdrawals (systematic, partial, full, cancellations, and death
claims);
(iii) Exchanges among Divisions, change of allocations;
(iv) Title Changes (beneficiary, ownership, name, assignments);
(v) Dollar-Cost Averaging;
(vi) Automatic Rebalancing;
(vii) Annuitization.
3. Customer Correspondence
-----------------------
(a) Generate and provide various customer correspondence documents:
(i) Contract (with appropriate riders and endorsements);
(ii) Confirmations of financial transactions;
(iii) Quarterly statements of account activity and balances;
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4. Customer Service Functions
--------------------------
(a) Provide a telephone staff or other medium to respond to customer
inquiries.
(b) Prepare and update service forms necessary to support the Contract.
(c) Respond to written inquiries from Contract owners.
(d) Coordinate complaint resolution (formal and informal).
5. Compliance
----------
(a) Coordinate the printing and mailing of the following documents:
(i) Separate Account semiannual and annual reports, if any;
(ii) Prospectus.
(b) Coordinate proxy solicitations as outlined in the Participation
Agreement.
(c) Prepare updates and regulatory filings as warranted.
(d) Generate tax reporting for Contract owners as warranted by account
activity.
(e) Maintain appropriate books and records.
6. Financial
---------
(a) Calculate unit values on business days of the separate account.
(b) Place trades with investment companies serving as underlying funding
vehicles for the Contracts and settle such trades as defined in the
Participation Agreement.
(c) Prepare Separate Account semiannual and annual reports, if any.
7. Licensing/Contracting and Compensation
--------------------------------------
(a) Establish the initial record and perform ongoing maintenance for
representatives appointed to sell the product.
(b) Arrange for payment of appointment fees.
8. Reporting
---------
(a) Provide sales or other reports as mutually agreed upon by FSLIC and
Distributor.
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