1
EXHIBIT (3)(A)
DISTRIBUTION AGREEMENT
THIS AGREEMENT, entered into as of this 15th day of September, 1995, is
among FIRST SUNAMERICA LIFE INSURANCE COMPANY ("First SunAmerica"), a life
insurance company organized under the laws of the State of New York, on behalf
of itself and FS VARIABLE ANNUITY ACCOUNT TWO ("Separate Account"), a separate
account established by First SunAmerica pursuant to the insurance laws of the
State of New York, and VISTA BROKER-DEALER SERVICES ("Distributor"), a
corporation organized under the laws of the State of Maryland.
WITNESSETH:
WHEREAS, First SunAmerica intends to issue certain flexible payment
deferred annuity contracts under the name "Vista Capital Advantage" (the
"Contracts") which will permit allocation of premium payments and contract value
to the Separate Account and/or First SunAmerica's general account ("Fixed
Account Options"); and
WHEREAS, First SunAmerica, by resolution adopted on May 24, 1994,
established the Separate Account on its books of account, for the purpose of
supporting variable benefits under the Contracts; and
WHEREAS, the Separate Account will invest in an investment company
("Trust") which will be managed by The Chase Manhattan Bank, N.A. ("Chase");
WHEREAS, the Separate Account has been registered with the Securities
and Exchange Commission ("Commission") as a unit investment trust under the
Investment Company Act of 1940 ("1940 Act") (File No. 811-8624); and
WHEREAS, two registration statements for the Contracts, one on Form N-4
relating to the Separate Account and one on Form S-1 relating to the Fixed
Account Options (collectively, the "Registration Statements"), have been filed
with the Commission under the Securities Act of 1933 (the "1933 Act") (File Nos.
33-81470 and 33-81474, respectively); and
WHEREAS, the two Registration Statements include the same prospectus,
and the same definitive form of the prospectus will be used from time to time to
offer both the Separate Account and the Fixed Account Options under the
Contracts (herein, the "Prospectus"); and
WHEREAS, the Distributor, a broker-dealer registered under the
Securities Exchange Act of 1934 (the "1934 Act") and a member of the National
Association of Securities Dealers, Inc. ("NASD"), proposes to act as distributor
on an agency basis in the marketing and distribution of the Contracts;
NOW THEREFORE, in consideration of the foregoing, and of the mutual
covenants and conditions set forth herein, and for other good and valuable
consideration, the receipt of which is hereby acknowledged, First SunAmerica,
the Separate Account and Distributor hereby agree as follows:
1. Authorization of Distributor
(a) The Distributor will serve as distributor on an agency
basis for the Contracts. This authorization is exclusive until
this Agreement is terminated or the authorization is otherwise
terminated pursuant to an amendment hereto. The Distributor
represents that it will actively engage in its duties under
this Agreement on a continuous basis while the Registration
Statements (or any other registration statements filed and
declared effective in lieu thereof) for the Contracts are
effective, consistent with its business and relationship with
Chase pursuant to the Omnibus Agreement described in Section
14 hereof, and subject to applicable material market and
2
regulatory conditions and any other restrictions that may
become applicable to its activities. First SunAmerica
reserves the right at any time to suspend or limit the public
offering of the Contracts, upon written notice to Distributor.
(b) It is understood that Distributor has no present intention
of engaging in sales of the Contracts on a retail basis
(although it reserves the right to do so), and intends to
restrict its distribution activities to wholesaling
activities, and in that regard will recruit and recommend for
appointment by First SunAmerica duly registered broker-dealers
and licensed insurance agents (together, "Selling
Broker-Dealers") to sell the Contracts on a retail basis
directly to purchasers, subject to the provisions of this
Agreement and a selling agreement to be entered into between
First SunAmerica, Distributor and such Selling Broker-Dealer.
Distributor will provide information and marketing assistance
to Selling Broker-Dealers. Distributor shall use its
reasonable best efforts to enter into selling agreements for
the Contracts with those persons currently selling the Vista
family of mutual funds.
(c) For so long as the Contracts are still being publicly
offered, First SunAmerica will use its reasonable best efforts
to assure that the Contracts are continuously registered under
the 1933 Act and, should it ever be required, under state
securities laws, and will use reasonable efforts to ensure
that the Contracts are approved under state insurance laws
when and where necessary so that the Contracts may be offered
continuously in the state of New York. First SunAmerica shall
provide internal marketing support for Distributor's
wholesaling efforts appropriate for the Contracts, including
providing wholesaler training, advanced markets and retirement
plan support, sales ideas, competitive information and other
market research, and illustrative software.
2. Authorization of Selling Broker-Dealers. First SunAmerica and the
Distributor shall enter into selling agreements ("Selling Agreements")
with Selling Broker-Dealers, which shall be broker-dealers registered
under the 1934 Act and authorized by applicable state insurance law to
sell variable annuity contracts. Selling Agreements shall contain the
written representations of Selling Broker-Dealers that all individuals
who offer and sell the Contracts pursuant to the Selling Agreements on
behalf of such Selling Broker-Dealers are duly registered
representatives of such Broker-Dealers and are fully licensed as
insurance agents under applicable state insurance laws. First
SunAmerica alone shall be responsible for appointing Selling
Broker-Dealers and all persons selling the Contracts on their behalf in
accordance with applicable state insurance law, it being understood
that First SunAmerica may refuse to appoint a person or to pay
appointment fees with respect to the appointment of a person, to the
extent consistent with First SunAmerica's internal policies applicable
to all persons selling its products. Distributor shall have no
responsibility in this regard. First SunAmerica alone shall be
responsible for communicating to all Selling Broker-Dealers and their
personnel, all policies and procedures applicable to them as such
appointed agents of First SunAmerica.
3. Distributor's Compliance with Applicable Law. 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 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) NASD filing
requirements with respect to any advertisements and sales literature
for the Contracts, regardless of which person prepared such material;
and (d) all applicable state insurance laws and
3
regulations relating to licensed insurance agents, it being understood
that a person associated with Distributor, rather than Distributor
itself, may hold a corporate insurance agent's license in certain
states in which the performance of such duties requires an insurance
agent's license. Without limiting the foregoing, Distributor shall be
responsible for ensuring that all individuals associated with
Distributor who are offering and selling the Contracts on its behalf
are licensed as insurance agents under applicable state insurance laws.
First SunAmerica 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 First SunAmerica reserves the right to
refuse to appoint any such person, consistent with its duties and
responsibilities under applicable insurance law. First SunAmerica 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. Distributor shall conduct its affairs in accordance with the
Rules of Fair Practice of the NASD.
4. Representations and Warranties
(a) First SunAmerica represents and warrants to Distributor on
the effective date of this Agreement that:
(1) First SunAmerica is validly existing as a
corporation in good standing under the laws of the
state of New York with power (corporate or otherwise)
to own its properties and conduct its business in the
manner described in the Registration Statements, is
duly qualified to transact the business of a life
insurance company and to issue variable annuity
products, and is in good standing, in the state of
New York.
(2) The execution and delivery of this Agreement and
the consummation of the transactions contemplated by
this Agreement have been duly authorized by all
necessary corporate action by First SunAmerica, and
when so executed and delivered this Agreement shall
be the valid and binding obligation of First
SunAmerica enforceable in accordance with its terms.
(3) Consummation of the transactions contemplated by
this Agreement, and the fulfillment of the terms of
this Agreement, will not conflict with, result in any
breach of any of the terms and provisions of, or
constitute (with or without notice or lapse of time)
a default under, the articles of incorporation or
bylaws of First SunAmerica, or any indenture,
agreement, mortgage, deed of trust, or other
instrument to which First SunAmerica is a party or by
which it is bound, or violate any law, or, to the
best of First SunAmerica's knowledge, any order, rule
or regulation applicable to First SunAmerica of any
court or of any federal or State regulatory body,
administrative agency or any other governmental
instrumentality having jurisdiction over First
SunAmerica or any of its properties.
(b) First SunAmerica further represents and warrants to
Distributor, on the effective date of each Registration
Statement for the Contracts, that:
(1) First SunAmerica has filed with the Commission
all statements, notices, and other documents required
for registration of the Contracts, the Separate
Account and the Fixed
4
Account Option under the provisions of the 1933 Act
and the 1940 Act and regulations thereunder; and, in
particular, but not by way of limitation, has filed
as exhibits thereto, all contracts or documents of
First SunAmerica relating to the Contracts or the
Separate Account or Fixed Account Option which are
required to be filed as exhibits thereto by the 1933
Act or the 1940 Act or regulations thereunder.
Notwithstanding the foregoing, the parties recognize
that this Agreement, in the form in which it is
executed, has not been filed with the Registration
Statement (an earlier form having been so filed) and
it is the intention of First SunAmerica to file a
form of this Agreement with the first post-effective
amendment to the Registration Statement.
(2) First SunAmerica has obtained all necessary
orders of exemption or approval from the Commission
to permit the distribution of the Contracts pursuant
to this Agreement and to permit the establishment and
operation of the Separate Account as contemplated in
the Registration Statements, and such orders apply to
Distributor, as principal underwriter for the
Contracts and for the Separate Account.
(3) Each Registration Statement has been declared
effective by the Commission or has become effective
in accordance with applicable regulations. First
SunAmerica has not received any notice from the
Commission with respect to either Registration
Statement pursuant to Section 8(e) of the 1940 Act,
and no stop order under the 1933 Act has been issued,
and no proceeding therefor has been instituted or
threatened by the Commission.
(4) Each Registration Statement complies in all
material respects with applicable provisions of the
1933 Act and the 1940 Act and regulations thereunder,
and no Registration Statement contains an untrue
statement of a material fact or omits to state a
material fact required to be stated therein or
necessary to make the statements therein not
misleading, in light of the circumstances in which
they were made; provided, however, that none of the
representations and warranties in this Section 5
shall apply to statements or omissions from a
Registration Statement made in reliance upon and in
conformity with information furnished to First
SunAmerica by Distributor expressly for use therein.
(5) The Contracts have been duly and validly
authorized and, when issued and delivered against
payment therefor, will be duly and validly issued and
will conform in all material respects to the
description of such Contracts in the Registration
Statement.
(6) The Separate Account has been duly established by
First SunAmerica and conforms to the description
thereof in the Registration Statement.
(7) The form of the Contracts have been or prior to
commencement of sale will be duly approved to the
extent required by the New York insurance commission
or otherwise have been cleared for the sale of the
Contracts in such state.
5
(8) The Contracts and the Separate Account have been
duly registered with each state securities
commission, agency or other governmental body charged
with the regulation of securities (herein,
"securities commission") to the extent required by
such state, except where failure to effect such
registration would not have a material adverse effect
on the marketing of the Contracts.
(9) No other consent, approval, authorization or
order of any court or governmental authority or
agency is required for the issuance or sale of the
Contracts, the establishment or operation of the
Separate Account, or for the consummation of the
transactions contemplated by this Agreement, that has
not been obtained, except where the failure to obtain
such consent, approval or authorization would not
have a material adverse effect on the marketing of
the Contracts.
(c) Distributor represents and warrants to First
SunAmerica that:
(1) Distributor is validly existing as a corporation
in good standing under the laws of the State of
Maryland, with power (corporate or other) 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 or leases properties,
or conducts any business, so as to require such
qualification;
(2) Distributor is registered as a broker-dealer with
all federal and state authorities with which such
registration is required to carry out its obligations
as contemplated by this Agreement, and either
Distributor or an associated person thereof is
licensed as an insurance agent with all state
authorities with whom such licensing is required for
Distributor to carry out its obligations as
contemplated by this Agreement;
(3) The execution and delivery of this Agreement and
the consummation of the transactions contemplated by
this Agreement have been duly authorized by all
necessary corporate action by Distributor, and when
so executed and delivered, this Agreement shall be
the valid and binding obligation of Distributor
enforceable in accordance with its terms.
(4) Consummation of the transactions contemplated by
this Agreement, and the fulfillment of the terms of
this Agreement, will not conflict with, result in any
breach of any of the terms or provisions of, or
constitute (with or without notice or lapse of time)
a default under, the articles of incorporation or
by-laws of Distributor, or any indenture, agreement,
mortgage, deed of trust, or other instrument to which
Distributor is a party or by which Distributor is
bound, or violate any law, or, to the best of
Distributor's knowledge, any order, rule or
regulation applicable to Distributor of any court or
of any federal or State regulatory body,
administrative agency or any other governmental
instrumentality having jurisdiction over Distributor
or any of its properties; and
6
(5) 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 which, 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) To the extent that any statements or omissions
made in any Registration Statement for the Contracts,
or any amendment or supplement thereto, are made in
reliance upon and in conformity with information
furnished to First SunAmerica by Distributor
expressly for use therein, such information shall
conform in all material respects to the requirements
of the Act and the rules and regulations of the
Commission thereunder and, with respect to the
presentation of such information, 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.
5. Undertakings of First SunAmerica
(a) For so long as the Contracts are being publicly offered,
First SunAmerica shall use its best efforts to maintain the
registration of the Contracts, the Fixed Account Option and
the Separate Account with the Commission and to maintain any
registrations and approvals of the Contracts, the Fixed
Account Option and the Separate Account with any securities or
insurance commission or agency of any state whose securities
or insurance laws require registration or approval of the
Contracts, the Fixed Account Option or the Separate Account
for purposes of the distribution contemplated by this
Agreement (except where failure to effect or maintain such
registration with a state would not have a material adverse
effect on the marketing of the Contracts), such efforts to
include, without limitation, best efforts to prevent a stop
order from being issued by the Commission or any such state
commission or, if a stop order has been issued, to cause such
stop order to be withdrawn.
(b) First SunAmerica shall take all action required to cause
the Separate Account to comply, and to continue to comply,
with the provisions of the 1940 Act and regulations and
exemptions thereunder applicable to the Separate Account as a
registered investment company classified as a unit investment
trust and a separate account under the 1940 Act, and shall not
take any action unilaterally, in its capacity as depositor for
the Separate Account, that would cause Distributor to be in
violation of the 1940 Act.
(c) First SunAmerica shall provide Distributor with a
preliminary draft of any amendment to a Registration
Statement, supplement to the Prospectus, exemptive application
or no-action request to be filed with the Commission in
connection with the Contracts, the Fixed Account Option and/or
the Separate Account. First SunAmerica shall provide
Distributor with a reasonable opportunity to review and
comment on any such draft before any such material is filed
with the Commission. First SunAmerica shall furnish
Distributor with copies of any such material or amendment
thereto, as filed with the Commission, promptly after the
filing thereof, and any Commission communication or order with
respect thereto, promptly after receipt thereof. First
SunAmerica shall maintain and keep on file in its principal
executive
7
office any file memoranda or any supplemental materials
referred to in any such Registration Statement, Prospectus,
exemptive application and no-action request and shall, as
necessary, amend such memoranda or materials and shall provide
or otherwise make available copies of such memoranda and
materials to the Distributor.
(d) First SunAmerica shall provide Distributor access to such
records, officers and employees of First SunAmerica at
reasonable times as Distributor may request is necessary to
enable Distributor to fulfill its obligation, as the
underwriter under the 1933 Act for the Contracts and as
principal underwriter for the Separate Account under the 1940
Act, to perform due diligence and to use reasonable care.
(e) First SunAmerica shall timely file each post-effective
amendment to a Registration Statement, Prospectus, Rule 24f-2
notice, annual report on Form N-SAR, and all other reports,
notices, statements, and amendments required to be filed by or
for First SunAmerica and/or the Separate Account with the
Commission under the 1933 Act, the 1934 Act and/or the 1940
Act or any applicable regulations, and shall pay all filing or
registration fees payable in connection therewith. To the
extent there occurs an event or development (including,
without limitation, a change of applicable law, regulation or
administrative interpretation), which in First SunAmerica's
reasonable judgment warrants an amendment to either the
Registration Statement or a supplement to the Prospectus,
First SunAmerica shall endeavor to prepare, subject to the
Distributor's right to review such material provided in
Section 5(c), and file such amendment or supplement with the
Commission with all deliberate speed.
6. Notification of Material Developments
(a) First SunAmerica and Distributor each agree to notify the
other in writing upon (i) being apprised of the institution of
any proceeding, investigation or hearing involving the offer
or sale of the Contracts, (ii) the happening of any material
event, if known by such notifying party, which makes untrue
any statement made in a Registration Statement or which
requires the making of a change therein in order to make any
statement made therein not materially misleading; or (iii)
upon becoming aware that any Prospectus, sales literature or
other printed matter or material used in marketing and
distributing any Contract contains an untrue statement of a
material fact or omits to state a material fact necessary in
order to make the statements made therein, in light of the
circumstances in which they were made, not misleading.
(b) In addition, First SunAmerica shall notify the Distributor
immediately or in any event as soon as possible under the
following circumstances:
(1) Of any request by the Commission for any
amendment to a Registration Statement, for any
supplement to the Prospectus, or for additional
information relating to the Contracts;
(2) Of the issuance by the Commission of any stop
order with respect to a Registration Statement or any
amendment thereto, or the initiation of any
proceedings for that purpose or for any other purpose
relating to the registration and/or offering of the
Contracts;
(3) Of any loss or suspension of the approval of the
Contracts or distribution thereof by an insurance
commission of any state, any loss or
8
suspension of First SunAmerica's certificate of
authority to do business or to issue variable annuity
products in any state.
7. Books and Records. With respect to the issuance and servicing
of the Contracts, and execution of transactions thereunder carried out
by First SunAmerica (or a person acting pursuant to its authorization),
First SunAmerica 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. First SunAmerica 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 the Commission.
Distributor shall have the right to inspect and make copies of such
records and books of account at any time on demand.
8. Authorized Marketing Materials
(a) Subsequent to having been notified by First SunAmerica 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 First SunAmerica. 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
sales materials as have been authorized in writing for use by
First SunAmerica, and which have been filed by Distributor
with the NASD, and approved where necessary or required. For
purposes of this Agreement, the phrase "sales material"
includes, but is not limited to, advertisements (such as
material published, or designed for use 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
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.
9. Compensation. The Distributor, as distributor of the
Contracts, shall not be entitled to any remuneration from First
SunAmerica or its affiliates.
10. Remittance of Premium Payments. All premium payments
collected on the sale of the Contracts by the Distributor, if any,
shall be transmitted to First SunAmerica for immediate allocation to
the Separate Account and/or Fixed Account Option in accordance with the
directions furnished by the purchasers of such Contracts.
11. Termination. This Agreement will terminate automatically
upon its assignment to any person. This Agreement shall
terminate, without the payment of any penalty by any party:
9
(a) at the option of First SunAmerica, upon 60 days'
advance written notice to the Distributor; or
(b) at the option of the Distributor upon 60 days'
advance written notice to First SunAmerica; or
(c) at the option of First SunAmerica upon written notice of
such termination to the Distributor, if formal proceedings
against the Distributor involving the offer or sale of the
Contracts by the NASD or by the Commission are instituted; or
(d) at the option of the Distributor upon written notice of
such termination to First SunAmerica, if formal proceedings
against First SunAmerica by a state insurance regulatory
agency initiating seizure or with respect to the Contracts are
instituted; or
(e) at the option of either party if the offering and sale of
the Contracts is terminated or if the Omnibus Agreement
defined in Section 14 hereof is terminated; or
(f) at the option of either party upon written notice of such
termination to the other parties, if any other party or any
representative thereof at any time (i) in connection with the
offer or sale of the Contracts (A) employs any device, scheme,
or artifice to defraud; (B) 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
(C) engages in any act, practice, or course of business which
operates or would operate as a fraud or deceit upon any
person; or (ii) breaches its representations or warranties
under this Agreement.
12. Notice. Each notice required by this Agreement shall be given
in writing and shall be deemed to have been given if delivered
personally, given by facsimile or mailed by registered or certified
mail (return receipt requested) or by Federal Express or other
overnight delivery as follows:
if to First SunAmerica or the Separate Account:
c/o SunAmerica Inc.
0 XxxXxxxxxx Xxxxxx
Xxxxxxx Xxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxx
Vice President
with a copy to:
SunAmerica Inc.
0 XxxXxxxxxx Xxxxxx
Xxxxxxx Xxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxx
Vice President, General
Counsel - Corporate
Affairs and Secretary
if to Distributor:
Vista Broker-Dealer Services, Inc.
000 X. 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: President
with a copy to:
Vista Broker-Dealer Services, Inc.
11th Floor
10
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxxxxxx
Vice President
13. Indemnification
(a) First SunAmerica shall indemnify and hold harmless
Distributor and its affiliates and each of their respective
directors and officers and each person, if any, who controls
Distributor and its affiliates against any and all losses,
claims, damages, liabilities or litigation (including legal
and other expenses), arising out of activities undertaken
pursuant to this Agreement, to which Distributor and its
affiliates or such directors, officers or controlling persons
may become subject, under any statute, at common law, or
otherwise, which (i) may be based upon any wrongful act or
breach of this Agreement by First SunAmerica, or any of its
employees or representatives (other than any insurance agents
appointed pursuant to this Agreement or a Selling Agreement),
any affiliate of or any person acting on behalf of First
SunAmerica; (ii) may be based upon a breach of the warranties
made by First SunAmerica set forth in this Agreement; or (iii)
may be based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration
Statements, Prospectus or Statement of Additional Information
for the Contracts or any other written sales material prepared
exclusively by First SunAmerica 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 or
necessary to make the statements therein not misleading (but
not if such untrue statement or alleged untrue statement or
omission or alleged omission was made in conformity with
information furnished to First SunAmerica by Distributor
specifically for use therein), provided, however, that in no
case is First SunAmerica's indemnity in favor of a director or
officer or any other person deemed to protect such director or
officer or other person against any liability to which any
such person would otherwise be subject by reason of willful
misfeasance, bad faith, or gross negligence in the performance
of his or her duties or by reason of his or her reckless
disregard of obligations and duties under this Agreement.
(b) Distributor shall indemnify and hold harmless First
SunAmerica and its affiliates and each of their respective
directors and officers and each person, if any, who controls
First SunAmerica against any and all losses, claims, damages,
liabilities or litigation (including legal and other expenses)
arising out of activities undertaken pursuant to this
Agreement, to which First SunAmerica or its affiliates, or
such directors, officers or controlling person may become
subject, under any statute, at common law, or otherwise, which
(i) may be based upon any wrongful act or breach of this
Agreement by Distributor or any of its employees or
representatives any affiliate or any person acting on behalf
of Distributor; (ii) may be based upon a breach of the
warranties made by Distributor set forth in this Agreement; or
(iii) may be based on an untrue statement or alleged untrue
statement of a material fact contained in the Registration
Statements, Prospectus or Statement of Additional Information
for the Contracts or any other written sales material utilized
in connection with the sale of the 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 or
necessary to make the statements therein not misleading (but
only to the extent such untrue statement or alleged untrue
statement or
11
omission or alleged omission was made in conformity with
information furnished to First SunAmerica by Distributor
specifically for use therein); provided, however, that in no
case is Distributor's indemnity in favor of a director or
officer or any other person deemed to protect such director or
officer or other person against any liability to which any
such person would otherwise be subject by reason of willful
misfeasance, bad faith, or gross negligence in the performance
of his or her duties or by reason of his or her reckless
disregard of obligations and duties under this Agreement.
(c) The indemnification provision of this Section 13 shall
survive any termination of this Agreement.
14. Omnibus Agreement. As between First SunAmerica and
Distributor, this Agreement, together with a certain letter agreement
dated as of even date herewith between First SunAmerica and
Distributor, constitutes the entire agreement, verbal and written, of
the parties insofar as this Agreement is in furtherance of discharging
their respective obligations under that certain agreement dated
February 28, 1995 by and among First SunAmerica, Chase, Distributor
and First SunAmerica Life Insurance Company ("Omnibus Agreement").
As between First SunAmerica and Distributor, accordingly, this
Agreement supersedes and annuls all other agreements between the
parties relating to the distribution of the Contracts except for the
Selling Agreements described in Section 2 hereinabove, the letter
agreement referred to herein and the Omnibus Agreement.
15. Amendments. This Agreement 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 must be in
writing and duly executed.
16. No Third Party Beneficiary. None of the provisions of
this Agreement shall inure to the benefit of any person other than
the parties hereto or their respective successors, or be deemed to
create any rights, benefits or privileges in favor of any person
except the parties hereto.
17. No Agency Created Hereby. Except to the extent their duties
under this Agreement otherwise require, none of the provisions of this
Agreement shall be deemed to designate or appoint any party hereto as
the agent of any other party or to authorize or empower any party
hereto to act for or to create or incur any obligations on behalf of
any other party.
18. Counterparts. This Agreement may be executed and
delivered in any one or more counterparts, and each such
counterpart so delivered and bearing the original signature of a
party hereto shall be binding as to such party, and all
counterparts shall together constitute one original and the same
instrument.
19. Interpretation. This Agreement shall be governed by,
construed and enforced in accordance with the laws of the State of
California and shall be interpreted in such a manner as to be
effective and valid under the laws of the State of California. If any
provision of this Agreement shall be deemed to be prohibited by law
or invalid, such provision shall be ineffective only to the extent of
the prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Agreement.
20. Waiver. The waiver by one party of the performance in
observance of any covenant or condition to be performed or observed by
any other hereunder shall not invalidate this Agreement, nor
constitute a waiver by such party of any other covenant or condition
to be performed or observed by any other hereunder. The exercise by
any party hereto of any right,
12
privilege or remedy provided by this Agreement shall not constitute a
waiver by such party of any other covenant or condition to be performed
or observed by any other party under this Agreement. The exercise by
any party hereto of any right, privilege or remedy provided by this
Agreement or otherwise by law shall not exclude the exercise of any
other right, privilege or remedy.
IN WITNESS WHEREOF, the undersigned parties have caused this Agreement
to be duly executed and their respective corporate seals to be hereunto affixed
and attested on the date first stated above.
FIRST SUNAMERICA LIFE
INSURANCE COMPANY
By:
----------------------
FS VARIABLE ANNUITY
ACCOUNT TWO
By: FIRST SUNAMERICA LIFE
INSURANCE COMPANY
By:
----------------------
VISTA BROKER-DEALER
SERVICES, INC.
By:
----------------------
