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EXHIBIT 3A
DISTRIBUTION AGREEMENT
THIS AGREEMENT, entered into as of this 28th day of February, 1995, is
among ANCHOR NATIONAL LIFE INSURANCE COMPANY ("Anchor"), a life insurance
company organized under the laws of the State of California, on behalf of itself
and VARIABLE ANNUITY ACCOUNT TWO ("Separate Account"), a separate account
established by Anchor pursuant to the insurance laws of the State of California,
and VISTA BROKER-DEALER SERVICES ("Distributor"), a corporation organized under
the laws of the State of Maryland.
WITNESSETH:
WHEREAS, Anchor 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 Anchor's general account ("Fixed Account Options"); and
WHEREAS, Anchor, 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, NA ("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. 811-8626); 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.
33-81472 and 33-81476, 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, Anchor, 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 regulatory conditions and any other
restrictions that may become applicable to its activities. Anchor 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 Anchor duly registered broker-dealers and licensed insurance
agents (together, "Selling Broker-Dealers") to sell the Contracts on a retail
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basis directly to purchasers, subject to the provisions of this Agreement and a
selling agreement to be entered into between Anchor, 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,
Anchor 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 all states other than New
York. Attached hereto as Exhibit A is a list of all states in which approvals of
the Contracts have been obtained and/or in which the Contracts are cleared for
sale as of the effective date of this Agreement. Anchor shall update this list
from time to time to reflect changes therein, and shall inform Distributor of
such changes, as appropriate. Anchor 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
Anchor 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. Anchor 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 Anchor
may refuse to appoint a person or to pay appointment fees with respect to the
appointment of a person, to the extent consistent with Anchor's internal
policies applicable to all persons selling its products. Distributor shall have
no responsibility in this regard. Anchor 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 Anchor.
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
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.
Anchor 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 Anchor reserves the right to
refuse to appoint any such person, consistent with its duties and
responsibilities under applicable insurance law. Anchor shall be responsible for
the payment of a 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.
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4. Representations and Warranties
(a) Anchor represents and warrants to Distributor on the effective date
of this Agreement that:
(i) Anchor is validly existing as a corporation in good standing
under the laws of the state of California 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 each state other than New York.
(ii) 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 Anchor, and when so executed and
delivered this Agreement shall be the valid and binding obligation of Anchor
enforceable in accordance with its terms.
(iii) 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 Anchor, or any indenture, agreement, mortgage, deed
of trust, or other instrument to which Anchor is a party or by which it is
bound, or violate any law, or, to the best of Anchor's knowledge, any order,
rule or regulation applicable to Anchor of any court or of any federal or State
regulatory body, administrative agency or any other governmental instrumentality
having jurisdiction over Anchor or any of its properties.
(b) Anchor further represents and warrants to Distributor, on the
effective date of each Registration Statement for the Contracts, that:
(1) Anchor has filed with the Commission all statements, notices,
and other documents required for registration of the Contracts, the Separate
Account and the Fixed 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 Anchor
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 Anchor to file a form of this Agreement with the first
post-effective amendment to the Registration Statement.
(2) Anchor 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.
Anchor 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 Anchor by Distributor expressly for use therein.
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(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 Anchor and
conforms to the description thereof in the Registration Statement.
(7) The form of the Contracts have been duly approved to the
extent required by the California insurance commission and by the insurance
commission, agency or other governmental body charged with the regulation of
insurance (herein, "insurance commission") in every state identified in Exhibit
A or otherwise have been cleared for the sale of the Contracts in such state.
(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 Anchor 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
consumption 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
(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.
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(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 Anchor 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 Anchor
(a) For so long as the Contracts are being publicly offered, Anchor
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) Anchor 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) Anchor 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. Anchor
shall provide Distributor with a reasonable opportunity to review and comment on
any such draft before any such material is filed with the Commission. Anchor
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. Anchor shall maintain and keep on file in its principal executive
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) Anchor shall provide Distributor access to such records, officers
and employees of Anchor 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) Anchor 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 Anchor 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 Anchor's reasonable judgment warrants an amendment to either the Registration
Statement or a supplement to the Prospectus, Anchor 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.
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6. Notification of Material Developments
(a) Anchor 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, Anchor 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
suspension of Anchor'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 Anchor (or a person acting
pursuant to its authorization), Anchor 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. Anchor
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 Anchor 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 Anchor. 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 Anchor, 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
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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 Anchor 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 Anchor 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 xxxxxxx.xx
any party.
(a) at the option of Anchor, upon 60 days' advance written notice
to the Distributor; or
(b) at the option of the Distributor upon 60 days' advance written
notice to Anchor; or
(c) at the option of Anchor 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 institute;
or
(d) at the option of the Distributor upon written notice of such
termination to Anchor, if formal proceedings against Anchor 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 Anchor or the Separate Account:
c/o SunAmerica Inc.
0 XxxXxxxxxx Xxxxxx
Xxxxxxx Xxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxx
Vice President
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with 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:
with a copy to:
Attention:
13. Indemnification
(a) Anchor 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
Anchor, 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 Anchor; (ii) may be based upon a
breach of the warranties made by Anchor 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 Anchor 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 Anchor by
Distributor specifically for use therein), provided, however, that in no case is
Anchor'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 Anchor and its
affiliates and each of their respective directors and officers and each person,
if any, who controls Anchor 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 Anchor 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
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(but only to the extent such untrue statement or alleged untrue statement or
omission or alleged omission was made in conformity with information furnished
to Anchor 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 Anchor and Distributor, this Agreement, together with a
certain letter agreement dated as of even date herewith between Anchor 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 Anchor, Chase, Distributor and First SunAmerica Life Insurance Company
("Omnibus Agreement"). As between Anchor 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
10
hereunder. The exercise by any party hereto of any right, 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.
ANCHOR NATIONAL LIFE
INSURANCE COMPANY
By: /s/ XXXXX X. XXXXX
-----------------------------
VARIABLE ANNUITY ACCOUNT TWO
By: ANCHOR NATIONAL LIFE
INSURANCE COMPANY
By: /s/ XXXXX X. XXXXX
-----------------------------
VISTA BROKER-DEALER SERVICES, INC.
By: /s/ XXXXXX X. XXXXXXX
-----------------------------
