1
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 a 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 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
2
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 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 along 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
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 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.
3
4. Representations and Warranties
(a) 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 or trust, or other instrument to which First SunAmerica is a
party of 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 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 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
4
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.
(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 of 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 or 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.
5
(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 as 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 top 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 field 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 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
Firm 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 1993 Act, the 9134 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 and event or development
(including, without limitation, a change of applicable law, regulation or
administrative interpretation), which in First SunAmerica's reasonable judgement
warrants and 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
6
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 mater 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 of 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 os suspension of the approval of the Contracts or
distribution thereof by an insurance commission of any state, any loss or
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 to 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.
7
(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:
(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,i f 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 of 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 are 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
8
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-Dealers Services, Inc.
11th Floor
000 X. 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 used 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 used 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 here 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
9
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 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 or such provision
or the remaining provisions of this Agreement.
10
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, privilege or remedy provided by
this Agreement shall not constitute a waiver by such party of any other covenant
or condition 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: /s/ XXXXX X. XXXXXX
-----------------------------------
Senior Vice President and Secretary
FS VARIABLE ANNUITY ACCOUNT TWO
By: FIRST SUNAMERICA LIFE
INSURANCE COMPANY
By: /s/ XXXXX X. XXXXXX
-----------------------------------
Senior Vice President and Secretary
VISTA BROKER-DEALER SERVICES, INC.
By: /s/ XXXXXX X. XXXXXXX
-----------------------------------
