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EXHIBIT (3)(a)
DISTRIBUTION AGREEMENT
THIS AGREEMENT, entered into as of this 28th day of January, 1994, by
and between 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 SEPARATE ACCOUNT ("Separate Account") , a Separate Account
established by Anchor pursuant to the insurance laws of the State of California,
and SUNAMERICA CAPITAL SERVICES, INC., ("Distributor"), a corporation organized
under the laws of the state of Delaware.
WITNESSETH:
WHEREAS, Anchor issues to the public certain variable annuity contracts
identified on the contract specification sheet attached hereto as Attachment A
("Contracts") , which Contracts are currently distributed by SunAmerica
Securities, Inc.; and
WHEREAS, Anchor, by resolution adopted on June 25, 1981, established the
Separate Account on its books of account, for the purpose of issuing variable
annuity contracts; and
WHEREAS, the Separate Account is registered with the Securities and
Exchange Commission ("Commission") as a unit investment trust under the
Investment Company Act of 1940 (File No. 811-3859); and
WHEREAS, the Contracts to be issued by Anchor are registered with the
Commission under the Securities Act of 1933 (the "Act") (File No. 2-86837) for
offer and sale to the public, and otherwise are in compliance with all
applicable laws; and
WHEREAS, the Distributor, a broker-dealer registered under the
Securities Exchange Act of 1934 and a member of the National Association of
Securities Dealers, Inc., proposes to act as distributor on an agency basis in
the marketing and distribution of said Contracts; and
WHEREAS, Anchor desires to obtain the services of the Distributor as
distributor of said Contracts issued by Anchor through the Separate Account to
replace SunAmerica Securities, Inc.;
NOW THEREFORE, in consideration of the foregoing, and of the mutual
covenants and conditions set forth herein, and for other good and valuable
consideration, Anchor, the Separate Account, and Distributor hereby agree as
follows:
1. The Distributor will serve as distributor on an agency basis
for the Contracts which will be issued by Anchor through the Separate
Account.
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2. The Distributor will, either directly or through an affiliate,
provide information and marketing assistance to licensed insurance
agents and broker-dealers on a continuing basis. The Distributor shall
be responsible for compliance with the requirements of state
broker-dealer regulations and the Securities Exchange Act of 1934 as
each applies to Distributor in connection with its duties as distributor
of said Contracts. Moreover,, the Distributor shall conduct its affairs
in accordance with the Rules of Fair Practice of the National
Association of Securities Dealers, Inc.
3. Subject to the agreement of Anchor, the Distributor may enter
into dealer agreements with broker-dealers registered under the
Securities Exchange Act of 1934 and authorized by applicable law to sell
variable annuity contracts issued by Anchor through the Separate
Account. Any such contractual arrangement is expressly made subject to
this Agreement, and the Distributor will at all times be responsible to
Anchor for purposes of the federal securities laws for the distribution
of Contracts issued through the Separate Account. The Distributor
expressly assumes any dealer agreements entered into by SunAmerica
Securities, Inc. with respect to the Contracts.
4. Warranties
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(a) Anchor represents and warrants to the Distributor
that:
(i) Registration Statements on Form N-4 for each of the
Contracts identified on Attachment A have been filed with
the Commission in the form previously delivered to the
Distributor and that copies of any and all amendments
thereto will be forwarded to the Distributor at the time
that they are filed with the Commission;
(ii) The Registration Statement and any further amendments
or supplements thereto will, when they become effective,
conform in all material respects to the requirements of
the Securities Act of 1933 and the Investment Company Act
of 1940, and the rules and regulations of the Commission
under such Acts, and will not contain an untrue statement
of a material fact or omit to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that
this representation and warranty shall not apply to any
statement or omission made in reliance upon and in
conformity with information furnished in writing to Anchor
by the Distributor expressly for use therein;
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(iii) Anchor is validly existing as a stock life
insurance company in good standing under the laws of the
State of California, with power (corporate or other) to
own its properties and conduct its business as described
in the Prospectus, and has been duly qualified for the
transaction of business and is in good standing under the
laws of each other jurisdiction in which it owns or leases
properties, or conducts any business, so as to require
such qualification;
(iv) The Contracts to be issued through the Separate
Account and offered for sale by the Distributor on behalf
of Anchor hereunder have been duly and validly authorized
and, when issued and delivered against payment therefor as
provided herein, will be duly and validly issued and will
conform to the description of such Contracts contained in
the Prospectuses relating thereto;
(v) Those persons who offer and sell the Contracts
are to be appropriately licensed in a manner as to comply
with the state insurance laws;
(vi) The performance of this Agreement and the
consummation of the transactions contemplated by this
Agreement will not result in a breach or violation of any
of the terms or provisions of, or constitute a default
under any statute, any indenture, mortgage, deed of trust,
note agreement or other agreement or instrument to which
Anchor is a party or by which Anchor is bound, Anchor's
Charter as a stock life insurance company or Bylaws, or
any order, rule or regulation of any court or governmental
agency or body having jurisdiction over Anchor or any of
its properties; and no consent, approval, authorization or
order of any court or governmental agency or body is
required for the consummation by Anchor of the
transactions contemplated by this Agreement, except such
as may be required under the Securities Exchange Act of
1934 or state insurance or securities laws in connection
with the distribution of the Contracts by the Distributor;
and
(vii) There are no material legal or governmental
proceedings pending to which Anchor or the Separate
Account is a party or of which any property of Anchor or
the Separate Account is the subject, other than as set
forth in the Prospectus relating to the Contracts, and
other than
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litigation incident to the kind of business conducted by
Anchor, if determined adversely to Anchor, would
individually or in the aggregate have a material adverse
effect on the financial position, surplus or operations of
Anchor.
(b) The Distributor represents and warrants to Anchor that:
(i) It is a broker-dealer duly registered with the
Commission pursuant to the Securities Exchange Act of 1934
and a member in good standing of the National Association
of Securities Dealers, Inc., and is in compliance with the
securities laws in those states in which it conducts
business as a broker-dealer;
(ii) The performance of this Agreement and the
consummation of the transactions herein contemplated will
not result in a breach or violation of any of the terms or
provisions of or constitute a default under any statute,
any indenture, mortgage, deed of trust, note agreement or
other agreement or instrument to which the Distributor is
a party or by which the Distributor is bound, the
Certificate of Incorporation or Bylaws of the Distributor,
or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the
Distributor or its property; and
(iii) To the extent that any statements or omissions
made in the Registration Statement, or any amendment or
supplement thereto are made in reliance upon and in
conformity with written information furnished to Anchor by
the Distributor expressly for use therein, such
Registration Statement and any amendments or supplements
thereto will, when they become effective or are filed with
the Commission, as the case may be, conform in all
material respects to the requirements of the Securities
Act of 1933 and the rules and regulations of the
Commission thereunder and will not contain any untrue
statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make
the statements therein not misleading.
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5. The Distributor, or an affiliate thereof, shall keep, or shall
cause to be kept, in a manner and form prescribed or approved by Anchor
and in accordance with Rules 17a-3 and 17a-4 under the Securities
Exchange Act of 1934, correct records and books of account as required
to be maintained by a registered broker-dealer, acting as distributor,
of all transactions entered into on behalf of Anchor and with respect to
its activities under this Agreement for Anchor. The party maintaining
the books and records required hereunder shall make such records and
books of account available for inspection by the Commission, and Anchor
shall have the right to inspect, make copies of or take possession of
such records and books of account at any time on demand.
6. Subsequent to having been authorized to commence the activities
contemplated herein, the Distributor, or an affiliate thereof, will
cause the currently effective Prospectus relating to the subject
Contracts in connection with its marketing and distribution efforts to
be utilized. As to the other types of sales material, the Distributor,
or an affiliate thereof, agrees that it will cause to be used only sales
materials as have been authorized for use by Anchor and which conform to
the requirements of federal and state laws and regulations, and which
have been filed where necessary with the appropriate regulatory
authorities, including the National Association of Securities Dealers,
Inc.
7. The Distributor, or such other person as referred to in paragraph
6 above, will not distribute any Prospectus, sales literature, or any
other printed matter or material in the marketing and distribution of
any Contract if, to the knowledge of the Distributor, or such other
person, any of the foregoing misstates the duties, obligation or
liabilities of Anchor or the Distributor.
8. Expenses of providing sales presentations, mailings, advertising
and any other marketing efforts conducted in connection with the
distribution or sale of the Contracts shall be borne by Anchor.
9. The Distributor, as distributor of the Contracts, shall not be
entitled to remuneration for its services.
10. 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 in accordance with the directions
furnished by the purchasers of such Contracts at the time of purchase.
11. The Distributor makes no representations or warranties regarding
the number of Contracts to be sold by licensed
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broker-dealers and insurance agents or the amount to be paid thereunder.
The Distributor does, however, represent that it will actively engage in
its duties under this Agreement on a continuous basis while there is an
effective registration statement with the Commission.
12. It is understood and agreed that the Distributor may render similar
services or act as a distributor or dealer in the distribution of other
variable contracts.
13. Anchor will use its best efforts to assure that the Contracts are
continuously registered under the Securities Act of 1933 and, should it
ever be required, under state Blue Sky Laws and to file for approval
under state insurance laws when necessary.
14. Anchor reserves the right at any time to suspend or limit the
public offering of the subject Contracts.
15. Anchor agrees to advise the Distributor immediately of:
(a) any request by the commission (i) for amendment of the
Registration Statement relating to the Contracts, or (ii) for
additional information;
(b) the issuance by the commission of any stop order suspending
the effectiveness of the Registration Statement relating to the
Contracts or the initiation of any proceedings for that purpose;
and
(c) the happening of any material event, if known, which makes
untrue any statement made in the Registration Statement relating
to the Contracts or which requires the making of a change therein
in order to make any statement made therein not misleading.
16. Anchor will furnish to the Distributor such information with
respect to the Separate Account and the Contracts in such form and
signed by such of its officers as the Distributor may reasonably
request; and will warrant that the statements therein contained when so
signed will be true and correct.
17. Each of the undersigned parties agrees to notify the other in
writing upon being apprised of the institution of any proceeding,
investigation or hearing involving the offer or sale of the subject
Contracts.
18. This Agreement will terminate automatically upon its
assignment to any person other than a person which is a wholly owned
subsidiary of SunAmerica Inc. This Agreement
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shall terminate, without the payment of any penalty by either party:
(a) at the option of Anchor, upon sixty days' advance
written notice to the Distributor; or
(b) at the option of the Distributor upon 90 days' written
notice to Anchor; or
(c) at the option of Anchor upon institution of formal
proceedings against the Distributors by the National Association
of Securities Dealers, Inc. or by the Commission; or
(d) at the option of either party, if the other party or any
representative thereof at any time (i) employs any device,
scheme, or artifice to defraud; makes any untrue statement of a
material fact or omits to state a material fact necessary in
order to make the statements made, in light of the circumstances
under which they were made, not misleading; or engages in any
act, practice, or course of business which operates or would
operate as a fraud or deceit upon any person; or (ii) violates
the conditions of this Agreement.
19. Each notice required by this Agreement may be given by telephone
or telefax and confirmed in writing.
20. (a) Anchor will indemnify and hold harmless the Distributor and
each person, if any, who controls the Distributor within the meaning of
the Act against any losses, claims, damages or liabilities to which the
Distributor or such controlling person may become subject, under the Act
or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement, Prospectus or Statement of Additional
Information or any other written sales material prepared 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 (in the
case of the Registration Statement, Prospectus and Statement of
Additional Information) necessary to make the statement therein not
misleading or (in the case of such other sales material) necessary to
make the statement therein not misleading or (in the case of such other
sales material) necessary to make the statements therein not misleading
in the light of the circumstances under which they were made and will
reimburse the Distributor and each such controlling person for any legal
or other expenses reasonably incurred
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by the Distributor or such controlling person in connection with
investigating or defending any such loss, claim, damage, liability or
action, provided, however, that Anchor will not be liable in any such
case to the extent that any such loss, claim, or omission or alleged
omission made in such Registration Statement, Prospectus or Statement of
Additional Information in conformity with information furnished to
Anchor specifically for use therein; and provided, further, that nothing
herein shall be so construed as to protect the Distributor against any
liability to Anchor or the Contract Owners to which the Distributor
would otherwise be subject by reason of willful misfeasance, bad faith
or gross negligence, in the performance of its duties, or by reason of
the reckless disregard by the Distributor of its obligations and duties
under this Agreement.
(b) The Distributor will likewise indemnify and hold harmless
Anchor, each of its directors and officers and each person, if any, who
controls the Trust within the meaning of the Act to the extent, but only
to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in conformity with written
information furnished to the Trust by the Distributor specifically for
use therein.
21. This Agreement shall be subject to the laws of the State of
California and construed so as to interpret the Contracts and insurance
contracts written within the business operation of Anchor.
22. This Agreement covers and includes all agreements, verbal and
written, between Anchor and the Distributor with regard to the marketing
and distribution of the Contracts, and supersedes and annuls any and all
agreements between the parties with regard to the distribution of the
Contracts; except that this Agreement shall not affect the operation of
previous or future agreements entered into between Anchor and the
Distributor unrelated to the sale of the Contracts.
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THIS AGREEMENT, along with any Attachment attached hereto and
incorporated herein by reference, may be amended from time to time by the mutual
agreement and consent of the undersigned parties; provided that such amendment
shall not affect the rights of existing Contract Owners, and that such amendment
be in writing and duly executed.
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/ XXX X. XXXXXXX
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Xxx X. Xxxxxxx
Executive Vice President
VARIABLE ANNUITY ACCOUNT ONE
By: ANCHOR NATIONAL LIFE
INSURANCE COMPANY
By: /s/ XXX X. XXXXXXX
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Xxx X. Xxxxxxx
Executive Vice President
SUNAMERICA CAPITAL SERVICES, INC.
By: /s/ XXXXX XXXXXXX
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XXXXX XXXXXXX
Executive Vice President
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Attachment A
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CONTRACT SPECIFICATION SHEET
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The following variable annuity contracts are the subject of the Distribution
Agreement between Anchor National Life Insurance Company and SunAmerica Capital
services, Inc. dated January 28, 1994 regarding the sale of the following
contracts funded in Variable Separate Account:
1. AMERICAN PATHWAY II