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