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VISTA CAPITAL ADVANTAGE
VARIABLE CONTRACT SELLING AGREEMENT
This Agreement dated ____________________, __________, is by and among First
SunAmerica Life Insurance Company ("Insurer"), Vista Broker-Dealer Services,
Inc. ("Distributor") and
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("Broker/Dealer")
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("General Agent)
If permitted by state law, the Broker/Dealer and the General Agent may be the
same person or entity. if Broker/Dealer and General Agent am the same person or
legal entity, such person or legal entity shall have the rights and obligations
hereunder of both Broker/Dealer and General Agent and this Agreement shall be
binding and enforceable by and against such person or legal entity in both
capacities. If Broker/Dealer and General Agent are not the same person or legal
entity, Broker-Dealer and General Agent shall not have the other entity's
authority and shall not be responsible for the other entities duties hereunder,
except as provided in Section 4 hereof.
This Agreement is for the purpose of arranging for the distribution of certain
variable annuity contracts to be issued by the Insurer and for which Distributor
is distributor through sales people who are licensed agents of the Insurer and
associated with General Agent and are also registered representatives of
Broker/Dealer (each, a "Subagent").
In consideration of the mutual promises and covenants contained in this
Agreement, the Insurer and Distributor appoint Broker/Dealer and General Agent
and their Subagents to solicit and procure applications for Vista Capital
Advantage variable annuity contracts issued by the Insurer (the "Contracts").
This appointment is not deemed to be exclusive in any manner and only extends to
those jurisdictions where the Contracts have been approved for sale. In this
regard, Broker/Dealer and General Agent may rely on written notification, as
revised from time to time, provided by Insurer. Applications shall be taken only
on preprinted application forms supplied by the Insurer or such other form as
may be approved by the Insurer. All completed applications, supporting documents
and initial and subsequent payments are the sole property of the Insurer and
must be promptly remitted, and in any event not later than two business days
after receipt, to the Insurer at such address as it may from time to time
designate. All applications are subject to acceptance by Insurer in its sole
discretion. All money payable in connection with any of the Contracts, whether
as premium, purchase payment or otherwise and whether paid by or on behalf of
any Contract owner or anyone else having interest in a Contract, is the property
of Insurer and shall be transmitted immediately in accordance with the
administrative procedures of Insurer furnished by Insurer to Broker/Dealer and
General Agent.
1. Subagents
General Agent is authorized to recommend for appointment Subagents to solicit
sales of the Contracts. General Agent is responsible for investigating the
character, work experience and background of any proposed Subagent prior to
recommending appointment by Insurer. No Subagent shall solicit applications or
otherwise act on behalf of Insurer until General Agent receives notice that
Subagent has been properly appointed by Insurer. Broker/Dealer and General Agent
are responsible for ensuring that their Subagents (1) offer and sell only the
Contracts, and (2) unless agreed to with Insurer in writing in another selling
agreement, are not authorized to offer and sell any other variable annuity
contracts issued by Insurer. Insurer shall be responsible for state insurance
law filings required with respect to the initial appointment of General Agent
and Subagents and shall pay all filing fees required under such laws by reason
of such appointment. General Agent is responsible for supervising the insurance
solicitation activities of its Subagents and for assuring that Subagents are
properly licensed and in compliance with all applicable Federal, state and local
laws and regulations
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governing insurance activities and all rules and procedures of Insurer.
Insurer reserves the right to refuse to appoint any proposed Subagent and to
terminate any relationship with any Subagent, with or without cause, at any
time. By submitting a Subagent for appointment General Agent and Broker/Dealer
warrant that (1) such Subagent is recommended for appointment; (2) such Subagent
is fully licensed under applicable laws to transact business with Insurer and is
a duty registered representative of Broker/Dealer and (3) all background
investigations required by state and federal laws have been made with respect to
such Subagent.
2. Sales Material
General Agent and Broker/Dealer and the Subagents shall not use any written or
audio-visual sales material (including prepared scripts (or oral presentations)
in connection with the sales of the Contracts or solicitations thereof, unless
such material has been provided by, or approved in writing in advance of such
use by, the Insurer and Distributor. In accordance with the requirements of
Federal law and certain state laws, General Agent and Broker/Dealer shall
maintain complete records indicating the manner and extent of distribution of
any such solicitation material. This material shall be made available to
appropriate federal and state regulatory agencies as required by law or
regulation and to Distributor and Insurer upon written request. General Agent
and Broker/Dealer jointly and severally hold the Insurer, Distributor and their
respective affiliates harmless from any liability arising from the use of any
material which has not been provided specifically approved in writing by Insurer
and Distributor.
3. Prospectuses
For any Contract which is a registered security, Broker/Dealer and General Agent
warrant that solicitation by Broker/Dealer, General Agent and every Subagent
will be made by use of a currently effective Prospectus, that a prospectus will
be delivered concurrently with each sales presentation and that no statements
shall be made to a client superseding or controverting or otherwise inconsistent
with any statement made in the Prospectus. Insurer and Distributor shall furnish
Broker/dealer and General Agent, at no cost to Broker/Dealer or General Agent,
reasonable quantities of currently effective Prospectuses.
4. Broker/Dealer Compliance
Broker/Dealer will fully comply with the requirements of the National
Association of Securities Dealers, Inc. (the "NASD") and of the Securities
Exchange Act of 1934 and such other applicable Federal or state laws and will
establish rules, procedures, supervisory and inspection techniques as necessary
to supervise the activities of its registered representatives who are Subagents
and their compliance with applicable federal and state securities laws, rules
and regulations and NASD rules. Upon request by Distributor, Broker/Dealer will
furnish appropriate records as are necessary to establish diligent supervision.
General Agent will fully comply with the requirements of applicable state
insurance laws and regulations and will maintain all books and records and file
all reports required thereunder to be maintained or filed by a licensed
insurance agent. If Broker/Dealer and General Agent are not the same person or
legal entity, Broker/Dealer and General Agent shall comply with the terms and
conditions of no-action letters made publicly available by the staff of the SEC
regarding the non- registration as a broker-dealer under the 1934 Act, of a
corporation licensed as an insurance agent and associated with a registered
broker-dealer.
Neither Broker/Dealer, General Agent nor any Subagent shall solicit an
application from, or recommend the purchase of a Contract to an applicant
without having reasonable grounds to believe, in accordance with, among other
things, applicable regulations of any state insurance commission, the SEC and
the NASD, that such purchase is suitable for the applicant. While not limited to
the following, a determination of suitability shall be based on information
supplied after a reasonable inquiry concerning the applicant's insurance and
investment objectives and financial situation and needs.
Unless required by a determination of suitability, neither Broker/Dealer,
General Agent nor any Subagent shall encourage a purchase of a Contract to
surrender or exchange his Contract in order to purchase another insurance
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policy or contract.
Broker/Dealer and General Agent shall promptly notify Insurer and Distributor of
any written customer complaint or notice of any regulatory, investigation or
proceeding received by Broker/Dealer, General Agent or Subagent relating to a
Contract or any activities undertaken in connection with this Agreement.
5. Commissions
In no event shall the Insurer or Distributor be liable for the payment of any
commissions with respect to any solicitation made, in whole or in part, by any
person not appropriately licensed and registered prior to the commencement of
such solicitation.
If a Contract is returned to the Insurer pursuant to the "Free Lock" provision
of the Contract, the full commission paid by the Insurer will be unearned and
shall be returned to the Insurer upon demand or, in the absence of such demand,
charged back to the recipient of the commission. Broker/Dealer and General Agent
agree to promptly deliver Contracts and hold the Insurer and Distributor
harmless from and against any claim arising from market loss resulting from late
delivery by Broker/Dealer or General Agent to the owner of the Contract.
Further, with respect to any Contract that is rescinded by the Insurer, as
determined by the Insurer in its sole discretion or if the Insurer otherwise
determines that a commission has not been earned, 100% of such unearned
commission will be returned to the Insurer upon demand or, in the absence of
such demand, charged back to the recipient of the commission.
Notwithstanding anything to the contrary below, the Insurer reserves the right
to determine in its sole discretion commissions different than those set forth
below with respect to any Contract, or group of Contracts which the Insurer in
its sole discretion deems to be a single case, which at the time of application
submission is purchased with an initial payment of greater than $500,000.
With respect to Contracts issued to persons age 80 or younger (at date of
issue), commission will be paid in the amount of 5.75% of the aggregate purchase
payments received and accepted by the Insurer with complete application
information and documentation as required by the Insurer or as a subsequent
purchase payment under a Contract after the Contract is in force.
With respect to Contracts sold to persons age 81 and older (at date of issue),
commissions will be paid in the amount of 2.50% of the aggregate purchase
payments received and accepted by the Insurer with complete application
information and documentation as required by the Insurer as a subsequent
purchase payment under a Contract after the Contract is in force.
6. Indemnification
In addition to any indemnification obligation under any other provision of this
Agreement or otherwise, Broker/dealer and General Agent jointly and severally
agree to hold harmless and indemnify Distributor, the Insurer and their
respective affiliates against any and all claims, liabilities and expenses which
any such party may incur from liabilities (including reasonable attorney fees
and related expenses) arising from the actions or omissions, violations of law
or failure to comply therewith, of Broker/Dealer, General Agent, their Subagents
and other associated persons.
7. Fidelity Bond
Broker/Dealer and General Agent each represent that all Directors, officers,
employees, and Subagents licensed pursuant to this Agreement or who have access
to funds of the Insurer are and will continue to be covered by a blanket
fidelity bond including coverage for larceny, embezzlement or any other
declaration, issued by a reputable bonding company. This bond shall be
maintained at Broker/Dealer's and General Agent's expense. Such bond shall be at
least equivalent to the minimal coverage required under the NASD Rules of Fair
Practice, endorsed to extend coverage to life insurance and annuity
transactions. Broker/Dealer and General Agent acknowledge that the Insurer may
require evidence that such coverage is in force and Broker/Dealer and
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General Agent shall promptly give notice to the Insurer of any notice of
cancellation or change of coverage.
Broker/Dealer and General Agent each assign any proceeds received from the
Fidelity bond company to the Insurer to the extent of the Insurer's loss due to
activities covered by the bond. If there is any deficiency, Broker/Dealer and
General Agent will promptly pay the Insurer that amount on demand and
Broker/Dealer and General Agent jointly and severally indemnity and hold
harmless the Insurer from any deficiency and from the cost of collection.
8. Limitations of Authority
The Contract forms are the sole property of the Insurer. No person other than
the Insurer has the authority to make, alter or discharge any policy, Contract,
certificate, supplemental contract or form issued by the Insurer. No person
other than the Insurer has the right to waive any provision with respect to any
contract or policy. No person other than the Insurer has the authority to enter
into any proceeding in a court of law or before a regulatory agency in the name
of or on behalf of the Insurer.
9. Market Timer Program
Insurer has available a Market Timer Program which allows a market-timer service
to effect multiple transfers or other transactions. Broker/Dealer or its
Subagents desire to use this program, they may do so only by executing a Market
Timer Agreement. This Agreement specifies that if the impact of processing
exchange transactions received from all outside sources is deemed to be
injurious to one of Insurers separate accounts or a subaccount thereof, then
Insurer in its sole discretion may elect not to process the exchanges. Insurer
will notify the Service of the inability to process the requested exchange.
10. Representation and Warranties
Each party hereto represents and warrants to each other party, as follows:
(i) It is duly organized, validly existing and in good standing under the laws
of the state of its incorporation or other corresponding applicable law and has
all requisite corporate power to carry on its business as now being conducted
and to perform its obligations as contemplated by this Agreement.
(ii) As of the date this Agreement becomes effective, (as defined in Paragraph
10 below) it will have all licenses, approvals, permits and authorizations of,
and registrations with, all authorities and agencies, including non-governmental
self-regulatory agencies, required under all federal, state, and local laws and
regulations to enable it to perform its obligations as contemplated by this
Agreement.
(iii) It has all requisite corporate power and authority to enter into this
Agreement. The execution, delivery and performance of this Agreement have been
duly and validly authorized by all necessary corporate action and this Agreement
constitutes the legal, valid and binding agreement of such party, enforceable
against it in accordance with its terms, except as the same may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally and general
principals of equity.
(iv) Except as provided in this Agreement, no approval, authorization, consent,
license, clearance or order of, declaration or notification to, or filing or
registration with, any governmental or regulatory authority (including, without
limitation, any non-governmental regulatory agencies or authorities) is required
to be obtained by it for of the transactions contemplated in this Agreement.
11. General Provisions
(a) Effectiveness
This Agreement shall be effective, with respect to any Contract which is a
registered security, on the date that the registration statement containing the
Prospectus for such Contract is declared effective.
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(b) Waiver
Waiver by any of the parties to promptly insist upon strict compliance with any
of the obligations of any other party under this Agreement will not be deemed to
constitute a waiver of the right to enforce strict compliance.
(c) Independent Contractors
Broker/Dealer, General Agent and Subagents are independent contractors and not
employees or subsidiaries of Distributor or the Insurer.
(d) Independent Assignment
No assignment of this Agreement or of commissions or other payments under this
Agreement shall be valid without the prior written consent of the Insurer and
the Distributor.
(e) Notice
Any notice pursuant to this Agreement shall be mailed, postage paid, to the last
address communicated by the receiving party to the other parties to this
Agreement.
(f) Severability
To the extent this Agreement may be in conflict with any applicable law or
regulation, this Agreement shall be construed in a manner not inconsistent with
such law or regulation. The invalidity or illegality of any provision of this
Agreement shall not be deemed to effect the validity or legality of any other
provision of this Agreement.
(g) Amendment
This Agreement may be amended by the Insurer and the Distributor in a writing
duly executed by the Insurer and the Distributor. The submission of an
application for the Contracts by Broker/Dealer or General Agent five or more
business days after notice of any such amendment has been sent to the other
parties shall constitute agreement to such amendment.
(h) Termination
This Agreement may be terminated by any party upon written notice to the other
parties and termination shall be effective immediately.
(i) New York Law
This Agreement shall be construed in accordance with the laws of the State of
New York.
12. RapidApp Program (Optional)
If applications are transmitted to the Insurer pursuant to the lnsurer's
RapidApp Program, the following provisions shall apply to such applications and
Contracts issued pursuant to the RapidApp Program.
(a) Broker/Dealer and General Agent will agree and will require each Subagent to
communicate with owners of the Contracts issued through the RapidApp Program in
order to obtain and deliver to the Insurer the signed confirmation for the
Contract. Broker/Dealer and General Agent each further agree to provide any
assistance or cooperation required to enforce a Contract issued under the
RapidApp Program which shall include, but not be limited to, providing the
Insurer access to recordings of telephone conversations with customers of
Broker/Dealer or General Agent containing their consent to the purchase of
Contracts, or providing statements or affidavits from such Subagents as to the
customer's consent to the making of the Contract.
(b) In the event the owner of a Contract repudiates or rescinds the Contract and
the Insurer, in its sole discretion, waives any surrender charges, the full
commission paid by the Insurer will be returned to the Insurer upon demand or,
in the absence of such demand, charged back to the recipient of the commission.
In addition, all amounts equal to any market loss arising from such rescission
or repudiation will be paid by Broker/Dealer or General
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Agent on demand, or in the absence of such demand, charged back to Broker/Dealer
or General Agent.
(c) Broker/Dealer and General Agent each agree that it will be solely
responsible for the transmission or failure of transmission of application
information to the Insurer. Broker/Dealer and General Agent each warrant that
all application information will be accurate and can be relied upon by the
Insurer.
(d) Broker/Dealer and General Agent each agree to pay the Insurer an amounts
equal to any market loss resulting from the misallocation of the initial
purchase payment into the subaccounts, which misallocation was the result of
Insurer relying on Broker/Dealer's, General Agent's, or their Subagents'
application information. In the absence of a demand for payment, such amounts
shall be charged back to Broker/Dealer or General Agent.
(e) Broker/Dealer and General Agent each agree that their representatives or
Subagents who are resident and licensed in those jurisdictions approved by the
Insurer may submit applications to the Insurer pursuant to the RapidApp Program
and agree to the provisions of this paragraph 11. Broker/Dealer and General
Agent acknowledge that agreeing to the provisions this paragraph 11 does not
require their Subagents to submit all applications to the Insurer pursuant to
the RapidApp Program.
IN WITNESS WHEREOF, this Agreement has been executed by duly authorized
representatives of the parties to this Agreement as of the date set forth above.
FIRST SUNAMERICA LIFE INSURANCE COMPANY
By: __________________________________
Its: Senior Vice President
VISTA BROKER-DEALER SERVICES, INC.
By: __________________________________
Its:
Check here if your Subagents
will participate in RapidApp
_____ Yes _____ No
______________________________________
BROKER/DEALER NAME (Please Print)
By: __________________________________
Its:
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GENERAL AGENT NAME (Please Print)
By: __________________________________
Its: