EXHIBIT (h)(35)(a)
SERVICE AGREEMENT
This Agreement is entered into effective as of the 1st day of October, 2000,
by and between FIDELITY INVESTMENTS INSTITUTIONAL OPERATIONS COMPANY, INC.
("FIIOC") and THE UNITED STATES LIFE INSURANCE COMPANY IN THE CITY OF NEW YORK
("Company").
WHEREAS, FIIOC provides transfer agency and other services to Fidelity's
Variable Insurance Products Fund, Variable Insurance Products Fund II and
Variable Insurance Products Fund III (collectively "Funds"); and
WHEREAS, the services provided by FIIOC on behalf of the Funds include
responding to inquiries about the Funds, including the provision of information
about the Funds' investment objectives, investment policies, portfolio
holdings, etc.; and
WHEREAS, Company holds shares of the Funds in order to fund certain variable
annuity contracts, group annuity contracts, and/or variable life insurance
policies, the beneficial interests in which are held by individuals, plan
trustees, or others who look to Company to provide information about the Funds
similar to the information provided by FIIOC; and
WHEREAS, the Company and one or more of the Funds have entered into one or
more Participation Agreements, under which the Company agrees not to provide
information about the Funds except for information provided by the Funds or
their designees; and
WHEREAS, FIIOC and Company desire that Company be able to respond to
inquiries about the Funds from individual variable annuity owners, participants
in group annuity contracts issued by the Company, and owners and participants
under variable life insurance policies issued by the Company, and prospective
customers for any of the above; and
WHEREAS, FIIOC and Company recognize that Company's efforts in responding to
customer inquiries will reduce the burden that such inquiries would place on
FIIOC should such inquiries be directed to FIIOC.
NOW, THEREFORE, the parties do agree as follows:
1. Information to be Provided to Company. FIIOC agrees to provide to
Company, on a periodic basis, directly or through a designee, information about
the Funds' investment objectives, investment policies, portfolio holdings,
performance, etc. The content and format of such information shall be as FIIOC,
in its sole discretion, shall choose. FIIOC may change the format and/or
content of such informational reports, and the frequency with which such
information is provided. For purposes of Section 4.2 of each of the Company's
Participation Agreement(s) with the Funds, FIIOC represents that it is the
designee of the Funds, and Company may therefore use the information provided
by FIIOC without seeking additional permission from the Funds.
2. Use of Information by Company. Company may use the information provided
by FIIOC in communications to individuals, plan trustees, or others who have
legal title or beneficial interest in the annuity or life insurance products
issued by Company, and to prospective purchasers of such products or beneficial
interest thereunder. If such information is contained as part of larger pieces
of sales literature, advertising, etc., such pieces shall be furnished for
review to the Funds in accordance with the terms of the Company's Participation
Agreements with the Funds. Nothing herein shall give the Company the right to
expand upon, reformat or otherwise alter the information provided by FIIOC.
Company acknowledges that the information provided it by FIIOC may need to be
supplemented with additional qualifying information, regulatory disclaimers, or
other information before it may be conveyed to persons outside the Company.
3. Compensation to Company. In recognition of the fact that Company will
respond to inquiries that otherwise would be handled by FIIOC, FIIOC agrees to
pay Company a quarterly fee computed as follows:
At the close of each calendar quarter FIIOC will determine the Average Daily
Assets held in the Funds by the Company. Average Daily Assets shall be the sum
of the daily assets for each calendar day in the quarter divided by the number
of calendar days in the quarter. The Average Daily Assets shall be multiplied
by ______ (______ basis points) and that sum shall be divided by four. The
resulting number shall be the quarterly fee for that quarter, which shall be
paid to Company during the following month.
Should any Participation Agreement(s) between Company and any Fund(s) be
terminated effective before the last day of a quarter, Company shall be
entitled to a fee for that portion of the quarter during which the
Participation Agreement was still in effect, unless such termination is due to
misconduct on the part of the Company. For such a stub including the date of
termination of the Participation Agreement(s), divided by the number of
calendar days in that quarter for which the Participation Agreement was in
effect. Such Average Daily Assets shall be multiplied by ______ (______ basis
points) and that number shall be multiplied by the number of days in such
quarter that the Participation Agreement was in effect, then divided by three
hundred sixty-five. The resulting number shall be the quarterly fee for the
stub quarter, which shall be paid to Company during the following month.
Notwithstanding the foregoing, compensation for each calendar quarter will
not exceed ______ ($______).
4. Termination. This Agreement may be terminated by Company at any time upon
written notice to FIIOC. FIIOC may terminate this Agreement at any time upon
ninety (90) days' written notice to Company. FIIOC may terminate this Agreement
immediately upon written notice to Company (1) if required by any applicable
law or
regulation, (2) if so required by action of the Fund(s)Board of Trustees, or
(3) if Company engages in any material breach of this Agreement. This Agreement
shall terminate immediately and automatically upon the termination of Company's
Participation Agreement(s) with the Funds, and in such event no notice need be
given hereunder.
5. Applicable Law. The Agreement shall be contrued and the provisions hereof
interpreted under and in accordance with the laws of the Commonwealth of
Massachusetts.
6. Assignment. This Agreement may not be assigned, except that it shall be
assigned automatically to any successor to FIIOC as the Fund's transfer agent,
and any such successor shall be bound by the terms of this Agreement.
IN WITNESS WHEREOF, the parties have set their hands as of the date first
written above.
FIDELITY INVESTMENTS INSTITUTIONAL
OPERATIONS COMPANY, INC.
By:
-------------------------
Name:
-------------------------
Title:
-------------------------
THE UNITED STATES LIFE INSURANCE COMPANY
IN THE CITY OF NEW YORK
By:
-------------------------
Name:
-------------------------
Title:
-------------------------
