Exhibit A(3)
EXECUTION COPY
DISTRIBUTION AGREEMENT
DISTRIBUTION AGREEMENT (the "Agreement") made as of March 1, 1999,
effective March 4, 1999, by and among NASDAQ-AMEX INVESTMENT PRODUCT SERVICES,
INC., a Delaware corporation (the "Sponsor"); NASDAQ-100 TRUST-sm-, SERIES 1, a
unit investment trust (the "Trust") to be organized under the laws of the State
of New York by The Bank of New York, as Trustee of such Trust; and ALPS MUTUAL
FUNDS SERVICES, INC., a Colorado corporation (the "Distributor").
WITNESSETH
WHEREAS, the Trust is to be governed by a Trust Indenture and Agreement
(the "Trust Agreement") between the Sponsor and The Bank of New York, as trustee
(the "Trustee") pursuant to which there will be created units of fractional
undivided interest in the Trust referred to as Nasdaq-100 Shares and
representing proportionate interests in the portfolio of securities and assets
held by the Trust;
WHEREAS, the Sponsor and the Trust have filed with the Securities and
Exchange Commission (the "Commission") a registration statement on Form S-6
(Registration No. 333-61001), including as part thereof a prospectus, under the
Securities Act of 1933, as amended (the "1933 Act"), and a registration
statement on Form N-8B-2 (Registration No. 811-08947) under the Investment
Company Act of 1940, as amended (the "1940 Act"), the forms of which have
heretofore been delivered to the Distributor; and
WHEREAS, the Trust will create and redeem Nasdaq-100 Shares only in
aggregations constituting a Creation Unit, as such term is used in the
Registration Statement (as defined herein), in accordance with the terms and
conditions set forth therein; and
WHEREAS, the Distributor is a registered broker-dealer under the
Securities Exchange Act of 1934, as amended (the "1934 Act"); and
WHEREAS, the Trust and the Sponsor desire to retain the Distributor to
act as distributor with respect to the creation and distribution of Nasdaq-100
Shares in Creation Unit size aggregations as set forth in the Trust's
Registration Statement, to hold itself available to receive and process orders
for Nasdaq-100 Shares in the manner set forth in the Trust's then-current
prospectus and to enter into arrangements with dealers; and
WHEREAS, the Distributor desires to render these services to the Trust;
NOW, THEREFORE, in consideration of the mutual covenants contained in
this Agreement, the Sponsor, the Trust and the Distributor hereby agree as
follows:
SECTION 1
DISTRIBUTION AND BENEFICIAL OWNERS
1.1 APPOINTMENT. The Trust and the Sponsor hereby appoint the
Distributor as the exclusive distributor for Nasdaq-100 Shares in Creation Unit
size aggregations on the terms and for the periods set forth in this Agreement,
and the Distributor hereby accepts such appointment and agrees to act in such
capacity hereunder.
1.2 DEFINITIONS.
(a) The term "Registration Statement" shall mean the
registration statement most recently filed from time to time by the Trust with
the Commission and effective under the 1933 Act and the 1940 Act, as such
registration statement is amended by any amendments thereto at the time in
effect.
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(b) The term "Prospectus" shall mean the prospectus included
as part of the Trust's Registration Statement, as such prospectus may be amended
or supplemented from time to time.
(c) The term "Depository" shall mean The Depository Trust
Company, New York, New York.
(d) All capitalized terms used but not defined in this
Agreement shall have the meanings ascribed to such terms in the Registration
Statement.
1.3 DISTRIBUTOR'S DUTIES. The Distributor shall have the following
duties:
(a) The Distributor agrees, as agent for the Trust, that all
orders to create Nasdaq-100 Shares in Creation Unit size aggregations must be
placed with the Distributor, and it is the responsibility of the Distributor to
transmit such orders to the Trustee, as described in the Registration Statement
and in accordance with the provisions thereof.
(b) The right granted to the Distributor to receive all orders
to create Nasdaq-100 Shares in Creation Unit size aggregations and to transmit
such orders to the Trustee shall be exclusive, and no other principal
underwriter or distributor shall be granted such right; provided, however, that
nothing herein shall affect or limit the right and ability of the Trustee to
accept Portfolio Deposits and related Cash Components (each as defined in the
Prospectus) through or outside of the Nasdaq-100 Clearing Process, and as
provided in and in accordance with the then-current Prospectus. The exclusive
right to place creation orders for Nasdaq-100 Shares granted to the Distributor
may be waived by the Distributor by notice to the Trust and the Sponsor in
writing, either unconditionally or subject to such conditions and limitations as
may be set forth in such notice to the Trust and the Sponsor. The Trust and the
Sponsor hereby acknowledge that the
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Distributor may render principal underwriting, distribution and other services
to other parties, including other unit investment trusts.
(c) At the request of the Trust and the Sponsor, the
Distributor shall enter into Nasdaq-100 Participant Agreements between and among
Participating Parties, the Distributor and the Trustee, in accordance with the
provisions of the Registration Statement and current Prospectus and in the form
attached hereto as Exhibit A. The Distributor shall make available for
inspection during normal business hours at its offices at 000 00xx Xxxxxx, Xxxxx
0000, Xxxxxx, Xxxxxxxx, a list of the Participating Parties who have entered
into Nasdaq-100 Participant Agreements with the Distributor and the Trustee.
(d) Except as otherwise noted in the Registration Statement
and current Prospectus, the offering price for all Creation Units sold to
investors by the Distributor will be the net asset value per Creation Unit
calculated in the manner described in the Registration Statement and current
Prospectus.
(e) In performing its duties hereunder, the Distributor shall
act in conformity with the Trust Agreement, Registration Statement and the
then-current Prospectus relating to Nasdaq-100 Shares and the Trust, and in
conformity with the instructions and directions of the Sponsor and the Trustee
of the Trust, and will comply with and conform in all material respects to the
requirements of the 1933 Act, the 1934 Act and the 1940 Act and all other
applicable federal and state laws, regulations and rulings, and the rules and
regulations of the National Association of Securities Dealers, Inc. ("NASD").
(f) The Distributor shall not be obligated to accept any
certain number of orders for Creation Unit size aggregations of Nasdaq-100
Shares; provided, however, that the Distributor shall accept all orders
submitted to it in proper form. Nothing herein contained shall
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prevent the Distributor from entering into like distribution arrangements with
other investment companies.
(g) The Distributor shall review, clear and file all
advertising, sales, marketing and promotional materials of the Trust provided to
the Distributor, or in the preparation of which it has participated, with the
NASD as required by the 1933 Act and the 1940 Act, and the rules promulgated
thereunder, and by the rules of the NASD. The Distributor is not authorized to
give any information or to make any representations other than those contained
in the Registration Statement or current Prospectus, as amended from time to
time, or contained in reports to Beneficial Owners or other materials that may
be prepared by the Trustee or Sponsor on behalf of the Trust for the
Distributor.
(h) The Distributor shall consult with the Sponsor and the
Trust with respect to the production and printing of Prospectuses to be used in
connection with creations by creators of Creation Unit size aggregations of
Nasdaq-100 Shares.
(i) In performing its duties hereunder the Distributor shall
be entitled to rely on and shall not be responsible in any way for information
provided to it by the Trustee, the Sponsor or the Trust and their respective
service providers and shall not be liable or responsible for the errors and
omissions of such service providers, provided that the foregoing shall not be
construed to protect the Distributor against any liability to the Trustee, the
Sponsor, the Trust or the Trust's Beneficial 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 its reckless
disregard of its obligations and duties under this Agreement.
(j) The Distributor has as of the date hereof, and shall at
all times have and maintain, net capital of not less than that required by Rule
15c3-1 of the 1934 Act, or any successor provision thereto. In the event that
the net capital of the Distributor shall fall below that required by Rule
15c3-1,
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or any successor provision thereto, the Distributor shall promptly provide
notice to the Trustee and the Sponsor of such event.
1.4 THE TRUST'S AND SPONSOR'S DUTIES. The Trust and Sponsor shall have
the following duties:
(a) The Trust agrees to issue Creation Unit size aggregations
of Nasdaq-100 Shares, subject to paragraph (e) of this Section 1.4, and to
request the Depository to record on its books the ownership of such Nasdaq-100
Shares in accordance with the book-entry system procedures described in the
Prospectus in such amounts as the Distributor has requested in writing or other
means of data transmission, as promptly as practicable after receipt by the
Trustee on behalf of the Trust of the requisite Portfolio Deposit and Cash
Component, if any, (together with any fees) for such creations and acceptance by
the Trustee or by the Distributor on behalf of the Trust of a creation order for
such Nasdaq-100 Shares, upon the terms described in the Registration Statement.
(b) The Trust and Sponsor shall furnish to the Distributor
copies of all information, financial statements and other papers which the
Distributor may reasonably request for use in connection with the distribution
of Creation Units. The Trust and the Sponsor shall make available to the
Distributor such number of copies of the current Prospectus as the Distributor
may reasonably request. The Trust and the Sponsor authorize the Distributor to
use the Prospectus, but the Trust and the Sponsor shall not be responsible in
any way for any information, statements or representations given or made by the
Distributor or its representatives or agents other than such information,
statements or representations as are contained in the Prospectus or financial
reports filed on behalf of the Trust or in any sales literature or
advertisements specifically approved by the Trust and the Sponsor in writing.
(c) The Sponsor agrees that it will take all necessary action
to register an indefinite number of Nasdaq-100 Shares under the 1933 Act. The
Sponsor shall take, from time to time, such
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steps, including payment of the related filing fees, as may necessary to
register Nasdaq-100 Shares under the 1933 Act and the Trust under the 1940 Act
to the end that all Creation Unit size aggregations of Nasdaq-100 Shares will be
properly registered under the 1933 Act and the 1940 Act. The Sponsor agrees to
file from time to time such amendments, reports and other documents as may be
necessary in order that there may be in a Registration Statement or Prospectus
no (i) untrue statement of a material fact or (ii) omission to state a material
fact necessary in order to make the statements therein, in the case of the
Prospectus, in light of the circumstances in which made, not misleading. The
Distributor shall furnish such information and other material relating to its
affairs and activities as may be required by the Trust and the Sponsor for
inclusion in the Registration Statement or Prospectus.
(d) The Trust and the Sponsor shall keep the Distributor
informed of the states and other foreign and domestic jurisdictions in which the
Trust has effected notice filings of Nasdaq-100 Shares for sale under the
securities laws thereof. The Distributor shall furnish such information and
other material relating to its affairs and activities as may be required by the
Trust and the Sponsor in connection with such filings.
(e) In accordance with the provisions of the then-current
Prospectus, the Trust may reject any creation order for Creation Unit size
aggregations of Nasdaq-100 Shares or stop all receipts of creation orders for
Nasdaq-100 Shares at any time or from time to time upon reasonable notice to the
Distributor.
(f) The Trust and the Sponsor shall notify the Distributor
promptly of:
1. any amendments to the Trust's Registration Statement
or Prospectus;
2. any inquiries by the Commission regarding additional
information or of any stop order suspending the
effectiveness of the Trust's Registration Statement
or the initiation of any proceeding for that purpose;
and
3. all significant actions of the Commission having a
material impact with respect to any amendment to the
Trust's Registration Statement or Prospectus.
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1.5 REPRESENTATIONS.
(a) The Distributor represents and warrants to the Trust and
the Sponsor that (i) it is duly organized as a Colorado corporation and is and
at all times will remain duly authorized and licensed to carry out its services
as contemplated herein; (ii) the execution, delivery and performance of this
Agreement are within its power and have been duly authorized by all necessary
action; and (iii) its entering into this Agreement or providing the services
contemplated hereby does not conflict with or constitute a default or require a
consent under or breach of any provision of any agreement or document to which
the Distributor is a party or by which it is bound, including, but not limited
to, any Members Agreement with the National Association of Securities Dealers,
Inc. (except for any consent in writing which shall have been obtained by the
date hereof).
(b) The Sponsor represents and warrants to the Distributor
that (i) the Registration Statement and the Prospectus have been prepared in
conformity in all material respects with the 1933 Act, the 1940 Act and the
rules and regulations of the Commission (the "Rules and Regulations"); (ii) the
Registration Statement and Prospectus contain all statements required to be
stated therein in accordance with the 1933 Act, the 1940 Act and the Rules and
Regulations; and (iii) all statements of fact contained therein are true and
correct in all material respects at the time indicated or the effective date, as
the case may be, and neither the Registration Statement nor the Prospectus shall
include any 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, in
the case of the Prospectus in light of the circumstances in which made, not
misleading. The Trust and the Sponsor shall from time to time file such
amendment or amendments to the Registration Statement and the Prospectus as, in
the light of future developments, shall, in the opinion of the Trust's counsel,
be necessary in order to have the Registration Statement and the Prospectus at
all times contain all material facts required to be stated therein or necessary
to make
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the statements therein, in the case of the Prospectus in light of the
circumstances in which made, not misleading to a purchaser of Nasdaq-100 Shares.
The Trust shall not file any amendment to the Registration Statement or the
Prospectus without giving the Distributor reasonable notice thereof in advance,
provided that nothing in this Agreement shall in any way limit the Trust's right
to file at any time such amendments to the Registration Statement or the
Prospectus as the Trust may deem advisable. Notwithstanding the foregoing, the
Trust and the Sponsor shall not be deemed to make any representation or warranty
as to any information or statement provided by the Distributor for inclusion in
the Registration Statement or the Prospectus.
SECTION 2
FEES AND EXPENSES
2.1 COMPENSATION OF THE DISTRIBUTOR. The Sponsor shall pay to the
Distributor, for its services described in this Agreement, an annual
distribution fee of $35,000; 1/12 of such fee shall be paid monthly in advance
on the first day of each calendar month with the first payment to be delivered
upon the effectiveness of this Agreement in a prorated amount.
2.2 EXPENSES.
(a) Each party hereto will bear its own expenses in connection
with this Agreement unless otherwise agreed by the parties hereto in writing. In
addition, the expenses of the Trust shall be borne by the Trust as described
under the caption "Expenses of the Trust" in the Prospectus.
(b) The Distributor shall bear the following costs and
expenses relating to the distribution of Nasdaq-100 Shares: (i) the costs (other
than those payable pursuant to the Trust's agreement with the Depository) of
processing and maintaining records of creations of Creation Units; (ii) all
costs of maintaining the records required of a broker/dealer registered under
the 1934 Act; (iii) the expenses of maintaining its registration or
qualification as a dealer or broker under federal or state
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laws; (iv) the expenses incurred by the Distributor in connection with normal
NASD filing fees (expedited NASD filing fees will be billed to the Sponsor); and
(v) all other expenses incurred in connection with the distribution services as
contemplated herein, except as otherwise specifically provided in this
Agreement.
SECTION 3
INDEMNIFICATION
3.1 INDEMNIFICATION OF DISTRIBUTOR. The Sponsor agrees to indemnify,
defend and hold the Distributor, any person who controls the Distributor within
the meaning of Section 15 of the 1933 Act, and their respective officers and
directors (any of the Distributor, such control persons, and their respective
officers and directors, for purposes of this Section 3.1, an "Indemnitee"), free
and harmless from and against any and all claims, demands, liabilities, and
expenses (including costs reasonably incurred in connection with investigating
or defending such claims, demands or liabilities and any counsel fees reasonably
incurred in connection therewith) which the Indemnitee may incur, under the 1933
Act or under common law or otherwise, arising out of or based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Trust's Registration Statement, or the omission or alleged omission to state in
such document a material fact required to be stated thereon or necessary to make
the statements therein not misleading or, with respect to the Prospectus or any
amendment or supplement thereto, any untrue statement or alleged untrue
statement of a material fact or omission or alleged omission to state in such
document a material fact required to be stated therein or necessary to make the
statements therein in the light of the circumstances under which they were made,
not misleading; provided, however, that nothing in this Section 3.1 shall
protect the Indemnitee against any liability to the Trust or its Beneficial
Owners that the Indemnitee would otherwise be subject to (i) by reason of
willful malfeasance, bad faith, or gross negligence in the performance of its
duties, (ii) by
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reason of the Indemnitee's reckless disregard of its obligations and duties
under this Agreement, or (iii) where such liability arises out of or is based
upon an untrue statement or omission or alleged untrue statement or omission in
the Trust's Registration Statement or Prospectus that was made in reliance upon
and in conformity with written information furnished by the Distributor to the
Trust and the Sponsor; and provided, further, that the Trust will not be liable
in any such case to the Indemnitee with respect to any untrue statement or
omission or alleged untrue statement or omission made in the Registration
Statement or the Prospectus that is subsequently corrected in such document (or
an amendment thereof or supplement thereto), if a copy of the Prospectus (or
such amendment thereof or supplement thereto) was not sent or given to the
person asserting any such claim, demand, liability or expense at or before the
written confirmation of the sale to such person in any case where such delivery
is required by the 1933 Act, and the Trust had notified the Distributor of the
amendment or supplement prior to the sending of the written confirmation of
sale.
The Sponsor's obligation to indemnify the Indemnitee is expressly
conditioned upon the Indemnitee's notification of the Sponsor of the
commencement of any action against the Indemnitee, which notification shall be
given by letter or by facsimile transmission addressed to the Sponsor at its
principal offices in Washington, DC, and sent to the Sponsor by the person
against whom such action is brought within 10 days after the summons or other
first legal process shall have been served. The Indemnitee's failure to so
notify the Sponsor shall not relieve the Sponsor of any liability which it may
have to the Indemnitee by reason of any such untrue statement or omission or
alleged untrue statement or omission independent of this indemnification. The
Sponsor will be entitled to assume the defense of any suit brought to enforce
any such claim, demand or liability and to retain legal counsel of good standing
chosen by the Sponsor and approved by the Indemnitee (such approval not to be
unreasonably withheld). If the Sponsor elects to assume the defense of any such
suit and retain counsel approved by
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the Indemnitee, the defendant or defendants in such suit shall bear the fees and
expenses of any additional counsel retained by any of them. In the event the
Sponsor does not elect to assume the defense of any such suit and retain counsel
of good standing approved by the Indemnitee, or the Indemnitee does not approve
of the counsel chosen by the Sponsor (such approval not to be unreasonably
withheld), the Sponsor shall bear the fees and expenses of any counsel retained
by the Indemnitee. The indemnification agreement contained in this Section 3.1
shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of the Indemnitee and shall survive the sale
of any Creation Units made pursuant to purchase orders obtained by the
Indemnitee or the termination of this Agreement. This indemnification will inure
exclusively to the benefit of the Indemnitee and its successors, assigns and
estate. The Trust and the Sponsor shall promptly notify the Distributor of the
commencement of any litigation or proceeding against the Trust or the Sponsor in
connection with the issue and sale of any Creation Units.
3.2 INDEMNIFICATION OF THE SPONSOR. The Distributor agrees to
indemnify, defend, and hold the Sponsor, any person who controls the Sponsor
within the meaning of Section 15 of the 1933 Act, and their respective officers
and directors (for purposes of this Section 3.2, the Sponsor, its controlling
persons, and their respective officers and directors are collectively referred
to as the "Sponsor Affiliates"), free and harmless from and against any and all
claims, demands, liabilities, and expenses (including costs reasonably incurred
in investigating or defending such claims, demands or liabilities and any
counsel fees reasonably incurred in connection therewith) which the Sponsor
Affiliates may incur, under the 1933 Act or under common law or otherwise,
arising out of or based upon (i) any untrue statement or alleged untrue
statement of a material fact contained in information furnished by the
Distributor to the Sponsor for use in the Registration Statement or Prospectus
in effect from time to time, or (ii) any omission or alleged omission, on the
part of the Distributor, to state a material fact in
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connection with such information required to be stated in the Registration
Statement or Prospectus or necessary to make such information not misleading, it
being understood that the Sponsor will rely upon the information provided by the
Distributor for use in the preparation of the Registration Statement and the
Prospectus, or (iii) any alleged act or omission on the Distributor's part as
the Trust's agent that has not been expressly authorized by the Sponsor in
writing.
The Distributor's obligation to indemnify the Sponsor Affiliates is
expressly conditioned upon the Distributor being notified of the commencement of
any action brought against the Sponsor Affiliates, which notification shall be
given by letter or facsimile transmission addressed to the Distributor at its
principal offices in Denver, Colorado and sent to the Distributor by the person
against whom such action is brought within 10 days after the summons or other
first legal process shall have been served. The Sponsor Affiliates' failure to
notify the Distributor of the commencement of any such action shall not relieve
the Distributor from any liability which it may have to the Sponsor Affiliates
by reason of any such untrue statement or omission, alleged untrue statement or
omission, or alleged act or omission on the part of the Distributor independent
of this indemnification. The Distributor will be entitled to assume the defense
of any suit brought to enforce any such claim, demand or liability and to retain
legal counsel of good standing chosen by the Distributor and approved by the
Sponsor Affiliate (such approval not to be unreasonably withheld). If the
Distributor elects to assume the defense of any such suit and retain counsel
approved by the Sponsor Affiliate, the defendant or defendants in such suit
shall bear the fees and expenses of any additional counsel retained by any of
them. In the event the Distributor does not elect to assume the defense of any
such suit and retain counsel of good standing approved by the Sponsor Affiliate,
or the Sponsor Affiliate does not approve of the counsel chosen by the
Distributor (such approval not to be unreasonably withheld), the Distributor
shall bear the fees and expenses of any counsel retained by the Sponsor
Affiliate. The indemnification agreement contained in
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this Section 3.2 shall remain operative and in full force and effect regardless
of any investigation made by or on behalf of the Sponsor Affiliate and shall
survive the sale of any Creation Units made pursuant to purchase orders obtained
by the Distributor or the termination of this Agreement. This indemnification
will inure exclusively to the benefit of the Sponsor Affiliate and its
successors, assigns and estate. The Distributor shall promptly notify the Trust
and the Sponsor of the commencement of any litigation or proceeding against the
Distributor in connection with the issue and sale of any Creation Units.
3.3 SETTLEMENT OF CLAIMS. No Indemnitee or indemnified Sponsor
Affiliate shall settle any claim against it for which it intends to seek
indemnification from the indemnifying party, under the terms of Section 3.1 or
3.2 above, without the prior written notice to and consent from the indemnifying
party, which consent shall not be unreasonably withheld. No indemnified or
indemnifying party shall settle any claim unless the settlement contains a full
release of liability with respect to the other party in respect of such action.
This section shall survive the termination of this Agreement.
SECTION 4
DURATION, TERMINATION, AND AMENDMENT
4.1 DURATION. This Agreement shall become effective on March 4, 1999,
and continue, unless terminated as provided in Section 4.2 or until the
termination of the Trust.
4.2 TERMINATION. Subject to Section 4.3, this Agreement may be
terminated at any time, without penalty, upon 60 days' prior written notice to
the other party by the Trust and the Sponsor, or by the Distributor.
4.3 ASSIGNMENT. This Agreement shall automatically terminate in the
event of its "assignment." As used in this Agreement, the term "assignment"
shall have the meaning such term has in the 1940 Act.
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4.4 AMENDMENT. This Agreement may be amended by mutual consent,
provided that no provision of this Agreement may be changed, waived, discharged
or terminated except by an instrument in writing signed by the party against
which enforcement of the change, waiver, discharge or termination is sought.
SECTION 5
NOTICE
5.1 NOTIFICATION OF PARTIES. Any notice or other communication required
or permitted to be given pursuant to this Agreement shall be deemed duly given
if addressed and delivered, mailed by registered mail, postage prepaid, or sent
by facsimile transmission (with confirmation of receipt) to (l) ALPS Mutual
Funds Services, Inc., at 000 00xx Xxxxxx, Xxxxx 0000, Xxxxxx, XX 00000,
Attention: Xxxxxx Xxxxxx, Chief Financial Officer, facsimile # (000) 000-0000,
(2) Nasdaq-Amex Investment Product Services, Inc., c/o The Nasdaq Stock Market,
Inc., 0000 X Xxxxxx, XX, Xxxxxxxxxx, XX 00000-0000, Attention: Xxxx X. Xxxxxx,
Executive Vice President, facsimile # (000) 000-0000, and (3) the Nasdaq-100
Trust, Series 1, c/o The Bank of New York, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, XX
00000, Attention: Xxxxxx X. Xxxxxxxx, facsimile # (000) 000-0000.
SECTION 6
MISCELLANEOUS
6.1 CHOICE OF LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
6.2 CAPTIONS. The captions in this Agreement are included for
convenience only and in no way define or limit any of the provisions hereof or
otherwise affect their construction.
6.3 SEVERABILITY. If any provisions of this Agreement shall be held or
made invalid, in whole or in part, then the other provisions of this Agreement
shall remain in force. Invalid provisions shall, in
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accordance with this Agreement's intent and purpose, be amended, to the extent
legally possible, by valid provisions in order to effectuate the intended
results of the invalid provisions.
6.4 INSURANCE. The Distributor will maintain at its expense an errors
and omissions insurance policy which covers services by the Distributor
hereunder.
6.5 FORCE MAJEURE. In the event a party hereto is unable to perform its
obligations under the terms of this Agreement because of acts of God, strikes,
equipment or transmission failure or damage reasonably beyond its control, or
other causes reasonably beyond its control, such party shall not be liable to
any other party for any damages resulting from such failure to perform or
otherwise from such causes.
6.6 COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be an original and all of which shall constitute but one and the
same instrument.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the day and year first written above.
NASDAQ-100 TRUST-sm-, SERIES 1
By: The Bank of New York, on behalf of the
Trust to be created, as Trustee of such Trust
By: /s/ XXXXXX X. XXXXXXXX
----------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
NASDAQ-AMEX INVESTMENT PRODUCT
SERVICES, INC.
By: /s/ XXXX X. XXXXXX
----------------------------------
Name: Xxxx X. Xxxxxx
Title: Executive Vice President
ALPS MUTUAL FUNDS SERVICES, INC.
By: /s/ XXXXXX XXXXX
----------------------------------
Name: Xxxxxx Xxxxx
Title: Executive Vice President
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