FIRST TRUST NASDAQ-100 EX-TECHNOLOGY SECTOR INDEX(SM) FUND
SUBLICENSE AGREEMENT
This agreement ("AGREEMENT"), is made by and between First Trust
Advisors L.P. ("LICENSEE"), whose principal offices are located at 0000
Xxxxxxxxxxx Xxxx, Xxxxx 000 xx Xxxxx, Xxxxxxxx 00000 and who is a
Licensee of The Nasdaq Stock Market, Inc. ("NASDAQ"), a Delaware
Corporation whose principal offices are located at Xxx Xxxxxxx Xxxxx, 000
Xxxxxxxx, Xxx Xxxx, XX 00000 and First Trust Nasdaq-100 Ex-Technology
Sector IndexSM Fund ("SUB-LICENSEE"), whose principal offices are located
at 0000 Xxxxxxxxxxx Xxxx, Xxxxx 000 xx Xxxxx, Xxxxxxxx 00000.
WHEREAS, Nasdaq possesses certain rights to Nasdaq(R),
Nasdaq-100(R), Nasdaq-100 Index(R), and Nasdaq-100 Ex-Tech Sector IndexSM
as trade names, trademarks or service marks ("MARKS");
WHEREAS, Nasdaq determines the components of the Nasdaq-100
Ex-Tech Sector IndexSM and the proprietary data contained therein
("INDEX") and such efforts involve the considerable expenditure of time,
effort, judgment and money; and
WHEREAS, Nasdaq calculates, maintains, and disseminates the Index; and
WHEREAS, Nasdaq and Licensee have previously entered into a
separate agreement concerning use of the Index and Marks in relating to
certain Derivative Products ("LICENSE AGREEMENT"); and
WHEREAS, Sub-Licensee is either: (1) an affiliate or subsidiary
under the control of Licensee which desires to use the Index as a
component of a pricing or settlement mechanism for the Derivative
Products; or (2) a necessary participant in a Derivative Product (e.g., a
corporation Issuing a corporate bond with the Licensee as underwriter and
utilizing the Index as a pricing component) Issued by Licensee or an
authorized Sub-Licensee affiliate or subsidiary under the control of
Licensee; and
WHEREAS, Licensee is legally authorized to issue shares of the
fund, or issue, enter into, write, sell, purchase and/or renew ("ISSUE",
"ISSUING", or "ISSUANCE") such Derivative Products, and each Derivative
Products will be Issued as legally required under applicable law;
NOW THEREFORE, in consideration of the premises and the mutual
covenants and conditions herein, Licensee and Sub-Licensee, intending to
be legally bound, agree as follows:
SECTION 1. SCOPE OF SUB-LICENSE. Sub-Licensee hereby acknowledges that it
has received, reviewed, and understands the License Agreement entered
into between Licensee and Nasdaq relating to use of the Index and Marks.
Except as noted herein, Sub-Licensee hereby agrees to obligate itself to
all the terms, conditions, and obligations of that License Agreement as
if Sub-Licensee were the Licensee. Sub-Licensee agrees that Nasdaq may
exercise any rights against Sub-Licensee (including, for example,
limitation of liability, indemnification, or audit rights) Nasdaq has
against the Licensee to the same extent as if Sub-Licensee were directly
contracting with Nasdaq. Sub-Licensee agrees it will not assert against
Nasdaq any defense, claim, or right Sub-Licensee may have against
Licensee, including those of set-off, abatement, counter-claim,
contribution, or indemnification.
SECTION 2. NO FURTHER SUB-LICENSE. All references in the License
Agreement to sub-licenses and sub-licensees, including any right of
sub-licensee to grant further sub-licenses or to permit further
sub-licensees are not applicable to this Sub-Licensee Agreement and are
as if deleted from the License Agreement.
SECTION 3. TERM. The Term of this Sub-License Agreement automatically
terminates, without Notice, if the Term of the License Agreement
terminates for any reason.
SECTION 4. GENERAL PROVISIONS. Sections from 21, through and including,
Section 27 of the License Agreement govern this Sub-License Agreement.
All terms and definitions used in this Sub-License Agreement, unless
otherwise indicated, have the same meanings and definitions as in the
License Agreement. LICENSEE HAS NO AUTHORITY TO WAIVE, RENEGOTIATE, OR
FORGIVE ANY PROVISION OF THE LICENSE AGREEMENT AS IT APPLIES TO
SUB-LICENSEE.
IN WITNESS WHEREOF, THE PARTIES HERETO HAVE CAUSED THIS SUB-LICENSE
AGREEMENT TO BE EXECUTED BY THEIR DULY AUTHORIZED OFFICERS.
FIRST TRUST ADVISORS L.P. ("LICENSEE")
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx, President
Date: February 7, 2007
FIRST TRUST NASDAQ-100 EX-TECHNOLOGY SECTOR INDEX(SM) FUND ("SUB-LICENSEE")
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx, President
Date: February 7, 2007
