FIRST TRUST NASDAQ(R) CLEAN EDGE(R) U.S. LIQUID SERIES INDEX FUND
SUBLICENSE AGREEMENT
THIS AGREEMENT, is made by and between First Trust Advisors L.P.
("LICENSEE"), whose principal offices are located at 0000 Xxxxxxxxxxx
Xxxx, Xxxxx 000, Xxxxx, Xxxxxxxx 00000 (Licensee is a licensee of The
Nasdaq Stock Market, Inc. ("NASDAQ"), whose principal offices are located
at Xxx Xxxxxxx Xxxxx, 000 Xxxxxxxx, Xxx Xxxx, XX 00000 and Clean Edge,
Inc., whose principal offices are located at 0 Xxxxxxxx Xxxxx, Xxxxxxx,
XX 94610), and First Trust NASDAQ(R) Clean Edge(R) U.S. Liquid Series
Index Fund, a series of the First Trust Exchange-Traded Fund
("SUB-LICENSEE"), whose principal offices are located at 0000 Xxxxxxxxxxx
Xxxx, Xxxxx 000, Xxxxx, Xxxxxxxx 00000.
WHEREAS, Nasdaq possesses certain rights to the NASDAQ(R) name
and other Nasdaq trade names, trademarks and service marks (the "NASDAQ
MARKS"); and
WHEREAS, Clean Edge possesses certain rights to the Clean
Edge(R) name and other Clean Edge trade names, trademarks and service
marks (the "CLEAN EDGE MARKS"); and
WHEREAS, Nasdaq and Clean Edge jointly own the NASDAQ(R) Clean
Edge(R) U.S. Liquid Series Index ("INDEX") and each owns a different
component of the Index name but have cross-licensed to one another the
rights in their respective marks in connection with the Index name
(collectively the "MARKS"); and
WHEREAS, Nasdaq and Clean Edge have jointly developed the
eligibility and selection criteria and certain rules for the Index and
jointly, as part of a committee, determine the components of the Index;
and
WHEREAS, Nasdaq calculates, administers and disseminates the Index; and
WHEREAS, Nasdaq possesses certain data and certain information
in relation to Index components (ticker symbol, price, total shares
outstanding, market value, and corporate action information
(collectively, the "Data")) necessary for the compilation of the Index;
and
WHEREAS, Licensee desires to use and Nasdaq and Clean Edge
desire to license the right to use the Index as a benchmark or component
of a pricing or settlement mechanism for the derivative product(s) noted
in Attachment I attached hereto ("DERIVATIVE PRODUCTS") to be issued by
Licensee, and to reference the Index and related Marks solely in
materials relating or referring to the Derivative Products; and
WHEREAS, Licensee is legally authorized to issue, enter into,
write, sell, redeem, purchase and/or renew ("ISSUE", "ISSUING", or
"ISSUANCE") the Derivative Products as legally required under applicable
law; and
WHEREAS, Nasdaq, Clean Edge 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;
NOW THEREFORE, in consideration of the premises and the mutual
covenants and conditions herein contained, 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, Nasdaq and Clean Edge 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 and/or Clean Edge may exercise any rights against Sub-Licensee
(including, for example, limitation of liability, indemnification, or
audit rights) that Nasdaq and Clean Edge have against the Licensee to the
same extent as if Sub-Licensee were directly contracting with Nasdaq and
Clean Edge. Sub-Licensee agrees it will not assert against Nasdaq and/or
Clean Edge 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 22, through and including,
Section 28 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
----------------------------------------
Name: Xxxxx X. Xxxxx, President
Date: February 7, 2007
FIRST TRUST NASDAQ(R) CLEAN EDGE(R) U.S. LIQUID SERIES INDEX FUND
("SUB-LICENSEE")
By: /s/ Xxxxx X. Xxxxx
----------------------------------------
Name: Xxxxx X. Xxxxx, President
Date: February 7, 2007
