NASDAQ OMX(R) ABA Community Bank Index(SM) Related Derivative Products
Sub-License Agreement
THIS AGREEMENT, is made by and between First Trust Advisors L.P. ("Licensee"),
whose principal offices are located at 000 Xxxx Xxxxxxx Xxxxx, Xxxxx 000 in
Xxxxxxx, Xxxxxxxx 00000 (Licensee is a licensee of The NASDAQ OMX Group, Inc.
("NASDAQ OMX"), whose principal offices are located at Xxx Xxxxxxx Xxxxx, 000
Xxxxxxxx, Xxx Xxxx, XX 00000 and American Bankers Association ("ABA"), whose
principal offices are located at 000 Xxxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx,
XX 20006), and First Trust NASDAQ(R) ABA Community Bank Index Fund
("Sub-Licensee"), whose principal offices are located at 000 Xxxx Xxxxxxx Xxxxx,
Xxxxx 000 in Xxxxxxx, Xxxxxxxx 00000.
WHEREAS, NASDAQ OMX possesses certain rights to the NASDAQ(R), OMX(R),
NASDAQ OMX(R) names, registered trademarks, and other NASDAQ OMX trade names and
service marks (the "NASDAQ OMX Marks"); and
WHEREAS, ABA possesses certain rights to the American Bankers
Association(R) and other ABA trade names, trademarks and service marks
(collectively, the "ABA Marks"); and
WHEREAS, NASDAQ OMX and ABA jointly own the NASDAQ OMX(R) ABA Community
Bank Index(SM) 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 OMX and ABA have jointly developed the eligibility and
selection criteria and certain rules for the Index and jointly determine the
components of the Index; and
WHEREAS, NASDAQ OMX calculates, administers and disseminates the Index;
and
WHEREAS, NASDAQ OMX 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 OMX and ABA 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 OMX, ABA 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
{00013209.DOC; 2}
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 OMX and ABA 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 OMX and/or ABA may exercise any
rights against Sub-Licensee (including, for example, limitation of liability,
indemnification, or audit rights) that NASDAQ OMX and ABA have against the
Licensee to the same extent as if Sub-Licensee were directly contracting with
NASDAQ OMX and ABA. Sub-Licensee agrees it will not assert against NASDAQ OMX
and/or ABA 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.
Section 5. REIMBURSEMENT. Sub-licensee agrees to reimburse Licensee for all
License Fees paid by Licensee to Licensor under the License Agreement.
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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Xxxxx X. Xxxxx, President
Date: June 30, 2009
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First Trust NASDAQ(R) ABA Community Bank Index Fund ("Sub-Licensee")
By: /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx, President
Date: June 30, 2009
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