Exhibit (h.39)
iSHARES TRUST SUBLICENSE AGREEMENT
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This Sublicense Agreement (the "Agreement") is made as of December 8, 2009,
by and between BlackRock Institutional Trust Company, N.A./1/, a national
banking association organized under the laws of the United States ("BTC") and
iShares Trust, a statutory trust established under the laws of the State of
Delaware.
RECITALS
WHEREAS, pursuant to that certain License Agreement dated July 9, 2009 (the
"License Agreement"), between Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated ("Xxxxxxx Xxxxx") and BTC, BTC obtained a license to use in
connection with "BGI Funds" (as that term is defined in the License Agreement)
certain securities indexes owned and managed by Xxxxxxx Xxxxx (each, an
"Index"), along with associated marks (the "Marks"); and
WHEREAS, BTC has the right pursuant to the License Agreement to sublicense
its rights thereunder to iShares Trust; and
WHEREAS, iShares Trust wishes to use the Indexes and Marks in connection
with the establishment of certain new exchange traded funds (each, an "ETF"),
each based on an Index, in connection with the identification and marketing of
the ETFs and in connection with making disclosures about the ETFs under
applicable laws, rules and regulations; and
WHEREAS, BTC wishes to grant a sublicense to iShares Trust for the use of
the Indexes and Marks;
NOW THEREFORE, the parties agree as follows:
1. Grant of Sublicense. Subject to the terms and conditions of this
Agreement, BTC hereby grants to iShares Trust a sublicense to use the Indexes
(and associated data, information, and Marks) listed on Exhibit A in the manner
set forth in, and subject to the terms of, the License Agreement.
2. Performance of Obligations Under the License. iShares Trust will be
responsible for performing all of BTC's executory obligations under the License
Agreement (other than the payment of license fees), as such obligations relate
to use of the Indexes and Marks in connection with the formation and operation
of the ETFs.
3. Fees. iShares Trust shall have no obligation to pay any sublicense fees
to BTC or Xxxxxxx Xxxxx under this sublicense agreement.
4. Termination. This Agreement shall terminate if (a) the License Agreement
terminates, or (b) BTC or a BTC Affiliate ceases to exercise investment
discretion over the iShares Trust in its capacity as manager, investment
adviser, trustee, or other comparable capacity. BTC shall notify iShares Trust
as soon as reasonably practicable of the occurrence of an event described in
(a) above. Upon termination of this Agreement, iShares Trust's right to use the
Indexes and the Marks shall terminate immediately.
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/1/ Formerly known as Barclays Global Investors, N.A. ("BGI")
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5. Indemnification. iShares Trust shall indemnify and hold harmless BTC, its
officers, employees, agents, successors, and assigns against all judgments,
damages, costs or losses of any kind (including reasonable attorneys' and
experts' fees) resulting from any claim, action or proceeding (collectively
"claims") that arises out of or relates to (a) the creation, marketing,
advertising, selling, and operation of the ETFs or interests therein, or
(b) any breach by BTC of its covenants, representations, and warranties under
the License Agreement caused by the actions or inactions of iShares Trust, or
(c) errors in the calculation of any Index, or delays in the dissemination of
any Index, or (d) any violation of applicable laws (including, but not limited
to, banking, commodities, and securities laws) arising out of the offer, sale,
operation, or trading of the iShares Trust or interests therein, except to the
extent such claims result from the negligence, gross negligence or willful
misconduct of BTC or its affiliates. The provisions of this section shall
survive termination of this Agreement.
6. Assignment. iShares Trust will not make, or purport to make, any
assignment or other transfer of this Agreement. BTC may assign its rights and
obligations under this Agreement effective upon the giving of written notice to
iShares Trust.
7. Amendment. No provision of this Agreement may be waived, altered, or
amended except by written agreement of the parties.
8. Entire Agreement. This Agreement constitutes the entire agreement between
the parties hereto with respect to the subject matter hereof.
9. Construction. Headings used in this Agreement are for convenience only,
and shall not affect the construction or interpretation of any of its
provisions. Each of the provisions of this Agreement is severable, and the
invalidity or inapplicability of one or more provisions, in whole or in part,
shall not affect any other provision. To the extent not preempted by federal
law, this Agreement shall be construed and interpreted under the laws of the
State of California.
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10. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but such
counterparts together shall constitute only one instrument.
IN WITNESS WHEREOF the parties have caused this Agreement to be executed as
of the date first above written, with intent to be bound hereby.
BLACKROCK INSTITUTIONAL TRUST iSHARES TRUST
COMPANY, N.A.
By: /s/ Xxxxx Xxxxx By: /s/ Xxxxxxx X. Xxxxxxx
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Authorized Signature Authorized Signature
Name: Xxxxx Xxxxx Name: Xxxxxxx X. Xxxxxxx
Title: Managing Director Title: Secretary, iShares Trust
By: /s/ Xxxxxx Xxx
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Authorized Signature
Name: Xxxxxx Xxx
Title: Vice President
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Exhibit A
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BofA Xxxxxxx Xxxxx 10+ Year US Corporate & Yankees Index
BofA Xxxxxxx Xxxxx 10+ Year US Corporate & Government Index
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