STRUCTURING FEE AGREEMENT
Exhibit (h)(7)
November [•], 2011
UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
This agreement is between BlackRock Advisors, LLC (the “Company”) and UBS Securities LLC
(“UBS”) with respect to the BlackRock Utility and Infrastructure Trust (the “Trust”).
1. Fee. In consideration of certain financial advisory services that UBS has provided to the
Company in assisting the Company in structuring and organizing the Trust, the Company shall pay a
fee to UBS in the aggregate amount of $[•] (the “Fee”); provided that the sum total of
the fee hereunder shall not exceed [•]% of the total price to the public of the Trust’s
common shares sold by the Trust pursuant to the Prospectus dated [•], 2011. The Fee
shall be paid on or before December [•], 2011 or as otherwise agreed to by the parties.
2. Term. This Agreement shall terminate upon the payment of the entire amount of the Fee, as
specified in Section 1 hereof or upon the termination of the Underwriting Agreement dated November
[•], 2011, by and among the Trust, the Company, BlackRock Financial Management, Inc. and
BlackRock Investment Management, LLC and each of the Underwriters named therein without the common
shares of the Trust having been delivered and paid for. Notwithstanding the foregoing, Sections 4,
5, 8, 9 and 10 of this Agreement and the Indemnification Agreement attached hereto shall survive
the termination of this Agreement. UBS confirms that should the offering be terminated, UBS will
only be reimbursed for reasonable and actual out-of-pocket expenses in accordance with FINRA Rule
5110(f)(2)(D).
3. Indemnification. The Company agrees to the indemnification and other agreements set forth
in the Indemnification Agreement attached hereto, the provisions of which are incorporated herein
by reference and shall survive the termination, expiration or supersession of this Agreement.
4. Confidential Advice. Except to the extent legally required (after consultation with, and
approval as to form and substance by, UBS and its counsel), none of (i) the name of UBS, (ii) any
advice rendered by UBS to the Company, or (iii) the terms of this Agreement or any communication
from UBS in connection with the services performed by UBS pursuant to this Agreement will be quoted
or referred to orally or in writing, or in the case of (ii) and (iii), reproduced or disseminated,
by the Company or any of its affiliates or any of their agents, without UBS’ prior written consent.
- 1 -
5. Information. The Company recognizes and confirms that UBS (a) has used and relied
primarily on the information provided by the Company and on information available from generally
recognized public sources in performing the services contemplated by this Agreement without having
assumed responsibility for independently verifying the same, (b) has not assumed responsibility for
the accuracy, completeness or reasonableness of such information and (c) has not made an appraisal
of any assets or liabilities (contingent or otherwise) of the Trust. The information provided by
the Company, when delivered, was true and correct in all material respects and did not contain any
material misstatement of fact or omit to state any material fact necessary to make the statements
contained therein not misleading. The Company will promptly notify UBS if it learns of any material
inaccuracy or misstatement in, or material omission from, any information provided by the Company
to UBS pursuant to this Section 5.
6. Not an Investment Adviser. The Company acknowledges that UBS has not provided any advice
hereunder as to the value of securities or regarding the advisability of purchasing or selling any
securities for the Trust’s portfolio. The Company acknowledges and agrees that UBS has been
retained to act solely as an adviser to the Company, and the Company’s engagement of UBS is not
intended to confer rights upon any person (including the Trust or any shareholders, employees or
creditors of the Company or the Trust) not a party hereto as against UBS or its affiliates, or
their respective directors, officers, employees or agents, successors, or assigns. UBS has acted as
an independent contractor under this Agreement, and not in any other capacity including as a
fiduciary, and any duties arising out of its engagement shall be owed solely to the Company.
7. Not Exclusive. Nothing herein shall be construed as prohibiting you or your affiliates
from acting as an underwriter or financial adviser or in any other capacity for any other persons
(including other registered investment companies or other investment managers).
8. Amendment; Waiver. No provision of this Agreement may be amended or waived except by an
instrument in writing signed by the parties hereto.
9. Governing Law. This Agreement and any claim, counterclaim or dispute of any kind or nature
whatsoever arising out of or in any way relating to this Agreement (“Claim”), directly or
indirectly, shall be governed by and construed in accordance with the laws of the State of New
York. No Claim may be commenced, prosecuted or continued in any court other than the courts of the
State of New York located in the City and County of New York or in the United States District Court
for the Southern District of New York, which courts shall have exclusive jurisdiction over the
adjudication of such matters, and the Company and UBS consent to the jurisdiction of such courts
and personal service with respect thereto. EACH OF UBS AND THE COMPANY WAIVES ALL RIGHT TO TRIAL BY
JURY IN ANY PROCEEDING OR CLAIM (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR
IN ANY WAY RELATING TO THIS AGREEMENT.
10. Successors and Assigns. This Agreement shall be binding upon the Company and UBS and their
respective successors and assigns and any successor or assign of any substantial portion of the
Company’s or UBS’ respective businesses and/or assets.
11. Counterparts. This Agreement may be executed in any number of counterparts, each of which
shall be an original, and all of which, when taken together, shall constitute one agreement.
Delivery of an executed signature page of this Agreement by facsimile transmission shall be
effective as delivery of a manually executed counterpart hereof.
This Agreement shall be effective as of the date first written above.
BLACKROCK ADVISORS, LLC |
||||
By: | ||||
Name: | ||||
Title: | ||||
Agreed and Accepted: | ||||
UBS SECURITIES LLC | ||||
By: |
||||
Title: | ||||
By: |
||||
Title: |
Indemnification Agreement
November [•], 2011
UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
In connection with the engagement of UBS Securities LLC (“UBS”) to advise and assist the
undersigned, (together with its affiliates and subsidiaries, the “Company”) with the matters set
forth in the Structuring Fee Agreement dated November [•], 2011 between the Company and
UBS (the “Agreement”), in the event that UBS becomes involved in any capacity in any claim, suit,
action, proceeding, investigation or inquiry (including, without limitation, any shareholder or
derivative action or arbitration proceeding) (collectively, a “Proceeding”) in connection with any
matter relating to or arising out of the Agreement, including, without limitation, related services
and activities prior to the date of the Agreement, the Company agrees to indemnify, defend and hold
UBS harmless to the fullest extent permitted by law, from and against any losses, claims, damages,
liabilities and expenses in connection with any such Proceeding, except to the extent that it shall
be determined by a court of competent jurisdiction in a judgment that has become final in that it
is no longer subject to appeal or other review, that such losses, claims, damages, liabilities and
expenses resulted primarily from the gross negligence or willful misconduct of UBS. In addition,
in the event that UBS becomes involved in any capacity in any such Proceeding, the Company will
reimburse UBS for its legal and other expenses (including the cost of any investigation and
preparation) as such expenses are incurred by UBS in connection therewith.
If such indemnification were not to be available for any reason, the Company agrees to
contribute to the losses, claims, damages, liabilities and expenses involved (i) in the proportion
appropriate to reflect the relative benefits received or sought to be received by the Company and
its stockholders and affiliates and other constituencies, on the one hand, and UBS, on the other
hand, in the matters contemplated by the Agreement or (ii) if (but only if and to the extent) the
allocation provided for in clause (i) is for any reason held unenforceable, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause (i) but also the
relative fault of the Company and its stockholders and affiliates and other constituencies, on the
one hand, and the party entitled to contribution, on the other hand, as well as any other relevant
equitable considerations. The Company agrees that for the purposes of this paragraph the relative
benefits received, or sought to be received, by the Company and its stockholders and affiliates, on
the one hand, and the party entitled to contribution, on the other hand, of a transaction as
contemplated shall be deemed to be in the same proportion that the total value received or paid or
contemplated to be received or paid by the Company or its stockholders or affiliates and other
constituencies, as the case may be, as a result of or in connection with the transaction (whether
or not consummated) for which UBS has been retained to perform services bears to the fees paid to
UBS under the Agreement; provided, that in no event shall the Company contribute less than the
amount necessary to assure that UBS is not liable for losses, claims, damages, liabilities and
- 5 -
expenses in excess of the amount of fees actually received by UBS pursuant to the Agreement.
Relative fault shall be determined by reference to, among other things, whether any alleged untrue
statement or omission or any other alleged conduct relates to information provided by the Company
or other conduct by the Company (or its employees or other agents), on the one hand, or by UBS, on
the other hand. The Company will not settle any Proceeding in respect of which indemnity may be
sought hereunder, whether or not UBS is an actual or potential party to such Proceeding, without
UBS’ prior written consent. For purposes of this Indemnification Agreement, UBS shall include UBS
Securities LLC, any of its affiliates, each other person, if any, controlling UBS Securities LLC or
any of its affiliates, their respective officers, current and former directors, employees and
agents, and the successors and assigns of all of the foregoing persons. The foregoing indemnity
and contribution agreement shall be in addition to any rights that any indemnified party may have
at common law or otherwise.
The Company agrees that neither UBS nor any of its affiliates, directors, agents, employees or
controlling persons shall have any liability to the Company or any person asserting claims on
behalf of or in right of the Company in connection with or as a result of either UBS’ engagement
under the Agreement or any matter referred to in the Agreement, including, without limitation,
related services and activities prior to the date of the Agreement, except to the extent that it
shall be determined by a court of competent jurisdiction in a judgment that has become final in
that it is no longer subject to appeal or other review that any losses, claims, damages,
liabilities or expenses incurred by the Company resulted primarily from the gross negligence or
willful misconduct of UBS in performing the services that are the subject of the Agreement.
THIS INDEMNIFICATION AGREEMENT AND ANY CLAIM, COUNTERCLAIM OR DISPUTE OF ANY KIND OR NATURE
WHATSOEVER WITH RESPECT TO THE SERVICES PERFORMED PURSUANT TO AND IN ACCORDANCE WITH THE AGREEMENT
(“CLAIM”), DIRECTLY OR INDIRECTLY, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK. EXCEPT AS SET FORTH BELOW, NO CLAIM MAY BE COMMENCED, PROSECUTED OR
CONTINUED IN ANY COURT OTHER THAN THE COURTS OF THE STATE OF NEW YORK LOCATED IN THE CITY AND
COUNTY OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK,
WHICH COURTS SHALL HAVE EXCLUSIVE JURISDICTION OVER THE ADJUDICATION OF SUCH MATTERS, AND THE
COMPANY AND UBS CONSENT TO THE JURISDICTION OF SUCH COURTS AND PERSONAL SERVICE WITH RESPECT
THERETO. THE COMPANY HEREBY CONSENTS TO PERSONAL JURISDICTION, SERVICE AND VENUE IN ANY COURT IN
WHICH ANY CLAIM ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT IS BROUGHT BY ANY THIRD
PARTY AGAINST UBS OR ANY INDEMNIFIED PARTY. THE COMPANY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY
PROCEEDING OR CLAIM (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR IN ANY WAY
RELATING TO THIS AGREEMENT. EACH OF UBS AND THE COMPANY AGREES THAT A FINAL JUDGMENT IN ANY
PROCEEDING OR CLAIM ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT BROUGHT IN ANY SUCH
COURT SHALL BE CONCLUSIVE AND BINDING UPON THE COMPANY AND MAY BE ENFORCED IN
- 6 -
ANY OTHER COURTS TO THE JURISDICTION OF WHICH THE COMPANY IS OR MAY BE SUBJECT, BY SUIT UPON
SUCH JUDGMENT.
- 7 -
The foregoing Indemnification Agreement shall remain in full force and effect notwithstanding
any termination of UBS’ engagement. This Indemnification Agreement shall be binding upon the
Company and UBS and their respective successors and assigns and any successor or assign of any
substantial portion of the Company’s or UBS’ respective businesses and/or assets. This
Indemnification Agreement may be executed in two or more counterparts, each of which shall be
deemed an original, but all of which shall constitute one and the same agreement.
Very truly yours, BLACKROCK ADVISORS, LLC |
||||
By: | ||||
Name: | ||||
Title: | ||||
Agreed and Accepted: | ||||
UBS SECURITIES LLC | ||||
By: |
||||
Title: | ||||
By: |
||||
Title: |
[Indemnification Agreement]