STRUCTURING FEE AGREEMENT
Exhibit (h)(9)
November [•], 2011
Ameriprise Financial Services, Inc.
000 0xx Xxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
000 0xx Xxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Ladies and Gentlemen:
Reference is made to the Underwriting Agreement dated November [•], 2011 (the
“Underwriting Agreement”), by and among BlackRock Utility and Infrastructure Trust (the
“Trust”), BlackRock Advisors, LLC (the “Adviser”), BlackRock Financial Management,
Inc. and BlackRock Investment Management, LLC and each of the Underwriters named therein,
severally, with respect to the issue and sale of the Trust’s common shares of beneficial interest
(the “Common Shares”) (the “Offering”), as described therein. Capitalized terms
used herein and not otherwise defined shall have the meanings given to them in the Underwriting
Agreement.
1. Fee. In consideration of your services assisting the Adviser with respect to the
structure and design of the Trust and the organization of the Trust as well as services related to
the sale and distribution of the Trust’s Common Shares, the Adviser shall pay a fee to you in the
aggregate amount of $[•] (the “Fee”). The sum total of this Fee, plus the structuring
and/or incentive fees paid to certain other underwriters in connection with this offering, plus the
amount of the expense reimbursement of $[•] per common share payable by the Trust to the
underwriters pursuant to the Underwriting Agreement, plus underwriters’ counsel fees paid by the
Trust shall not exceed 9.0% of the total price of the Trust’s Common Shares issued by the Trust
pursuant to the prospectus dated November [•], 2011. The Fee shall be paid on or before December
[•], 2011. The Fee shall be paid by wire transfer to the order of Ameriprise Financial Services,
Inc.
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 without
the Trust’s common shares having been delivered and paid for. If this Agreement is terminated, the
Adviser shall reimburse Ameriprise only for its accountable out-of-pocket expenses in accordance
with FINRA Rule 5110(f)(2)(D).
3. Indemnification. The Adviser 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. Not an Investment Adviser; No Fiduciary Duty.
The Adviser acknowledges that you are not providing any advice hereunder as to the value of
securities or regarding the advisability of purchasing or selling any securities for the Trust’s
portfolio. No provision of this Agreement shall be considered as creating, nor shall any provision
create, any obligation on the part of you, and you are not agreeing hereby, to: (i) furnish any
advice or make any recommendations regarding the purchase or sale of portfolio securities; or (ii)
render any opinions, valuations or recommendations of any kind or to perform any such similar
services. The Adviser hereby acknowledges that your engagement under this Agreement is as an
independent contractor and not in any other capacity, including as a fiduciary. Furthermore, the
Adviser agrees that it is solely responsible for
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making its own judgments in connection with the
matters covered by this Agreement (irrespective of whether you have advised or are currently
advising the Adviser on related or other matters).
5. 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 advisers).
6. Assignment. This Agreement may not be assigned by any party without prior written
consent of the other party.
7. Amendment; Waiver. No provision of this Agreement may be amended or waived except
by an instrument in writing signed by the parties hereto.
8. Governing Law. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of New York.
9. 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 or electronic
transmission shall be effective as delivery of a manually executed counterpart hereof.
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This Agreement shall be effective as of the date first written above.
| BLACKROCK ADVISORS, LLC |
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| By: | ||||
| Name: | ||||
| Title: | ||||
| Agreed and Accepted: | ||||
| AMERIPRISE FINANCIAL SERVICES, INC. | ||||
By: |
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| Name: | ||||
| Title: | ||||
Indemnification Agreement
November [•], 2011
Ameriprise Financial Services, Inc.
000 0xx Xxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
000 0xx Xxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Ladies and Gentlemen:
In connection with the engagement of Ameriprise Financial Services, Inc. (“AFSI”) to
assist the undersigned, BlackRock Advisors, LLC (together with its affiliates and subsidiaries, the
“Company”) with respect to the matters set forth in the Structuring Fee Agreement dated
November [•], 2011 between the Company and the AFSI (the “Agreement”), in the event that
AFSI, any of its affiliates, each other person, if any, controlling AFSI or any of its affiliates,
their respective officers, current and former directors, employees and agents, or the successors or
assigns of any of the foregoing persons (AFSI and each such other person or entity being referred
to as an “Indemnified Party”) 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”) with respect to the
services performed pursuant to and in accordance with the Agreement, the Company agrees to
indemnify, defend and hold each Indemnified Party harmless to the fullest extent permitted by law,
from and against any losses, claims, damages, liabilities and expenses, including the fees and
expenses of counsel to the Indemnified Parties, with respect to the services performed pursuant to
and in accordance with 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 such losses, claims, damages, liabilities and expenses resulted
primarily from the gross negligence or willful misconduct of such Indemnified Party. In addition,
in the event that an Indemnified Party becomes involved in any capacity in any Proceeding with
respect to the services performed pursuant to and in accordance with the Agreement, the Company
will reimburse such Indemnified Party for its legal and other expenses (including the cost of any
investigation and preparation) as such expenses are incurred by such Indemnified Party in
connection therewith. Promptly as reasonably practicable after receipt by an Indemnified Party of
notice of the commencement of any Proceeding, such Indemnified Party will, if a claim in respect
thereof is to be made under this paragraph, notify the Company in writing of the commencement
thereof; but the failure so to notify the Company (i) will not relieve the Company from liability
under this paragraph to the extent it is not materially prejudiced as a result thereof and (ii) in
any event shall not relieve the Company from any liability which it may have otherwise than on
account of this Indemnification Agreement. Counsel to the Indemnified Parties shall be selected by
the Company. An indemnifying party may participate at its own expense in the defense of any such
action; provided, however, that counsel to the indemnifying party shall not (except with the
consent of the Indemnified Parties, which shall not be unreasonably withheld) also be counsel to
the Indemnified Party. No indemnifying party shall, without the prior written consent of the
Indemnified Parties, which shall not be unreasonably withheld, settle or compromise or consent to
the entry of any judgment with respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought hereunder (whether or not the Indemnified Parties
are actual or potential parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each Indemnified Party from all liability arising out of such
litigation, investigation, proceeding or claim and (ii) does not include a statement as to or an
admission of fault, culpability or a failure to act by or on behalf of any Indemnified Party.
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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, on the one hand, and the Indemnified Parties, 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, 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, as the case may be, as a
result of or in connection with the transaction (whether or not consummated) for which AFSI has
been retained to perform services bears to the fees paid to AFSI under the Agreement; provided,
that in no event shall the Company contribute less than the amount necessary to assure that the
Indemnified Parties are not liable for losses, claims, damages, liabilities and expenses in excess
of the amount of fees actually received by AFSI 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 AFSI, on the other hand.
Notwithstanding the provisions of this paragraph, an Indemnified Party shall not be entitled to
contribution from the Company if it is determined that such Indemnified Party was guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act of 1933, as
amended) and the Company was not guilty of such fraudulent misrepresentation. 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 no Indemnified Party shall have any liability to the Company or any
person asserting claims on behalf of or in right of the Company with respect to the services
performed pursuant to and in accordance with 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 AFSI in performing the services that are the subject of the Agreement.
Nothing in this Indemnification Agreement shall be read or construed to limit any liability or
obligation of any party arising under or in connection with the Underwriting Agreement.
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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 THE INDEMNIFIED PARTIES 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 AFSI OR ANY INDEMNIFIED PARTY. EACH INDEMNIFIED
PARTY 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. 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 ANY OTHER COURTS TO THE JURISDICTION OF WHICH THE COMPANY IS OR MAY
BE SUBJECT, BY SUIT UPON SUCH JUDGMENT.
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The foregoing Indemnification Agreement shall remain in full force and effect
notwithstanding any termination of AFSI’s engagement under the Agreement. 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 |
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| By: | ||||
| Name: | ||||
| Title: | ||||
| Agreed and Accepted: | ||||
| AMERIPRISE FINANCIAL SERVICES, INC. | ||||
By: |
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| Name: | ||||
| Title: | ||||
[Indemnification Agreement]
