FORM OF
BLACKROCK 2012 TERM TRUST
UNDERWRITING AGREEMENT
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Agreement dated as of _____ __, 2000 between THE BLACKROCK
2012 TERM TRUST, a Delaware business trust (the "Company"), and BLACKROCK
DISTRIBUTORS, INC., a Delaware corporation (the "Underwriter").
WHEREAS, the Company is a closed-end diversified management
investment company and is so registered under the Investment Company Act of
1940, as amended (the "1940 Act"); and
WHEREAS, the Company desires to retain the Underwriter as
its underwriter to provide for the sale of its shares ("Shares"), and the
Underwriter is willing to render such services;
NOW, THEREFORE, in consideration of the premises and mutual
covenants set forth and intending to be legally bound, the parties hereto
agree as follows:
1. APPOINTMENT OF UNDERWRITER. The Company hereby
appoints the Underwriter as underwriter of its shares on the terms and for
the period set forth in this Agreement. The Underwriter hereby accepts such
appointment and agrees to render the services and duties set forth in
Section 3 below.
2. DELIVERY OF DOCUMENTS. The Company has furnished or
will furnish the Underwriter with copies, properly certified or authenticated,
of each of the following documents and will deliver to it all future amendments
and supplements, if any:
a. The Certificate of Trust of the Company, filed
with the Secretary of State of the State of Delaware on October 20, 2000 (the
"Certificate of Trust");
b. The Company's Amended and Restated Agreement
and Declaration of Trust dated November 14, 2000 (the "Declaration of Trust");
c. The Company's By-Laws (the "By-Laws");
d. Resolutions of the Company's Board of Trustees
authorizing the execution and delivery of this Agreement;
e. The Company's Registration Statement under the
Securities Act of 1933, as amended (the "1933 Act"), and the 1940 Act on
Form N-2 as filed with the Securities and Exchange Commission (the
"Commission") on October 24, 2000, relating to the Shares and any
Pre-Effective Amendments thereto (the "Registration Statement");
f. The Company's Prospectus and Statement of
Additional Information and all amendments and supplements thereto (such
Prospectus and Statement of Additional Information and supplements thereto,
as presently in effect and as from time to time amended and supplemented,
are herein called the "Prospectus").
3. SERVICES AND DUTIES. The Underwriter enters into the
following covenants with respect to its services and duties:
a. The Underwriter agrees to sell, as agent, from
time to time during the term of this Agreement, shares upon the terms and at
the current offering price as described in the Prospectus. The Underwriter will
act only in its own behalf as principal in making agreements with selected
dealers. No broker- dealer or other person who enters into a selling or
servicing agreement with the Underwriter shall be authorized to act as
agent for the Company in connection with the offering or sale of shares to
the public or otherwise. The Underwriter shall use its best efforts to sell
Shares but shall not be obligated to sell any certain number of shares.
b. The Underwriter shall prepare or review, provide
advice with respect to, and file with the federal and state agencies or
other organizations as required by federal, state, or other applicable laws
and regulations, all sales literature (advertisements, brochures and
shareholder communications) for the Company.
c. In performing all of its services and duties as
Underwriter, the Underwriter will act in conformity with the Certificate of
Trust, Declaration of Trust, By-laws, Registration Statement and
resolutions and other instructions of the Company's Board of Trustees and
will comply with the requirements of the 1933 Act, the Securities Exchange
Act of 1934, as amended, the 1940 Act and all other applicable federal or
state law.
d. The Company shall have the right to suspend the
sale of shares at any time in response to conditions in the securities
markets or otherwise, and to suspend periodic tender offers at any time
permitted by the 1940 Act or the rules and regulations of the Commission
("Rules").
e. The Company reserves the right to reject any
order for shares but will not do so without reasonable cause.
4. NO SECONDARY MARKET. It is understood that Shares of the
Fund will not be repurchased by either the Fund or us, and that no
secondary market for the Fund shares exists currently, or is expected to
develop. While the Board of Trustees of the Fund intends to consider
tendering for all or a portion of the Fund's shares on a quarterly basis,
there is no assurance that the Fund will tender for shares at any time or,
following such a tender offer, that shares so tendered will be repurchased
by the Fund. Accordingly investment in the Fund's shares would be
considered illiquid. ANY REPRESENTATION AS TO A TENDER OFFER BY THE FUND,
OTHER THAN THAT WHICH IS SET FORTH IN THE FUND'S THEN CURRENT PROSPECTUS,
IS EXPRESSLY PROHIBITED.
5. EXPENSES. The Company will pay all expenses incident to
the performance of its obligations under this Agreement, including (i) the
preparation, printing and filing of the Registration Statement (including
financial statements and exhibits) as originally filed and of each
amendment thereto, (ii) the preparation, printing and delivery to the
Underwriter of this Agreement and such other documents as may be required
in connection with the offering, purchase, sale, issuance or delivery of
the Shares, (iii) the fees and disbursements of the Company's counsel,
accountants and other advisors and (iv) the printing and delivery to the
Underwriter of copies of each preliminary prospectus and of the Prospectus
and any amendments or supplements thereto.
6. PAYMENTS OF SALES CHARGES. Any sales charges payable in
connection with purchases of Shares shall be payable to the Underwriter or its
assignees, all in accordance with the Company's Prospectus.
7. LIMITATIONS OF LIABILITY. The Underwriter shall not be
liable for any error of judgment or mistake of law or for any loss suffered
by the Company in connection with the matters to which this Agreement
relates, except a loss resulting from willful misfeasance, bad faith or
gross negligence on its part in the performance of its duties or from
reckless disregard by it of its obligations and duties under this
Agreement.
8. PROPRIETARY AND CONFIDENTIAL INFORMATION. The Underwriter
agrees on behalf of itself and its employees to treat confidentially and as
proprietary information of the Company all records and other information
relative to the Company and prior, present or potential shareholders, and
not to use such records and information for any purpose other than
performance of its responsibilities and duties hereunder, except after
prior notification to and approval in writing by the Company, which
approval shall not be unreasonably withheld and may not be withheld where
the Underwriter may be exposed to civil or criminal contempt proceedings
for failure to comply, when requested to divulge such information by duly
constituted authorities, or when so requested by the Company.
9. INDEMNIFICATION.
a. The Company represents and warrants to the
Underwriter that the Registration Statement contains, and that the
Prospectus at all times will contain, all statements required by the 1933
Act and the Rules of the Commission, will in all material respects conform
to the applicable requirements of the 1933 Act and the Rules and will not
include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading, except that no representation or warranty in this
Section 8 shall apply to statements or omissions made in reliance upon and
in conformity with written information furnished to the Company by or on
behalf of the Underwriter expressly for use in the Registration Statement
or Prospectus.
b. The Company agrees that it will indemnify, defend
and hold harmless the Underwriter, its several officers, and directors, and
any person who controls the Underwriter within the meaning of Section 15 of
the 1933 Act, from and against any losses, claims, damages or liabilities,
joint or several, to which the Underwriter, its several officers, and
directors, and any person who controls the Underwriter within the meaning
of Section 15 of the 1933 Act, may become subject under the 1933 Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions or proceedings in respect thereof) arise out of, or are based upon
any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, the Prospectus or in any
application or other document executed by or on behalf of the Company or
are based upon information furnished by or on behalf of the Company filed
in any state in order to qualify the shares under the securities or blue
sky laws thereof ("Blue Sky Application") or arise out of, or are
based upon, the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse the Underwriter, its several
officers, and directors, and any person who controls the Underwriter within
the meaning of Section 15 of the 1933 Act, for any legal or other expenses
reasonably incurred by the Underwriter, its several officers, and
directors, and any person who controls the Underwriter within the meaning
of Section 15 of the 1933 Act, in investigating, defending or preparing to
defend any such action, proceeding or claim; provided, however, that the
Company shall not be liable in any case to the extent that such loss,
claim, damage or liability arises out of, or is based upon, any untrue
statement, alleged untrue statement, or omission or alleged omission made
in the Registration Statement, the Prospectus or any Blue Sky application
in reliance upon and in conformity with written information furnished to
the Company by or on behalf of the Underwriter specifically for inclusion
therein or arising out of the failure of the Underwriter to deliver a
current Prospectus.
c. The Company shall not indemnify any person
pursuant to this Section 9 unless the court or other body before which the
proceeding was brought has rendered a final decision on the merits that
such person was not liable by reason of his or her willful misfeasance, bad
faith or gross negligence in the performance of his or her duties, or his
or her reckless disregard of any obligations and duties, under this
Agreement ("disabling conduct") or, in the absence of such a decision, a
reasonable determination (based upon a review of the facts) that such
person was not liable by reason of disabling conduct has been made by the
vote of a majority of a quorum of the trustees of the Company who are
neither "interested persons" (as defined in the 0000 Xxx) nor parties to
the proceeding, or by independent legal counsel in a written opinion.
d. The Underwriter will indemnify and hold harmless
the Company and its several officers and trustees, and any person who
controls the Company within the meaning of Section 15 of the 1933 Act, from
and against any losses, claims, damages or liabilities, joint or several,
to which any of them may become subject under the 1933 Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) arise out of, or are based upon, any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement, the Prospectus or any Blue Sky application, or
arise out of, or are based upon, the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances in which they were
made, not misleading, which statement or omission was made in reliance upon
and in conformity with information furnished in writing to the Company or
any of its several officers and trustees by or on behalf of the Underwriter
specifically for inclusion therein, and will reimburse the Company and its
several officers, trustees and such controlling persons for any legal or
other expenses reasonably incurred by any of them in investigating,
defending or preparing to defend any such action, proceeding or claim.
10. DURATION AND TERMINATION. This Agreement shall become
effective upon its execution as of the date first written above and, unless
sooner terminated as provided herein, shall continue for an initial two
year term. Thereafter, if not terminated, this Agreement shall continue
automatically for successive terms of one year, provided that such
continuance is specifically approved at least annually (a) by a vote of a
majority of those members of the Company's Board of Trustees who are not
parties to this Agreement or "interested persons" of any such party, cast
in person at a meeting called for the purpose of voting on such approval,
and (b) by the Company's Board of Trustees or by vote of a "majority of the
outstanding voting securities" of the Company; provided, however, that this
Agreement may be terminated by the Company at any time, without the payment
of any penalty, by vote of a majority of the entire Board of Trustees or by
a vote of a "majority of the outstanding voting securities" of the Company
on 60-days' written notice to the Underwriter, or by the Underwriter at any
time, without the payment of any penalty, on 90-days' written notice to the
Company. This Agreement will automatically and immediately terminate in the
event of its "assignment." (As used in this Agreement, the terms "majority
of the outstanding voting securities," "interested person" and "assignment"
shall have the same meanings as such terms have in the 1940 Act.)
11. AMENDMENT OF THIS AGREEMENT. No provision of this
Agreement may be changed, waived, discharged or terminated orally, but only
by an instrument in writing signed by the party against which an
enforcement of the change, waiver, discharge or termination is sought.
12. NOTICES. Notices of any kind to be given to the Company
hereunder by the Underwriter shall be in writing and shall be duly given if
mailed or delivered to the Company at 000 Xxxxxxxx Xxxxxxx, Xxxxxxxxxx,
Xxxxxxxx 00000, with a copy to _____________, 000 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, or at such other address or to such individual as shall be
so specified by the Company to the Underwriter. Notices of any kind to be
given to the Underwriter hereunder by the Company shall be in writing and
shall be duly given if mailed or delivered to BlackRock Distributors, Inc.,
Four Falls Corporate Center, 0xx Xxxxx, Xxxx Xxxxxxxxxxxx, Xxxxxxxxxxxx
00000, Attention: __________, or at such other address or to such other
individual as shall be so specified by the Underwriter to the Company.
13. CHOICE OF LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware.
14. MISCELLANEOUS. The captions in this Agreement are
included for convenience of reference only and in no way define or delimit
any of the provisions hereof or otherwise affect their construction or
effect. If any provision of this Agreement shall be held or made invalid by
a court decision, statute, rule or otherwise, the remainder of this
Agreement shall not be affected thereby. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their
respective successors.
15. COUNTERPARTS. This Agreement may be executed in
counterparts, all of which together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
instrument to be executed by their officers designated below as of the day
and year first above written.
THE BLACKROCK 2012 TERM TRUST
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By:
Title:
BLACKROCK DISTRIBUTORS, INC.
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By:
Title:
