STRUCTURING FEE AGREEMENT
Exhibit 99.(h)(4)
August
[•], 2010
Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Reference
is made to the Underwriting Agreement dated August [•], 2010 (the “Underwriting
Agreement”), by and among BlackRock Build America Bond Trust, a Delaware statutory trust (the
“Fund”), BlackRock Advisors, LLC, a Delaware limited liability company (the “Adviser”), BlackRock
Investment Management, LLC, a Delaware limited liability company , and each of the Underwriters
named in Schedule I therein, severally, with respect to the issue and sale of the Fund’s Securities
(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 in offering advice relating to the
structure and design of the Fund and the organization of the Fund as well as services related to
the sale and distribution of the Fund’s Securities, which services may be completed by your
affiliates in your sole discretion, the Adviser shall pay a fee to you in the aggregate amount of
$[•] (the “Fee”). The sum total of
this Fee, plus the structuring fees and sales incentive fee paid to
certain other underwriters in connection with this offering, plus the
underwriters’ counsel fees paid by the Fund and commissions paid
to certain registered personnel of its broker-dealer affiliates shall
not exceed 9.0% of the total price of the Securities sold by the Fund
pursuant to the Prospectus. The fee shall be paid within 30 days
of the Closing Date (as defined in the
Underwriting Agreement). The payment shall be made by wire transfer to the order of Citigroup
Global Markets Inc. The Adviser acknowledges that the Fee is in addition to any compensation you
earn in connection with your role as an underwriter to the Fund in the Offering, which services are
distinct from and in addition to the marketing and structuring services described above.
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 common shares having been delivered
and paid for.
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 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 Fund’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 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). In addition, nothing in this Agreement shall be construed to constitute
you as the agent or employee of the Adviser or the Adviser as your agent or employee, and neither
party shall make any representation to the contrary. It is understood that you are engaged
hereunder solely to provide the services described above to the Adviser and that you are not acting
as an agent or fiduciary of, and you shall not have any duties or liability to, the current or
future partners, members or equity owners of the Adviser or any other third party in connection
with its engagement hereunder, all of which are hereby expressly waived to the extent the Adviser
has the authority to waive such duties and liabilities.
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 managers).
Neither this Agreement nor the performance of the services contemplated hereunder shall be
considered to constitute a partnership, association or joint venture between you and the Adviser.
6. Assignment.
This Agreement may not be assigned by either party without the 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 transmission
shall be effective as delivery of a manually executed counterpart hereof.
[END OF TEXT]
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This Agreement shall be effective as of the date first written above.
| BLACKROCK ADVISORS, LLC |
||||
| By: | ||||
| Name: | Xxxx Xxxxxxx | |||
| Title: | Managing Director | |||
Agreed and Accepted:
| CITIGROUP GLOBAL MARKETS INC. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
Citigroup Structuring Fee Agreement
Indemnification Agreement
August [•], 2010
Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
In connection with the engagement of Citigroup Global Markets Inc. (the “Bank”) to advise and
assist the undersigned, BlackRock Advisors, LLC (together with its affiliates and subsidiaries,
referred to as the “Company”) with respect to the matters set forth in the Structuring Fee
Agreement dated [•], 2010 between the Company and the Bank (the “Agreement”), in the event that the
Bank, any of its affiliates, each other person, if any, controlling the Bank 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 (the Bank 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 reasonable
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. The indemnification provided hereunder shall
not extend to those matters indemnified under the Underwriting
Agreement, dated August [•], 2010, by and among
BlackRock Build America Bond Trust (the “Fund”), BlackRock
Advisors, LLC, BlackRock Investment Management, LLC and each of the
underwriters named therein. 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 reasonable legal and other expenses (including
the cost of any investigation and preparation) as such expenses are
incurred and accounted for 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 Bank. The Company may participate at its own expense in the defense of
any such action; provided, however, that counsel to the Company shall not (except with the consent
of the Indemnified Parties) also be counsel to the Indemnified Parties. The Company shall not,
without the prior written consent of the Indemnified Parties, 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,
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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.
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
Indemnified Parties, 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
Indemnified Parties, on the other hand, of a transaction as contemplated shall be deemed to be in
the same proportion that the total value received by or paid to or contemplated to be received by
or paid to 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 the Bank has been retained
to perform services bears to the fees paid to the Bank 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 the Bank 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 the Bank, 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 Company will not
settle any Proceeding in respect of which indemnity may be sought hereunder, whether or not an
Indemnified Party is an actual or potential party to such Proceeding, without the Bank’s prior
written consent (which consent shall not be unreasonably withheld). 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 the Bank in performing the services that are the subject of the 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 INDEMNIFICATION
AGREEMENT IS BROUGHT BY ANY THIRD PARTY AGAINST THE BANK 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
INDEMNIFICATION AGREEMENT. EACH INDEMNIFIED PARTY AND THE COMPANY AGREES THAT A FINAL JUDGMENT IN ANY PROCEEDING OR CLAIM
ARISING OUT OF OR IN ANY WAY RELATING TO THIS INDEMNIFICATION AGREEMENT BROUGHT IN ANY SUCH COURT
SHALL BE CONCLUSIVE AND BINDING UPON INDEMNIFIED PARTY AND THE
COMPANY, AS THE CASE MAY BE, AND MAY BE ENFORCED IN ANY OTHER COURTS TO THE
JURISDICTION OF WHICH THE INDEMNIFIED PARTY AND COMPANY, AS THE CASE
MAY BE, 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 the Bank’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 |
||||
| By: | ||||
| Name: | Xxxx Xxxxxxx | |||
| Title: | Managing Director | |||
Agreed and Accepted:
| CITIGROUP GLOBAL MARKETS INC. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
Citigroup Indemnification Agreement
