AMENDED AND RESTATED BLACKROCK DISTRIBUTION SERVICES AND SALES SUPPORT SERVICES AGREEMENT FOR CLOSED-END FUNDS
Exhibit
99.h(2)(viii)
Service
Organization Name: Xxxxxxx Xxxxx &
Associates, Inc.
AMENDED
AND RESTATED BLACKROCK
DISTRIBUTION
SERVICES AND SALES SUPPORT SERVICES AGREEMENT FOR CLOSED-END FUNDS
BlackRock
Investments, Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
BlackRock
Investments, Inc. (“BII”)
and the service organization named below (“Service Organization”) wish to enter
into this Agreement relating to the clients of Service Organization (“Clients”)
who may from time to time beneficially own equity interests (collectively, the
“Shares”) in any closed-end investment company included in Schedule A, which may
be amended by BII from time to time (each a “Closed-End Fund”),
distributed by BII (each a
“Fund” and, collectively, the “Funds”).
The
terms and conditions of this Agreement are as follows:
Section
1: Except
as otherwise designated in Appendix A to this Agreement, Service Organization
agrees to provide general shareholder services relating to the administration of
shareholder accounts with respect to Clients who may from time to time
beneficially own Shares.
“General
shareholder services” include, but are not limited to, (i) answering Client
inquiries regarding account status and history, the manner
in which purchases, exchanges and redemptions or repurchases of shares may be
effected and certain other matters pertaining to the Clients’ investments; (ii)
assisting Clients in designating and changing dividend options, account
designations and addresses; (iii) assisting in the preparation of reports and
transaction statements to Clients; (iv) providing sub-accounting services for
Shares held beneficially by Clients; (v) distributing or causing to be
distributed reports of a Fund and other information to Clients;
(vi) distributing
or causing to be distributed proxies and (vii) providing
such other similar services as a Fund, BII or a Client may reasonably
request.
Section
2: Except
as otherwise designated in Appendix A to this Agreement, Service Organization
agrees to provide distribution services and sales support services for the
Shares included in Schedule A for which it receives a distribution services and
sales support services fee as included in Appendix A of this
Agreement.
Section
3: Service
Organization represents that the fees paid to it pursuant to this Agreement are
reasonable in relation to the services it provides and are reasonably similar to
fees it receives for equivalent services provided to other
parties. BII and its designees represent that all appropriate
disclosures pertaining to the fee arrangements hereunder are included in the
current prospectuses or Statement of Additional Information of the Funds and
that these fee arrangements have been approved by the Board of
Directors/Trustees of the Funds. Service
Organization
agrees, represents and warrants to provide disclosure documents to its Clients
consistent with applicable legal requirements in effect from time to
time.
Section
4: Neither
Service Organization nor any of its officers, employees or agents are authorized
to make any representations concerning a Fund or its Shares except those
contained in the then current prospectuses and Statement of Additional
Information for Shares, repurchase offer notices or in such supplemental
literature or advertising as may be authorized by the Fund or BII in writing.
Section
5: For
all purposes of this Agreement, Service Organization will be deemed to be an
independent contractor, and will have no authority to act as agent for the Funds
or BII in any matter or in
any respect. Service Organization shall disclose to its Clients that
they are transacting business with Service Organization only and not with BII or the Funds and that they
shall look only to Service Organization and not to BII or the Funds for resolution of
problems or discrepancies in their accounts. Service Organization
agrees to and does release, indemnify and hold the Funds, BII and their agents and employees
harmless from and against any and all direct or indirect liabilities or losses
resulting from requests, directions, actions or inactions of or by Service
Organization or its officers, employees or agents regarding the responsibilities
of Service Organization hereunder or, except as noted in this Section 5, for the
purchase, redemption, transfer or registration of Shares (or orders relating to
the same) by or on behalf of Clients to whom Service Organization provides
services hereunder. BII
agrees to and does release, indemnify and hold the Funds, Service Organization
and their agents and employees harmless from and against any and all direct or
indirect liabilities or losses resulting from requests, directions, actions or
inactions of or by BII or its officers, employees or agents regarding the
responsibilities of BII hereunder. BII further agrees to release, indemnify and
hold harmless the Fund, Service Organization and any of its respective
affiliates from any and all direct or indirect liabilities or losses due to the
negligence of BII regarding the purchase, redemption, transfer or
registration of Fund shares for
accounts of Service Organization and its clients. Service
Organization and its employees will, upon reasonable request, be available
during normal business hours to consult with the Funds, BII or their designees concerning
the performance of Service Organization’s responsibilities under this
Agreement.
Section
6: (i)
In consideration of the services and facilities provided by Service Organization
pursuant to Section 1 hereof, a Fund, BII or an affiliate of BII, as disclosed
from time to time in the respective Fund's Registration Statement, will pay to
Service Organization, and Service Organization will accept as full payment
therefor, the service fees set forth in Appendix A to this Agreement at annual
rates based on the average daily net asset value of the Shares beneficially
owned by Clients for whom Service Organization is the dealer of record or holder
of record with whom Service Organization has a servicing relationship (the
“Clients’ Shares”), which fees will be computed daily and payable periodically
at the intervals specified in Appendix A. Service Organization agrees
to waive the payments of any general shareholder service fees unless and until
BII has received such fees from the applicable Fund.
(ii) In
consideration of the services and facilities provided by Service Organization
pursuant to Section 2 hereof, a Fund, BII or an affiliate of BII, as
disclosed from time to time in the respective Fund's Registration Statement,
will pay to Service Organization, and Service Organization will accept as full
payment therefor, the distribution services and sales support services fees set
forth in Appendix A to this Agreement at annual rates based on the average daily
net asset value of the Clients’ Shares, which fees will be computed daily and
payable periodically
at
the intervals specified in Appendix A. Service Organization agrees to
waive the payment of distribution, sales and sales support fees unless and until
BII has received such fees
from the applicable Fund.
(iii) For
purposes of determining the fees payable under this Section 6, the average daily
net asset value of the Clients’ Shares will be computed in the manner specified
in the applicable Fund’s Registration Statement (as the same is in effect from
time to time). The fee rate(s) set forth in Appendix A to this
Agreement may be prospectively increased or decreased by the Funds and BII, in their sole discretion, at
any time upon thirty (30)
days notice to Service Organization. Further, any Fund may, in
its discretion and with prior
notice, suspend or withdraw the sale of its Shares, including the sale of its
Shares to Service Organization for the account of any Client or
Clients.
(iv) The
fees set forth in Appendix A to this Agreement shall be automatically amended to
reflect any changes thereto approved by the Board of Directors/Trustees of a
Fund from time to time upon thirty
(30) days notice to the Service Organization.
Section
7: Any
person authorized to direct the disposition of monies paid or payable pursuant
to this Agreement will provide to the applicable Fund’s Board of
Directors/Trustees, and the directors/trustees will review, at least quarterly,
a written report of the amounts so expended and the purposes for which such
expenditures were made. Service Organization will furnish the Funds,
BII or their designees with
such information as they may reasonably request (including, without limitation,
periodic certifications confirming the provision to Clients of the services
described herein), and will otherwise cooperate with the Funds, BII and their designees
(including, without limitation, any auditors designated by the Funds), in
connection with the preparation of reports to the Board of Directors/Trustees
concerning this Agreement and the monies paid or payable pursuant hereto, as
well as any other reports or filings that may be required by law.
Section
8: Either party may enter into other
similar Agreements with any other person or persons without the other party’s
consent.
Section
9: This
Agreement will become effective on the date it is accepted and signed by BII or its
designee. Unless sooner terminated, this Agreement will continue
until the second anniversary of the date on which the Agreement is executed, and
thereafter will continue automatically for successive annual periods, provided
such continuance is approved at least annually by the Funds. This
Agreement is terminable with respect to any class of Shares, without penalty, at
any time by the applicable Fund or by either BII or Service Organization
upon thirty (30) days written
notice to the parties hereto.
Section
10: All
notices and other communications to BII or Service Organization will
be duly given if mailed, telegraphed, telexed or transmitted by similar
telecommunications device to the appropriate address stated herein, or to such
other addresses as any party shall so provide to other parties.
Section
11: This
Agreement will be construed in accordance with the laws of the State of
Delaware. This Agreement shall be binding upon and shall inure to the
benefit of the parties and
their
respective successors and assigns; provided, however, that neither this
Agreement nor any rights, privileges, duties or obligations of the parties may
be assigned by a party without the written consent of the other parties or as
expressly contemplated by this Agreement.
Section
12: Service
Organization agrees to provide general shareholder services and distribution
services and sales support services in accordance with all applicable federal
and state securities laws and the rules and regulations of applicable regulatory
agencies or authorities, such as the Securities and Exchange Commission and the
Financial Industry Regulatory Authority (“FINRA”), including the application of
Rule 22c-1(a) under the 1940 Act to the Funds as though the Funds were open-end
investment companies to the extent requested by BII or a Fund, and all
requirements to provide specific disclosures to Clients regarding fees paid
under this Agreement. Service Organization will, upon reasonable request, annually
certify to compliance with all applicable federal, state and self-regulatory
organization requirements. Service Organization agrees to endeavor to
promptly advise BII if it
receives notice of any of the following: (1) any Client complaint, litigation
initiated or threatened, or communication by a regulatory authority which
relates solely to a Fund or to a transaction in Fund Shares by Service
Organization; or (2) any examination by any regulatory agency or self-regulatory
organization that has resulted in a finding by the agency or organization of a
material compliance deficiency that directly impacts Service Organization’s
performance under this Agreement; and Service Organization agrees to endeavor to
promptly provide BII with
such information and documentation thereon as BII may
request.
BII acknowledges and agrees that Service Organization is
not responsible for: (i) any information contained in any prospectus,
registration statement, annual or semi-annual report, proxy statement, or item
of advertising or marketing material prepared by a Fund, BII or their designees
which relate to the Funds; (ii) registration or qualification of any Fund Shares
under any federal or state laws; or (iii) compliance by a Fund or BII with all
applicable federal and state laws, rules and regulations, the rules and
regulations of any self-regulatory organization with jurisdiction over the
above-named parties, and the provisions of the Funds’ prospectuses and
statements of additional information (the foregoing laws, rules and regulations
are collectively referred to herein as “Applicable
Law”).
Service
Organization shall comply with all Applicable Law, including but not limited to
Rule 22c-1(a) under the 1940 Act as though the Funds were open-end investment
companies, and all requirements to provide specific disclosures regarding fees
paid under this Agreement. Service Organization has policies and
procedures in place in order to comply with all such requirements as applicable
and effective, including its obligations under the provisions of the
International Money Laundering Abatement Act, the USA PATRIOT Act, the Bank
Secrecy Act (“BSA”) and any other anti-money laundering law, rule or regulation
applicable to Service Organization as a financial institution under the BSA, or
otherwise. Subject to legal restrictions, Service Organization will,
upon reasonable request,
promptly provide to a Fund, BII or their designee evidence of those policies and
procedures and Service Organization’s compliance therewith and/or evidence
establishing the identities and sources of funds for each purchase of Shares of
the Fund. Service Organization acknowledges and agrees that the Fund
Parties are not responsible for Service Organization’s compliance with
Applicable Law.
Service
Organization has in place policies and procedures that are reasonably designed
to meet the requirements imposed by the Bank Secrecy Act as amended by the USA
PATRIOT Act. Service Organization’s AML program, at a minimum; 1) designates a
compliance office to administer and oversee the AML Program; 2) provides ongoing
employee training; 3) includes an
independent
audit function to test the effectiveness of the Program; 4) establishes internal
policies, procedures, and controls that are tailored to its particular business;
5) includes a Customer Identification Program consistent with the rules under
Section 326 of the Act; 6) provides for the filing of all necessary anti-money
laundering reports including, but not limited to, suspicious activity reports;
and 7) provides for screening customers against the Office of Foreign Asset
Control (“OFAC”) list and any other government list that is or becomes required
under the Act.
Section
13: Service
Organization agrees that any orders transmitted to a Fund or its agent are
subject to the terms and conditions of the Fund’s prospectus (including, without
limitation, those provisions regarding the purchase, exchange and redemption of
Shares and policies to deter market timing and other inappropriate trading
activity such as any redemption fees and any limitations on exchanges) and this
Agreement and are subject to acceptance or rejection by the Fund in its sole
discretion. A Fund’s failure to reject any purchase orders that might
be deemed to be inappropriate shall not constitute a waiver of its rights under
this section. Service Organization’s handling of orders for
transactions of Shares shall also comply with Service Organization’s internal
policies and procedures, which Service Organization believes to be appropriate
and sufficient with regard to the handling of Fund orders on a timely basis and
which Service Organization believes provide adequate controls and procedures to
ensure ongoing compliance with all Applicable Law and the Fund’s prospectus. BII shall notify Service
Organization of any pertinent changes.
Section
14: Rule 22c-2
Compliance: (a) Agreement to
Provide Information. The Service Organization agrees to
provide to a Fund or its designee, upon written request of BII or the Fund, the taxpayer
identification number (“TIN”), the Individual/International Taxpayer
Identification Number (“ITIN”), or other government issued identifier (“GII”),
if known, of any or all Shareholders (as defined in Rule 22c-2 under the 1940
Act (“Rule 22c-2”)) of an account maintained by the Service Organization and the
amount, date, name or other identifier of any investment professional(s)
associated with the Shareholder(s) or the account (if known), and transaction
type (purchase, redemption, transfer, or exchange) of every purchase,
redemption, transfer, or exchange of Shares held through the account maintained
by the Service Organization during the period covered by the
request.
(b) Redemption
Fees. Any
applicable redemption fee or deferred sales charge will be deducted by BII prior
to the transmission of the redemption proceeds to Service Organization or its
Client(s).
Section
15: This
Agreement may be amended by BII at any time upon written notice to the Service
Organization, and the Service Organization’s placing of a transaction regarding
Shares of a Fund after notice of such amendment has been sent shall constitute
the Service Organization’s agreement to such amendment. Any change or waiver to
this Agreement or any term thereof desired by Service Organization shall be
executed in writing and signed by both BII and Service
Organization. This Agreement may be assigned by BII to any affiliate
of BII, provided that such affiliate is registered with FINRA. This
Agreement may not be assigned by Service Organization without the prior written
consent of BII.
Section
16: BII
and the Funds shall have full authority to take such action as they may
deem reasonably advisable in
respect of all matters pertaining to the continuous offering of the
Shares. In no way shall the provisions of this Agreement limit the
authority of BII or the Funds
to
take
such lawful action as they may deem appropriate or advisable in connection with
all matters relating to the operation of the Funds and the sale of the
Shares. BII and
the Funds shall be under no liability to Service Organization or its Clients
except for lack of good faith and for obligations expressly assumed by BII and the Funds
herein. Nothing contained in this paragraph is intended to operate
as, and the provisions of this paragraph shall not in any way whatsoever
constitute, a waiver by Service Organization of compliance with any provision of
the Securities Act of 1933, as amended, or of the rules and regulations of the
SEC issued thereunder.
Section
17: Except
to the extent required by applicable law, no party shall use any other party’s
names, logos, trademarks or service marks, whether registered or unregistered,
without the prior consent of the other party.
Section
18:
(a) All
confidential information of a party and of the third parties with which it does
business, including without limitation information relating to computer systems,
participant data, customer lists and business plans, is collectively referred to
as its “Confidential Information.” Except as expressly permitted by
this Agreement, each party hereto will: (i) keep and maintain all Confidential
Information of the other parties in strict confidence, using such degree of care
as is appropriate to avoid unauthorized use or disclosure; (ii) not, directly or
indirectly, disclose any Confidential Information of the other party or parties
to any third party, except with the other party’s or parties’ prior written
consent; and (iii) not make use of the other party’s or parties’ Confidential
Information for its own purposes or the benefit of any party except the
other.
(b) Each party will be permitted to
disclose the others’ Confidential Information only to its employees, legal
counsel, auditors and agents (collectively, “Employees”) having a need to know
the Confidential Information in connection with the performance of its
obligations under this Agreement. The parties will instruct their
respective Employees as to their obligations under this
Agreement. Despite any contrary provision in this Agreement, any
party may disclose the others’ Confidential Information to the extent required
to comply with law, or a
court order; provided, however, that each party must promptly notify the other
parties of receipt of a request (to the extent practicable and if
lawfully permitted to do so) for Confidential Information made
pursuant to law or court order, give the other parties a reasonable opportunity
to prevent the disclosure of the Confidential Information, and reasonably
cooperate with the other parties in any efforts they make to prevent the
disclosure of the Confidential Information. In the event that access to or delivery of
any Confidential Information is requested of the recipient by a regulatory,
self-regulatory or supervisory authority having appropriate jurisdiction, the
recipient shall give to the provider, to the extent practicable and if lawfully
permitted to do so, prompt written notice of such request, but may comply with
such request.
Section
19: Despite
any contrary provision in this Agreement, Confidential Information of a party
will not include information that: (i) is or becomes generally known to the
public not as a result of a disclosure by the other parties, (ii) is rightfully
in the possession of the other parties before disclosure by the first party,
(iii) is independently developed by the other parties without reliance on the
Confidential Information, or (iv) is received by the other parties in good faith
and without restriction from a third party not under a confidentiality
obligation to the first party and having the right to make such
disclosure. The parties each acknowledge that the disclosure of the
others’ Confidential Information may cause irreparable injury to the others and
damages which may be difficult to ascertain. Therefore, each party
will be entitled to seek
injunctive relief upon a disclosure or threatened disclosure of any of its
Confidential Information that would violate the
terms
of this Agreement. Without limitation of the foregoing, each party
will advise the others immediately in the event that it learns or has reason to
believe that any person or entity which has had access to Confidential
Information has violated or intends to violate the terms of this
Agreement.
Section
20:
This
Agreement, including all exhibits, contains the entire agreement between the
parties with respect to the transactions covered and contemplated hereunder, and
supersedes all prior agreements and understandings with regard to the Funds
between the parties relating to the subject matter hereof.
Section
21: Service
Organization shall have the right to prepare for internal use only, its own
internal marketing memorandums, bulletins and/or information relating to the
Funds or units of interest in the Fund represented by this
Agreement. BII
shall have no obligation, responsibility or liability with regard to the
preparation, use or content of such material. For the avoidance of
doubt, Service Organization shall release, indemnify and hold the Funds,
BII and their agents and
employees harmless from and against any and all direct or indirect liabilities
or losses resulting from the use of
materials referred to in this Section 21.
Section
22: BII acknowledges
that under Federal law and regulations adopted by Securities and Exchange
Commission, all customer information relating to customers of Service
Organization must be maintained in strict confidence. Accordingly,
BII agrees: (i) to take reasonable steps necessary to maintain the
confidentiality of the information to the same extent as is required by Service
Organization and (ii) to use the information solely for the purpose of assisting
Service Organization in conducting its business, and for no other
purpose. In addition, all Financial Advisor information, including,
but not limited to , production information, customer base, telephone number and
address provided by Service Organization must be maintained by BII in strict
confidence and not disclosed to any third party, or use for its own benefit
(other than expressly permitted in the Confidentiality clause) or the benefit of
any third party.
Section
23: Should a
dispute arise under this agreement that cannot be resolved amicably by the
parties, both parties agree to submit to binding arbitration under the then
current rules of the Financial Industry Regulatory Authority in New York, New York.
Section
24: BII, upon written request of Service
Organization, agrees to provide Service Organization with a copy of any
materials distributed to the Fund’s investors. In addition, BII
agrees to direct a copy of the generic form of all communications, notices or
other materials intended for Service Organization to the attention
of:
Xxxx
Xxxxxx
Managing Director of the Alternative
Investments Group
Xxxxxxx Xxxxx & Associates,
Inc.
000 Xxxxxxxx
Xxxxxxx
Xx. Xxxxxxxxxx, Xxxxxxx
00000
Section 25: BII agrees not to
knowingly solicit any accounts introduced to the Funds by Service Organization
for the sale of shares with respect to any products other than the Fund and
further agrees that it will not knowingly provide information regarding any such
accounts to any
other
solicitor or authorize any solicitation of any such accounts by others on BII’s
behalf. Additionally, BII agrees that it will not knowingly solocit orders
directly from clients of Service Organization nor will it knowlngly solicit
orders for additional purchases directly from financial advisors affiliated with
Service Organization. This provision shall survive the termination of and/or
further amendments to this Agreement.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered by their proper and duly authorized officers as of the
day and year written below.
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BLACKROCK
INVESTMENTS, INC.
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By:
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Service
Organization Name
(please
print or type)
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(Authorized Officer)
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Address
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Signature
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City
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State
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Zip
Code
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Title
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By:
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(Please
Print or Type)
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Date
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Signature
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Title
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Date
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Schedule
A
List
of Applicable Funds under the Terms of this Agreement
Date:___________________
Appendix
A
BLACKROCK
Appendix
A to
DISTRIBUTION
SERVICES AND SALES SUPPORT SERVICES AGREEMENT FOR CLOSED-END FUNDS
FEE
SCHEDULE
Pursuant
to the terms and conditions set forth in the attached Distribution Services and
Sales Support Services Agreement for Closed-End Funds (the “Agreement”), Service
Organization agrees to provide the services described in Section 1 and Section 2
of the Agreement for each Fund. If you do not intend to provide
services and receive payment for a Fund, please sign below next to the type of
services/payments.
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General
Shareholder Services
-- ___________________________
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Distribution
Services and Sales Support Services1 --
_____________________________
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Pursuant
to the terms and conditions set forth in the Agreement (including Section 4
thereof), Service Organization will accept as full payment for the services
provided by it as specified above a Distribution Services and Sales Support
Services Fee and/or a Service Fee for General Shareholder Services
(calculated daily and payable monthly) for the Funds as listed
below:
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Fund
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Service
Fee (Account Maintenance Fee)
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Distribution
Services and Sales Support Services Fee
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0.25%
of the net asset value of the common shares owned by customers of Service
Organization, but not to exceed 2.29% of the total price to the public of
the common shares sold by Service Organization in FIVO’s initial public
offering
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0.25%
of the net asset value of the common shares owned by customers of Service
Organization, but not to exceed 2.29% of the total price to the public of
the common shares sold by Service Organization in FIVO’s initial public
offering
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______________________
Except
as otherwise agreed by the parties, the foregoing fees will accrue and be
payable on each Share beneficially owned by a Client for periods beginning on
and after the following dates:
Service
Fee for General
Shareholder Services
Distribution
Services and
Sales
Support Services Fee
