STRUCTURING FEE AGREEMENT August [•], 2010
Exhibit 99.(h)(7)
August [•], 2010
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 August [•], 2010 (the “Underwriting Agreement”), by
and among BlackRock Build America Bond Trust (the “Fund”), BlackRock Advisors, LLC (the “Adviser”),
BlackRock Investment Management, LLC and each of the Underwriters named therein, severally, with
respect to the issue and sale of the Fund’s common shares of
beneficial interest, par value $0.001 per share (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 as a co-manager assisting the Adviser with
respect 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 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 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 Fund’s Common Stock sold by the Fund pursuant to the Prospectus. The Fee shall be paid within 30 days of the [Closing Date], 2010. The Fee shall be paid by wire transfer to the order of Ameriprise
Financial Services, Inc.
In the event that the Adviser (or the Fund or any person or entity affiliated with the Adviser
or the Fund or acting on behalf of or at the direction of any of the foregoing) compensates or
agrees to compensate any other broker or dealer participating in the Offering (each, an “Other
Broker”) for any services or otherwise in connection with the Offering or with respect to the Fund
or its Common Shares (excluding for this purpose any compensation paid directly to the entire
underwriting syndicate, as a group, pursuant to the Underwriting Agreement), and whether such
compensation be denominated a fee, an expense reimbursement, a set-off, a credit or otherwise (such
compensation with respect to any Other Broker, such Other Broker’s “Other Compensation”), then the
amount of the Fee shall be increased as and to the extent necessary so that the Fee payable to you
hereunder, expressed as a percentage of the aggregate price to the public of the Common Shares sold
by you in the Offering (including any Common Shares over-allotted by you in the Offering regardless
of whether the over-allotment option in the Offering is exercised), is no less than the Other
Compensation, expressed as a percentage of the aggregate price to the public of the Common Shares
sold by such Other Broker in the Offering.
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 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. Information. The Adviser has furnished you with such information as you believe
appropriate to your assignment hereunder (all such information so furnished being the
“Information”). The Adviser recognizes and confirms that you (a) have used and relied primarily on
the Information and on information available from generally recognized public sources in performing
the services contemplated by this Agreement without having independently verified the same and (b)
do not assume responsibility for the accuracy or completeness of the Information and such other
information. To the best of the Adviser’s knowledge, the Information furnished by the Adviser,
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 Adviser will promptly notify you if it learns of any material
inaccuracy or misstatement in, or material omission from, any Information delivered to you. You
agree to keep such Information confidential to the extent permitted by law.
5. 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 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).
6. 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), so
long as your services to the Adviser are not impaired thereby.
7. Assignment. This Agreement may not be assigned by any party without prior
written consent of the other party.
8. Amendment; Waiver. No provision of this Agreement may be amended or waived
except by an instrument in writing signed by the parties hereto.
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9. Governing Law. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of New York.
10. 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.
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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: | Xxxx Xxxxxxx | |||
| Title: | Managing Director | |||
|
Agreed and Accepted: AMERIPRISE FINANCIAL SERVICES, INC. |
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| By: | ||||
| Name: | ||||
| Title: | ||||
Indemnification Agreement
| August [•], 2010 |
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. (the “Bank”) 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 August [•], 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 and employees, 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 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 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, 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 legal and other expenses resulted from the gross negligence or willful misconduct of the Indemnified Party or the Indemnified Party is not otherwise entitled to indemnification hereunder.
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.
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) also be counsel to the Indemnified Party. No indemnifying party shall,
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, 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 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 by or paid to or contemplated
to be received by or paid to 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 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.
Promptly
as reasonably practicable after receipt by an Indemnified Party of
notice of the commencement of any Proceeding, the 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.
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 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 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 AGREEMENT
BROUGHT IN ANY SUCH COURT SHALL BE CONCLUSIVE AND BINDING UPON THE
COMPANY AND THE INDEMNIFIED PARTY, AS THE CASE MAY BE, AND MAY BE ENFORCED IN
ANY OTHER COURTS TO THE JURISDICTION OF WHICH THE COMPANY AND THE
INDEMNIFIED PARTY, 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 |
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| By: | ||||
| Name: | ||||
| Title: | ||||
|
Agreed and Accepted: AMERIPRISE FINANCIAL SERVICES, INC. |
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| By: | ||||
| Name: | ||||
| Title: | ||||
[Indemnification Agreement]
