BLACKROCK SERVICE AND DISTRIBUTION/MARKETING SUPPORT AGREEMENT FOR CLOSED-END FUNDS
Exhibit
99.h(2)(x)
EXECUTION
VERSION
Service Organization Name: Banc of
America Investment Services, Inc.
BLACKROCK
SERVICE
AND DISTRIBUTION/MARKETING SUPPORT 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) forwarding reports of a Fund and other information to Clients; (vi)
receiving, tabulating and transmitting 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
1
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 unless such
representations are consistent with 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 and
its employees will, upon 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 notice to Service Organization. Further, any Fund may,
in its discretion and without 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.
2
(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 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:
The
Funds and BII may enter into
other similar Agreements with any other person or persons without Service
Organization’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
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 New
York. 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 request,
certify to material compliance with all applicable federal, state and
self-regulatory organization requirements to the extent reasonably necessary to
comply with Rule 38a-1 under the 1940 Act. Service Organization
agrees to promptly advise BII
if
3
it
receives notice of any of the following: (1) any material Client complaint,
litigation initiated or threatened, or communication by a regulatory authority
which relates to a Fund or to a transaction in Shares by Service Organization;
or (2) any examination by any regulatory agency or self-regulatory organization
that has resulted in a material compliance deficiency; and Service Organization
agrees 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.
Section
13:
The
parties hereto agree to comply with all applicable anti-money laundering laws,
regulations, rules and government guidance, including the reporting, record
keeping and compliance requirements of the Bank Secrecy Act ("BSA"), as amended
by the International Money Laundering Abatement and Financial Anti-Terrorism Act
of 2002, Title III of the USA PATRIOT ACT ("the Act"), its implementing
regulations, and related SEC and FINRA rules. These requirements include
requirements to identify and report currency transactions and suspicious
activity, to verify customer identity, to conduct customer due diligence, and to
implement anti- money laundering compliance programs. Each party represents to
the other parties that, to the extent required by the Act, it will establish and
maintain a comprehensive anti-money laundering compliance
program. Upon written request and on an annual basis, each party
agrees to provide the other party with a written certification regarding the
maintenance of its anti-money laundering compliance program.
Section
14:
Service
Organization shall indemnify, defend and hold harmless BII and their officers,
directors, employees, affiliates, agents, successors and assigns from and
against any and all claims made, asserted or threatened by any third party, or
governmental agency, and all related losses, expenses, damages, cost and
liabilities including reasonable attorney’s fees and expenses incurred in
investigation or defense, arising out of or related to the
following:
|
|
(1)
|
Any
misrepresentation or omission by Service Organization, its employees or
agents in the performance of its obligations under this Agreement unless
such misrepresentation or omission is based upon any statement in the
Prospectus, Statement of Additional Information, or other written material
provided to the Service Organization by the BII or the
Funds;
|
|
|
(2)
|
Any
material breach in warranty, covenant or agreement by Service Organization
contained in this Agreement provided that such breach is not cured within
30 days;
|
4
|
|
(3)
|
Service
Organization’s relationship with its employees or agents or any action
taken in its capacity as an
employer.
|
BII
shall indemnify, defend and hold harmless Service Organization and its officers,
directors, employees, affiliates, agents, successors and assigns from and
against any and all claims made, asserted or threatened by any third party, or
governmental agency, and all related losses, expenses, damages, cost and
liabilities including reasonable attorneys’ fees and expenses incurred in
investigation or defense, arising out of or related to the
following:
|
|
(1)
|
Any
misrepresentation or omission by BII or the Funds, their employees or
agents in the performance of its obligations under this
Agreement;
|
|
|
(2)
|
Any
material breach in a warranty, covenant or agreement of BII or the Funds
contained in this Agreement provided that such breach is not cured within
30 days;
|
|
|
(3)
|
BII
or the Funds’ relationship with their employees or agents or any action
taken in their capacity as an
employer.
|
Section
15:
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 reasonably designed controls and
procedures to ensure ongoing compliance with all Applicable Law and the Fund’s
prospectus.
Section
16:
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. Section 16(a) of this Agreement applies only to Funds not
transacted through the Service Organization's clearing firm (which is National
Financial Services LLC). If a Fund transaction occurs through the
Service Organization's clearing firm, the Fund or BII shall request the
information directly from the clearing firm as the first-tier
intermediary. Service Organization will provide BII and the Funds a
minimum of 60 days advance written notice of any change
in Service Organization's clearing firm to allow BII and the
Funds to obtain a Rule 22c-2 agreement with the new clearing
firm.
5
(a) Redemption Fees. The Service Organization
agrees to collect from any Shareholder redeeming or exchanging Shares of a Fund
subject to a redemption fee such redemption fee in accordance with the terms and
conditions of the Fund's prospectuses, and shall promptly (and in accordance
with any agreed upon arrangements with BII or the Fund) remit such redemption
fee to BII for the account of the Fund.
Section
17:
This
Agreement may be amended upon the written consent of 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, which consent shall not be unreasonably
withheld.
Section
18:
BII
and the Funds shall have full authority to take such action as they may deem
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
19: 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
20:
Confidential
Information
a. Each party to this
Agreement shall maintain the confidentiality of any customer list and any
material designated as confidential and/or proprietary by another party
(“Confidential Information”), and shall not use or disclose such information
without the prior written consent of the party designating such material as
confidential and/or proprietary as required by applicable law or to
carry out the terms and conditions of this Agreement. BII and the Funds agree that
names, addresses, and other information as to Service Organization’s customers
given to them by Service Organization is
Confidential Information and shall not be disclosed to any person not a party to
this Agreement, except as provided for in Section b. below. Neither
BII nor the Funds shall utilize or permit to be utilized, such customer names,
addresses or other information received from Service Organization for the solicitation or sales of any
products or services. Each party to this Agreement shall take
reasonable steps to protect such Confidential Information, applying at least the
same security measures and level of care as it employs to protect its own
Confidential Information. If any party to this Agreement is compelled
by applicable law to disclose any Confidential Information, it shall promptly
notify the party designating such material as confidential and/or proprietary in
writing.
b. Each of the
parties, as recipient of Confidential Information (“Recipient”), hereby agrees that it will not, and will
cause its employees, officers, agents, consultants, affiliates and independent
contractors not to disclose Confidential Information of the other party,
including customer information and consumer information, during or after the
term of this Agreement,
6
other than on a
“need to know” basis and then only: (a) to affiliates of the
party disclosing the Confidential Information (“Discloser”); (b) to Recipient’s employees or
officers; (c) to affiliates of Recipient, its independent contractors at any
level, agents and consultants, provided that all such persons are subject to a
written confidentiality agreement that shall be no less restrictive than the
provisions of this Section; (d) pursuant to the exceptions set forth in 15 U.S.C
6802(e) and accompanying regulations, which disclosures are made in the ordinary
course of business and (e) as required by law or as otherwise expressly
permitted by this Agreement. Recipient shall not use or disclose
Confidential Information of the other Party for any purpose other than to carry
out this Agreement. Recipient shall treat Confidential Information of
the other party with no less care than it employs for its own Confidential
Information of a similar nature that it does not wish to disclose, publish or
disseminate, but not less than a reasonable level of care. Upon
expiration or termination of this Agreement for any reason or at the written
request of the Discloser during the term of this Agreement, the Recipient shall
promptly return to the Discloser, at the Discloser’s direction, all Discloser
Confidential Information in the possession of the Recipient, subject to and in
accordance with the terms and provisions of this Agreement, except to the extent
retention of such Confidential Information is necessary for the Recipient to
perform any continuing obligations relative to the Contracts sold under the
terms of this Agreement or as otherwise required by
law.
c. The obligations of confidentiality in this
Section shall not apply to any information that (i) the Recipient rightfully has
in its possession when disclosed to it, free of obligation to the Discloser to
maintain its confidentiality; (ii) the Recipient independently develops without
access to the Discloser’s Confidential Information; (iii) is or becomes known to
the public other than by breach of this Section; or (iv) is rightfully received
by the Recipient from a third party without the obligation of
confidentiality. Any combination of Confidential Information
disclosed with information not so classified shall not be deemed to be within
one of the foregoing exclusions merely because individual portions of such
combination are free of any confidentiality obligation or are separately known
in the public domain.
d. To the extent legally permitted,
Recipient shall notify Discloser of any actual or threatened requirement of law
to disclose Confidential Information promptly upon receiving actual knowledge
thereof and shall cooperate with Discloser's reasonable, lawful efforts to
resist, limit or delay disclosure. Nothing in this Section shall
require any notice or other action by any party in connection with requests or
demands for Confidential Information by a regulatory authority such as bank or
insurance examiners where it is not feasible or practical to provide such notice
or take such action.
e. Neither party shall issue any media releases, public
announcements and public disclosures using the name or logo of the other party
in promotional, marketing material or similar material or on a list of
customers, provided that nothing in this paragraph shall restrict any disclosure
required by legal, accounting or regulatory requirements beyond the reasonable
control of the releasing party.
Section
21: Each
party hereto agrees to comply with the privacy laws affecting it, including
compliance with the privacy requirements imposed under the Xxxxx-Xxxxx-Xxxxxx
Act (P.L. 102-106), and agrees further not to take any action to cause another
party to violate such privacy laws. If the applicable privacy laws
change, the parties shall take such action as is necessary to comply with the
law as it then exists. BII agrees to disclose or use the non public personal
financial information (as such term is defined in Xxxxx-Xxxxx-Xxxxxx) of the
Service Organization’s customers only to carry out the terms and conditions of
this Agreement or as permitted by applicable law.
In
addition, each party hereto shall maintain an information security program
designed to: (i) insure the security and confidentiality of nonpublic
personal information; (ii) protect against any
7
anticipated
threats or hazards to the security or integrity of such information; and (iii)
protect against unauthorized access to or use of such
information. Each party shall notify the other party promptly upon
the discovery of any loss, unauthorized access, disclosure or unauthorized use
of such nonpublic personal information.
Section
22: BII
and Service Organization shall each maintain a business continuity plan and
shall make such plan available to the other party to this Agreement upon
reasonable request or as required by applicable law.
Section
23: BII
and Service Organization shall fully cooperate with each other in any securities
regulatory investigation or proceeding or judicial proceeding with respect to
the Funds marketed under this Agreement.
Section 24:
Interaction
Between Employees of BII and Service Organization. BII shall
abide by Service Organization’s policies with respect to training and
educational meetings, entertainment, and gifts provided to or for employees of
the Service Organization. BII also shall comply with Service
Organization policies regarding visits to Service Organization’s
offices. BII will provide Service Organization with information
regarding (1) each visit to the Service Organization office by a BII employee,
(2) training or educational meetings provided by BII or its employees to
employees of the Service Organization, and (3) entertainment, and gifts provided
by BII or its employees to Service Organization employees.
Section
25:
The
illegality, invalidity or unenforceability of any provision of this Agreement
under the law of any jurisdiction shall not affect its legality, validity or
enforceability under the law of any other jurisdiction nor the legality,
validity or enforceability of any other provision.
Section
26: 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.
8
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.
|
BLACKROCK
INVESTMENTS, INC.
|
||||
|
By:
|
||||
|
Service
Organization Name
(please
print or type)
|
(Authorized
Officer)
|
|||
|
Address
|
Signature
|
|||
|
City
|
State
|
Zip
Code
|
Title
|
|
|
By:
|
||||
|
(Please
Print or Type)
|
Date
|
|||
|
Signature
|
||||
|
Title
|
||||
|
Date
|
||||
9
Schedule
A
List
of Applicable Funds under the Terms of this Agreement
10
Date:___________________
Appendix
A
BLACKROCK
Appendix
A to
SERVICE
AND DISTRIBUTION/MARKETING SUPPORT AGREEMENT FOR CLOSED-END FUNDS
FEE
SCHEDULE
Pursuant
to the terms and conditions set forth in the attached Service and
Distribution/Marketing Support 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.
|
General
Shareholder Services --
_______________________________
|
|
Distribution
Services and Sales Support Services1
-- _______________________________
|
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:
|
Fund
|
Service
Fee (Account Maintenance Fee)
|
Distribution
Services and Sales Support Services Fee
|
|
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
|
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
|
|
______________________
11
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
12
