STRUCTURING FEE AGREEMENT
Exhibit (h)(8)
November [•], 2011
Xxxxx Fargo Securities, LLC
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
Reference is made to the Underwriting Agreement dated November [•], 2011 (the
“Underwriting Agreement”), by and among BlackRock Utility and Infrastructure Trust (the
“Trust”), BlackRock Advisors, LLC (the “Adviser”), BlackRock Financial Management,
Inc. and BlackRock Investment Management, LLC and each of the Underwriters named in Schedule A
therein, severally, with respect to the issue and sale of the Trust’s 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 assisting the Adviser with respect to the
structure and design of the Trust, including without limitation, services related to the sale and
distribution of the Trust’s Shares, the Adviser shall pay a fee to you in the aggregate amount of
$[•] (the “Fee”). The Fee shall be paid on or before December [•], 2011. The Fee shall be
paid by wire transfer to the order of Xxxxx Fargo Securities, LLC. The Fee paid to you shall not
exceed [•]% of the total price to the public of the Firm Shares sold by the Trust in the Offering.
In the event the Offering does not proceed, you will not receive any fees other than accountable
expenses actually incurred; however, for the avoidance of doubt, accountable expenses actually
incurred may be payable to Xxxxx Fargo Securities, LLC solely pursuant to Section 7(l) of the
Underwriting Agreement.
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 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 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 Trust’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).
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 advisers).
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6. Assignment. This Agreement may not be assigned by any party without 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 or other
electronic transmission that accurately depicts a manual signature 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: | ||||
| Title: | ||||
| Agreed and Accepted: | ||||
| XXXXX FARGO SECURITIES, LLC | ||||
By: |
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| Title: | ||||
Indemnification Agreement
November [•], 2011
Xxxxx Fargo Securities, LLC
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
In connection with the engagement of Xxxxx Fargo Securities, LLC (the “Bank”) to
assist the undersigned, BlackRock Advisors, LLC (the “Company”), with respect to the
matters set forth in the Structuring Fee Agreement dated November [•], 2011 among 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 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. 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. 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 to so 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
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the relative benefits received or sought to be received by the Company and its stockholders
and the BlackRock Utiliy and Infrastructure Trust (the “Trust”), 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 the
Trust 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 the Trust, 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 the Company or its
stockholders or the Trust, 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, bad faith or willful
misconduct of the Bank in performing the services that are the subject of the Agreement.
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 CONSENT 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
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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.
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 MAY BE ENFORCED IN ANY OTHER COURTS TO THE JURISDICTION OF WHICH THE COMPANY 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: | ||||
| XXXXX FARGO SECURITIES, LLC | ||||
By: |
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| Title: | ||||
[Indemnification Agreement]
