AMENDED AND RESTATED BLACKROCK DISTRIBUTION SERVICES AND SALES SUPPORT SERVICES AND SERVICES FEE AGREEMENT FOR CLOSED-END FUNDS
Exhibit
99.h(2)(vi)
EXECUTION
VERSION
Service
Organization Name: Xxxxxx Xxxxxxx & Co.
Incorporated
AMENDED
AND RESTATED BLACKROCK
DISTRIBUTION
SERVICES AND SALES SUPPORT SERVICES AND SERVICES
FEE
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 above 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 (“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 to time
beneficially own Shares.
“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) forwarding reports of a Fund and other information to
Clients; (v) receiving, tabulating and transmitting proxies; and (vi) 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. 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
1
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 inconsistent 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 be responsible
for resolution of problems or discrepancies in their
accounts. 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 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.
(ii) In
consideration of the services 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.
(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). 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. BII shall promptly advise Service Organization of such
suspension or withdrawal of the sale of Shares.
(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.
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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, annual 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 January 15,
2009. 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 as to any class of Shares of any Fund and as to any
Fund, without penalty, upon liquidation of that class of Shares or liquidation
of that Fund 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 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 Investment Company Act of 1940 (“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 will provide, upon reasonable request, information to BII regarding
specific material compliance deficiencies. 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
3
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 is a securities broker-dealer registered with and subject to
regulation by the SEC. Service Organization is a member of various
self-regulatory organizations, including (but not limited to) NYSE Regulation
and FINRA. Service Organization certifies that it has policies,
procedures and internal controls in place that are reasonably designed to comply
with all anti-money laundering laws and regulations applicable to it, including
applicable provisions of the USA PATRIOT Act of 2001 and the regulations
administered by the U.S. Department of the Treasury’s Office of Foreign Assets
Control.
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.
Section
14. The parties hereby incorporate by reference the terms of the Rule
22c-2 Shareholder Information Agreement between BlackRock Investments, Inc.
and Service Organization dated February 2, 2009.
Section
15. This Agreement may be amended by either BII and Service
Organization by written amendment signed by both parties. This
Agreement may be assigned by BII to any affiliate of BII, provided that such
affiliate is registered with FINRA. This Agreement may be assigned by
Service Organization, to any affiliate, provided such affiliate is registered
with FINRA. Service Organization will provide notice to BII of such
assignment.
Section
16. 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 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. 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. BII
shall not use any name, logo, trade or service xxxx, or any other proprietary
designations of Service Organization in advertising, marketing or other
materials without Service Organization’s prior written
consent. BII may not
furnish to Service Organization’s sales force or clients any sales literature,
marketing or other promotional information or materials without Service
Organization’s prior written consent. BII agrees not to
distribute any Sales Materials (other than copies of the then current
prospectus) to any of Service Organization’s employees,
4
sales
offices or clients unless the distribution of such materials has been approved
in writing by Service Organization’s Mutual Fund Department. Sales
Materials should be sent a reasonable time period prior to their expected date
of distribution to: The Relationship Management Group within the
Consulting Services Department, Xxxxxx Xxxxxxx or their designee, 0000
Xxxxxxxxxxx Xxx., Xxxxxxxx, XX 00000. In approving such materials for
distribution within Service Organization’s offices or through Service
Organization’s sales offices to customers, Service Organization assumes no
responsibility or liability for the representations or any omissions contained
in any Sales Materials nor for representations or any omissions contained in the
prospectus or statement of additional information relating to the
Funds. For purposes of this Agreement, “Sales Material” will include,
without limitation, promotional materials, sales literature, advertisements,
press releases, announcements, circulars, research reports, market letters,
performance reports or summaries, form letters, posters, signs and other similar
materials, whether in print, hypertext, video, audio or other media, and any
items derived from the foregoing, and including sales materials intended for
wholesale use (i.e.,
broker/dealer use only) or retail use.
Notwithstanding the foregoing, Service
Organization acknowledges its receipt and approval of Sales Material submitted
by BII to Xxx Xxxxxxxxx of the Xxxxxx Xxxxxxx Product Development Group prior to
January __, 2009.
Section
18. (i) Each party acknowledges
that it or its employees may, in the course of performing its responsibilities
under this Agreement, receive information from the other party or may come into
possession of information that the other party is required to protect under
Title V of the Xxxxx-Xxxxx-Xxxxxx Act of 1999 (“Privacy Act”). For purposes of
this paragraph, “Confidential Information” shall mean information proprietary to
a party and/or which a party is obligated to protect under the Privacy Act or
which is reasonably designated in writing as such by a party’s personnel, which
the other party receives or is provided access to in the course of the
activities contemplated by this Agreement, including, without limitation,
customer information, nonpublic personal information including “personally
identifiable information” about clients or customers, price lists, pricing
policies and other financial information which is proprietary to or confidential
to the other party, its affiliates, customers or to third parties to whom the
other party owes a duty of confidentiality. Each party shall hold such
Confidential Information in strict confidence and shall not copy, reproduce,
sell, assign, license, market, transfer or otherwise dispose of, give or
disclose such Confidential Information to third parties or use such Confidential
Information for any purposes whatsoever other than as contemplated in connection
with the performance of its obligations under this Agreement and shall advise
each of its employees who may be exposed to such Confidential Information of
their obligations to keep such information confidential. Nothing
contained herein shall prohibit a party from disclosing Confidential Information
in order to comply with any law, rule, regulation or order, provided, however,
that, if a party is required in a judicial or governmental proceeding to
disclose any such Confidential Information, then said party shall notify the
party whose Confidential Information is to be disclosed in writing as soon as
possible so that the other party may either seek an appropriate protective order
or relief, or waive the provisions of this subsection.
For
the purposes of this Agreement, “Confidential Information” shall include but not
be limited to communications (written or otherwise) about a party’s business
plan, sales force, strategic plan, data, models, third party relationships,
processes, development plans, customer names and other information relating to
customers, price lists, pricing policies, financial information, documentation
and any and all other information about either party that may be disclosed or
revealed during the course of any conversations, correspondence or other
dealings between the parties.
Notwithstanding
the foregoing, Confidential Information shall not include information which is
(i) in or becomes part of the public domain other than by disclosure by a party
in
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violation
of this Agreement, (ii) demonstrably known to a party before the execution of
this Agreement, or (iii) independently developed by a party outside of this
Agreement from sources that were not subject to any contractual or statutory
requirement to maintain the confidentiality of such information or (iv)
rightfully obtained by a party from third parties.
(ii) The
provisions of this Section 18 shall survive the termination of this
Agreement.
Section
19. (i) Except to the extent specifically set forth in
this Agreement, neither party assumes any responsibility hereunder, and will not
be liable to the other (and Xxxxxx Xxxxxxx & Co. Incorporated will not be
liable to any Fund or any Affiliate) for any damage, loss of data, delay or any
other loss whatsoever caused by events beyond its reasonable
control.
(ii) Fund
Party shall indemnify, defend and protect Xxxxxx Xxxxxxx & Co. Incorporated
and each director, officer, employee, shareholder, agent and Affiliate of Xxxxxx
Xxxxxxx & Co. Incorporated and hold Xxxxxx Xxxxxxx & Co. Incorporated
and each such director, officer, employee, shareholder, agent and Affiliate
harmless from and against any and all claims, demands, actions, losses, damages,
liabilities, costs, charges, reasonable counsel fees and expenses of any nature
(“Losses”) it or they incur arising out of: (i) any material inaccuracy or
material omission in any Prospectus, Statement, registration statement, annual
report, proxy statement or other publicly disseminated material of any Fund, or
any advertising or promotional material generated or approved by any Fund or
Fund Party or based on information published or generated by Fund Party or any
Fund or Affiliate of the Fund; (ii) any material breach by Fund Party of any
representation, warranty, covenant or agreement contained in this Agreement or
the Operating Procedures (except to the extent such Losses result from Xxxxxx
Xxxxxxx & Co. Incorporated’s material breach of this Agreement, willful
misconduct, or gross negligence); or (iii) any
action taken or omitted to be taken by Fund or Fund Party pursuant to this
Agreement (except to the extent such Losses result from Xxxxxx Xxxxxxx & Co.
Incorporated’s material breach of this Agreement, willful misconduct, or gross
negligence).
(iii) Xxxxxx
Xxxxxxx & Co. Incorporated shall indemnify, defend and protect Fund Party,
each Fund, each trust or corporation of which a Fund is a series and each of
their respective directors, trustees, controlling persons, officers, employees,
and agents, and hold each Fund, Fund Party, each such trust or corporation, and
each such director, trustee, controlling person, officer, employee and agent
harmless from and against any and all Losses it or they incur arising out of:
(i) any material inaccuracy or material omission in any advertising or
promotional material generated by Xxxxxx Xxxxxxx & Co. Incorporated that is
not accurately derived from (a) the Prospectus, Statement, registration
statement, annual report, proxy statement or other publicly disseminated
material of any Fund provided to Xxxxxx Xxxxxxx & Co. Incorporated, or (b)
any advertising or promotional material generated by any Fund or Fund Party and
provided to Xxxxxx Xxxxxxx & Co. Incorporated, or (c) information published
or generated by Fund Party or any Fund or Affiliate of the Fund and provided to
Xxxxxx Xxxxxxx & Co. Incorporated; (ii) any material breach by Xxxxxx
Xxxxxxx & Co. Incorporated of any representation, warranty, covenant or
agreement contained in this Agreement or the Operating Procedures (except to the
extent such Losses result from Fund’s or Fund Party’s material breach of this
Agreement, willful misconduct, or gross negligence); or (iii) any action taken
or omitted to be taken by Xxxxxx Xxxxxxx & Co. Incorporated pursuant to this
Agreement (except to the extent such Losses result from Fund’s or Fund Party’s
material breach of this Agreement, willful misconduct, or gross
negligence).
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.
6
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.
XXXXXX XXXXXXX &
CO. INCORPORATED
Service
Organization Name
|
BLACKROCK
INVESTMENTS, INC.
|
|||||
0000
Xxxxxxxxxxx Xxxxxx
|
By:
|
|||||
Address
|
(Authorized
Officer)
|
|||||
Purchase
|
10577
|
|||||
City
|
State
|
Zip
Code
|
Name
|
|||
By:
|
Xxxxxxx
XxXxxxx
|
|||||
(Please
Print or Type)
|
Title
|
|||||
Signature
|
Date
|
|||||
Managing
Director
|
||||||
Title
|
||||||
Date
|
7
Schedule
A
List
of Applicable Funds under the Terms of this Agreement
8
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.
General
Shareholder Services – n/a
|
Distribution Services
and Sales Support Services1 --
n/a
|
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 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
|
|
____________
1 |
The range of these payments and the Service Organizations who are
receiving these payments are disclosed in the Fund’s prospectus or
Statement of Additional
Information.
|
9
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
|
10