STRUCTURING FEE AGREEMENT
Exhibit (h)(4)
November [•], 2011
Xxxxxx Xxxxxxx & Co. LLC
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
This agreement is between BlackRock Advisors, LLC (the “Company”) and Xxxxxx Xxxxxxx &
Co. LLC (“Xxxxxx Xxxxxxx”) with respect to the BlackRock Utility and Infrastructure Trust
(the “Trust”).
1. Fee. (a) In consideration of services to the Company relating to, but not limited
to, the design and structuring of, and marketing assistance with respect to, the Trust and the
distribution of its common shares of beneficial interest, par value $0.001 (the “Shares”),
including without limitation, views from an investor market and distribution perspective on (i)
marketing issues with respect to the Trust’s investment policies and proposed investments and (ii)
the overall marketing and positioning thesis for the Trust’s initial public offering, the Company
shall pay a fee to Xxxxxx Xxxxxxx calculated at [•]% of the aggregate price to the public of the
Shares sold by Xxxxxx Xxxxxxx in the Trust’s initial public offering (the “Offering”)
(including any Shares over-allotted by Xxxxxx Xxxxxxx in the Offering regardless of whether the
over-allotment option in the Offering is exercised), equal to $[•] (the “Fee”). The Fee
paid to Xxxxxx Xxxxxxx shall not exceed [•]% of the total price to the public of the Shares sold by
the Trust in the Offering. For purposes of this paragraph (a), the number of Shares sold by Xxxxxx
Xxxxxxx shall be deemed to include one half of the number of Shares sold by Xxxxxx Xxxxxxx Xxxxx
Xxxxxx LLC, and Citigroup Global Markets Inc. shall be deemed to have sold the other half.
(b) The Company shall pay the Fee to Xxxxxx Xxxxxxx after the closing of the purchase and sale
of the Shares pursuant to the principal underwriting agreement (the “Underwriting
Agreement”) and on or before December [•], 2011 by wire transfer to the order of Xxxxxx
Xxxxxxx. The Company acknowledges that the Fee is in addition to any compensation Xxxxxx Xxxxxxx
earns in connection with its role as an underwriter to the Trust in its initial offering, which
underwriting services are distinct from and in addition to the marketing and structuring services
described above.
2. Term. This Agreement shall terminate upon payment of the entire amount of the Fee,
as specified in Section 1 hereof (except as provided in Section 4) or upon the termination of the
Underwriting Agreement without the Shares having been delivered and paid for. If this Agreement is
terminated, the
Company shall reimburse Xxxxxx Xxxxxxx only for its accountable out-of-pocket expenses
actually incurred in connection with this Agreement.
3. Indemnification. The Company 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. Confidential Advice. None of any advice rendered by Xxxxxx Xxxxxxx to the Company
or any communication from Xxxxxx Xxxxxxx in connection with the services performed by Xxxxxx
Xxxxxxx pursuant to this Agreement will be quoted or referred to orally or in writing, or
reproduced or disseminated, by the Company or any of its affiliates or any of their agents to any
third-party, without Xxxxxx Xxxxxxx’x prior written consent (which consent shall not be
unreasonably withheld, conditioned or delayed), except (i) the Company may disclose the foregoing
to any regulatory authority in response to a regulatory proceeding, process, inquiry or request, so
long as the Company gives Xxxxxx Xxxxxxx prompt notice, as reasonably practicable under the
circumstances, thereof unless in the opinion of the Company’s counsel it is not legally able to do
so, (ii) to the extent otherwise required by law, judicial process or applicable regulation (after
consultation with, and approval (not to be unreasonably withheld, conditioned or delayed) as to
form and substance by, Xxxxxx Xxxxxxx and its counsel, unless in the opinion of the Company’s
counsel it is not legally able to so consult) and (iii) to the Trust and its officers and trustees
and their legal counsel, auditors and other advisors. This confidentiality provision will
terminate eighteen months from the date first written above.
5. Not an Investment Adviser. The Company acknowledges that Xxxxxx Xxxxxxx is 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
Xxxxxx Xxxxxxx, and Xxxxxx Xxxxxxx is 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
Company’s engagement of Xxxxxx Xxxxxxx is not intended to confer rights upon any person (including
the Trust or any shareholders, employees or creditors of the Company or the Trust) not a party
hereto as against Xxxxxx Xxxxxxx or its affiliates, or their respective directors, officers,
employees or agents, successors, or assigns.
6. Not Exclusive. Nothing herein shall be construed as prohibiting Xxxxxx Xxxxxxx or
its affiliates from acting as an underwriter or financial advisor or in any other capacity for any
other persons (including other registered
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investment companies or other investment managers). Neither this Agreement nor the
performance of the services contemplated hereunder shall be considered to constitute a partnership,
association or joint venture between Xxxxxx Xxxxxxx and the Company. In addition, nothing in this
Agreement shall be construed to constitute Xxxxxx Xxxxxxx as the agent or employee of the Company
or the Company as the agent or employee of Xxxxxx Xxxxxxx, and neither party shall make any
representation to the contrary. It is understood that Xxxxxx Xxxxxxx is engaged hereunder solely
to provide the services described above to the Company and that Xxxxxx Xxxxxxx is not acting as an
agent or fiduciary of, and Xxxxxx Xxxxxxx shall not have any duties or liability to, the current or
future partners, members or equity owners of the Company or any other third party in connection
with its engagement hereunder, all of which are hereby expressly waived to the extent the Company
has the authority to waive such duties and liabilities. For the avoidance of doubt, it is
acknowledged and agreed that the Company may pay compensation of any kind to any other person for
services the same as, or similar to, the services provided by Xxxxxx Xxxxxxx hereunder.
7. Assignment. This Agreement may not be assigned by either 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.
9. Governing Law; Consent to Jurisdiction; WAIVER OF JURY TRIAL. This Agreement and
any claim, counterclaim, dispute or proceeding of any kind or nature whatsoever arising out of or
in any way relating to this Agreement (“Claim”), directly or indirectly, shall be governed
by and construed in accordance with the internal laws of the State of New York. 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 (and of the appropriate appellate courts therefrom), which courts shall have
exclusive jurisdiction over the adjudication of such matters except as provided below. Each of the
parties hereby irrevocably consents to the jurisdiction of such courts (and of the appropriate
appellate courts therefrom) in any such Claim and irrevocably waives, to the fullest extent
permitted by law, any objection that it may now or hereafter have to the laying of the venue of any
such Claim in any such court or that any such Claim brought in any such court has been brought in
an inconvenient forum. Process in any such Claim may be served on any party anywhere in the world,
whether within or without the jurisdiction of any such court. Without limiting the foregoing, each
party agrees that service of process on such party as provided in Section 11 shall be deemed
effective service of process on such party to the extent consistent with applicable laws. EACH OF
XXXXXX
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XXXXXXX 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 OF XXXXXX XXXXXXX 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 XXXXXX XXXXXXX AND THE COMPANY, AS THE CASE MAY BE, AND MAY BE ENFORCED
IN ANY OTHER COURTS TO THE JURISDICTION OF WHICH XXXXXX XXXXXXX OR THE COMPANY ARE OR MAY BE
SUBJECT, BY SUIT UPON SUCH JUDGMENT.
10. Entire Agreement. This Agreement (including the attached Indemnification
Agreement) embodies the entire agreement and understanding between the parties hereto and
supersedes all prior agreements and understandings relating to the subject matter hereof. If any
provision of this Agreement is determined to be invalid or unenforceable in any respect, such
determination will not affect such provision in any other respect or any other provision of this
Agreement, which will remain in full force and effect.
11. Notices. All notices required or permitted to be sent under this Agreement shall
be sent, if to the Company:
BlackRock Advisors, LLC
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: [•]
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: [•]
or if to Xxxxxx Xxxxxxx:
Xxxxxx Xxxxxxx & Co. LLC
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
or such other name or address as may be given in writing to the other parties. Any notice shall be
deemed to be given or received on the third day after deposit by certified U.S. mail, postage
prepaid, or when actually received, whether by hand, express delivery service or facsimile
transmission, whichever is earlier.
12. 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
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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.
| Very truly yours, BLACKROCK ADVISORS, LLC |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
Accepted and agreed to as of
the date first above written:
the date first above written:
| XXXXXX XXXXXXX & CO. LLC |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
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INDEMNIFICATION AGREEMENT
November [•], 2011
Xxxxxx Xxxxxxx & Co. LLC
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
In connection with the engagement of Xxxxxx Xxxxxxx & Co. LLC (“Xxxxxx Xxxxxxx”) to
advise and assist the undersigned (together with its affiliates and subsidiaries, referred to as
the “Company”) with the matters set forth in the Structuring Fee Agreement dated November
[•], 2011 between the Company and Xxxxxx Xxxxxxx (the “Structuring Fee Agreement”), in the
event that Xxxxxx Xxxxxxx 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) with respect to the services performed pursuant to and in accordance with
the Structuring Fee Agreement, including, without limitation, related services and activities prior
to the date of the Structuring Fee Agreement, the Company has agreed to indemnify and hold harmless
Xxxxxx Xxxxxxx and Xxxxxx Xxxxxxx’x affiliates and their respective officers, directors, employees
and agents and each other person, if any, controlling Xxxxxx Xxxxxxx or any of Xxxxxx Xxxxxxx’x
affiliates (Xxxxxx Xxxxxxx and each such other person being an “Indemnified Person”) from
and against any losses, claims, damages or liabilities related to, arising out of or in connection
with the activities (the “Activities”) performed by any Indemnified Person in connection
with, or arising out of, or based upon, the Structuring Fee Agreement and/or any action taken by
any Indemnified Person in connection therewith (including, without limitation, any presentation
given by the Company and an Indemnified Person relating to the common shares of beneficial
interest, par value $0.001 per share (the “Shares”) of BlackRock Utility and Infrastructure
Trust (the “Trust”)), and will reimburse each Indemnified Person for all expenses
(including fees and expenses of counsel) as they are incurred in connection with investigating,
preparing, pursuing or defending any claim, suit, action, proceeding, investigation or inquiry
related to, arising out of or in connection with the Activities, whether or not pending or
threatened and whether or not any Indemnified Person is a party. The Company will not, however, be
responsible for any losses, claims, damages, liabilities (or expenses relating thereto) that are
finally judicially determined to have resulted from the bad faith or gross negligence of any
Indemnified Person. The Company also agrees that no Indemnified Person shall have any liability
(whether direct or indirect, in contract or tort or otherwise) to the Company for or in connection
with the Activities, except for any such liability for losses, claims, damages or liabilities
incurred by the Company that are finally judicially determined to have resulted from the bad faith
or gross negligence of such Indemnified person.
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Notwithstanding the foregoing, in no event shall the Company be responsible for any losses,
claims, damages or liabilities to any Indemnified Person arising from any such claim, suit, action,
proceeding, investigation or inquiry in excess of the gross proceeds received by the Trust from the
initial public offering of the Shares of the Trust (the “Offering”); provided, however,
that the Company shall, as set forth above, indemnify and be responsible for, regardless of the
gross proceeds received by the Trust from the Offering, all expenses (including fees and expenses
of counsel) incurred in connection with investigating, preparing, pursuing or defending any claim,
suit, action, proceeding, investigation or inquiry related to, arising out of or in connection with
the Activities, whether or not pending or threatened and whether or not any Indemnified Person is a
party, as set forth above.
The Company will not, without Xxxxxx Xxxxxxx’x prior written consent, settle, compromise,
consent to the entry of any judgment in or otherwise seek to terminate any claim, suit, action,
proceeding, investigation or inquiry in respect of which indemnification may be sought hereunder
(whether or not any Indemnified Person is a party thereto) unless such settlement, compromise,
consent or termination includes a release of each Indemnified Person from any liabilities arising
out of such claim, suit, action, proceeding, investigation or inquiry. No Indemnified Person
seeking indemnification, reimbursement or contribution under this agreement (the
“Indemnification Agreement”) will, without our prior written consent, settle, compromise,
consent to the entry of any judgment in or otherwise seek to terminate any claim, suit, action,
proceeding, investigation or inquiry referred to in the preceding paragraph.
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
(including the net proceeds from the Shares sold by Xxxxxx Xxxxxxx in the Offering before deducting
expenses) and its partners and affiliates and other constituencies, on the one hand, and Xxxxxx
Xxxxxxx, on the other hand, in the matters contemplated by the Structuring Fee 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 partners and
affiliates and other constituencies, 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 partners 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 or paid or contemplated to be received or paid by the Company or its
partners or affiliates and other constituencies, as the case may be, as a result of or
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in connection with the transaction (whether or not consummated) for which Xxxxxx Xxxxxxx has
been retained to perform financial services bears to the fees paid to Xxxxxx Xxxxxxx under the
Structuring Fee Agreement; provided that in no event shall the Company contribute less than the
amount necessary to assure that Xxxxxx Xxxxxxx is not liable for losses, claims, damages,
liabilities and expenses in excess of the amount of fees actually received by Xxxxxx Xxxxxxx
pursuant to the Structuring Fee 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 Xxxxxx Xxxxxxx, on the other hand.
This Indemnification Agreement, together with the Structuring Fee Agreement, any
contemporaneous written agreements and any prior written agreements (to the extent not superseded
by this agreement) that relate to the Offering of the Shares, represents the entire agreement
between the Company and the Indemnified Parties with respect to the structuring fee paid to Xxxxxx
Xxxxxxx under the Structuring Fee Agreement.
The Company acknowledges that in connection with the Offering of the Shares: (i) Xxxxxx
Xxxxxxx has acted at arms length, is not an agent of, and owes no fiduciary duties to, the Company,
the Trust or any person affiliated with the Trust or the Company, (ii) Xxxxxx Xxxxxxx owes the
Company only those duties and obligations set forth in this Indemnification Agreement and (iii)
Xxxxxx Xxxxxxx may have interests that differ from those of the Company. The Company waives to the
full extent permitted by applicable law any claims any of the Company, the Trust or any person
affiliated with the Trust or the Company may have against Xxxxxx Xxxxxxx arising from an alleged
breach of fiduciary duty in connection with the offering of the Shares.
The provisions of this Indemnification Agreement shall apply to the Activities and any
modification thereof and shall remain in full force and effect regardless of any termination or the
completion of Xxxxxx Xxxxxxx’x services under the Structuring Fee Agreement.
This Indemnification Agreement may not be assigned by either party without prior written
consent of the other party. No provision of this Indemnification Agreement may be amended or
waived except by an instrument in writing signed by the parties hereto. This Indemnification
Agreement and any claim, counterclaim, dispute or proceeding of any kind or nature whatsoever
arising out of or in any way relating to this Indemnification Agreement (“Claim”), directly
or indirectly, shall be governed by and construed in accordance with the internal laws of the State
of New York. 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
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Court for the Southern District of New York (and of the appropriate appellate courts
therefrom), which courts shall have exclusive jurisdiction over the adjudication of such matters
except as provided below. Each of the parties hereby irrevocably consents to the jurisdiction of
such courts (and of the appropriate appellate courts therefrom) in any such Claim and irrevocably
waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to
the laying of the venue of any such Claim in any such court or that any such Claim brought in any
such court has been brought in an inconvenient forum. Process in any such Claim may be served on
any party anywhere in the world, whether within or without the jurisdiction of any such court.
Without limiting the foregoing, each party agrees that service of process on such party as provided
in Section 11 of the Structuring Fee Agreement shall be deemed effective service of process on such
party to the extent consistent with applicable laws. EACH OF XXXXXX XXXXXXX 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 INDEMNIFICATION AGREEMENT. EACH OF XXXXXX
XXXXXXX AND THE COMPANY AGREES THAT A FINAL JUDGMENT IN ANY PROCEEDING OR CLAIM ARISING OUT OF OR
IN ANY WAY RELATING TO THIS INDEMNIFICATION AGREEMENT BROUGHT IN ANY SUCH COURT SHALL BE CONCLUSIVE
AND BINDING UPON XXXXXX XXXXXXX AND THE COMPANY, AS THE CASE MAY BE, AND MAY BE ENFORCED IN ANY
OTHER COURTS TO THE JURISDICTION OF WHICH XXXXXX XXXXXXX OR THE COMPANY ARE OR MAY BE SUBJECT, BY
SUIT UPON SUCH JUDGMENT.
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This Indemnification 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 Indemnification Agreement by facsimile transmission
shall be effective as delivery of a manually executed counterpart hereof.
| Very truly yours, BLACKROCK ADVISORS, LLC |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| Accepted and agreed to as of the date first above written: | ||||
| XXXXXX XXXXXXX & CO. LLC | ||||
By: |
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| Title: | ||||
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