File No. 811-8986
As filed with the Securities and Exchange Commission on May 22, 1995
U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM N-2
(X) REGISTRATION STATEMENT UNDER THE INVESTMENT COMPANY ACT
OF 1940
BLACKROCK FUND INVESTORS I
(Exact Name of Registrant as Specified in Charter)
345 PARK AVENUE
NEW YORK, NEW YORK 10154
(Address of Principal Executive Offices) (Zip Code)
(212) 754-5560
(Registrant's Telephone Number, including Area Code)
RALPH L. SCHLOSSTEIN, PRESIDENT
BLACKROCK ASSET INVESTORS
345 PARK AVENUE
NEW YORK, NEW YORK 10154
(Name and Address of Agent for Service)
Copies to:
RICHARD T. PRINS, ESQ.
SKADDEN, ARPS, SLATE, MEAGHER & FLOM
919 THIRD AVENUE
NEW YORK, NEW YORK 10022
BLACKROCK FUND INVESTORS I
FORM N-2
CROSS REFERENCE SHEET
Part A
Item No. Caption Prospectus Caption
1. Cover Page . . . . . . . . . Not Applicable
2. Inside Front and Outside Back
Cover Page . . . . . . . . . Not Applicable
3. Fee Table and Synopsis . . . Fee Table and
Synopsis; Expense
Information
4. Financial Highlights . . . . Not Applicable
5. Plan of Distribution . . . . Not Applicable
6. Selling Shareholders . . . . Not Applicable
7. Use of Proceeds . . . . . . . Not Applicable
8. General Description of the
Registrant . . . . . . . . . General Description
of the Registrant;
General; Investment
Objectives and
Policies; Risk
Factors
9. Management . . . . . . . . . Management; General
10. Capital Stock, Long-Term Debt,
and Other Securities . . . . Capital Stock, Long-
Term Debt, and Other
Securities; Capital
Stock; Long-Term
Debt; General;
Taxes; Outstanding
Securities;
Securities Ratings
11. Defaults and Arrears on Senior
Securities . . . . . . . . . Not Applicable
12. Legal Proceedings . . . . . . Not Applicable
13. Table of Contents of Statement
of Additional
Information . . . . . . . . . Not Applicable
Part B Statement of
Item No. Additional Infor-
mation Caption
14. Cover Page . . . . . . . . . Not Applicable
15. Table of Contents . . . . . . Not Applicable
16. General Information and
History . . . . . . . . . . . General Description
of the Registrant
17. Investment Objective and
Policies . . . . . . . . . . Not Applicable
18. Management . . . . . . . . . Management of the
Fund; Officers and
Directors
19. Control Persons and Principal
Holders of Securities . . . . Control Persons;
Affiliated
Subscriptions
20. Investment Advisory and Other
Services . . . . . . . . . . Management of the
Fund
21. Brokerage Allocation and Other
Practices. . . . . . . . Not Applicable
22. Tax Status . . . . . . . . . Taxation of the Fund
23. Financial Statements . . . . Not Applicable
Part C
Item No.
Information required to be included in Part C is set forth, under
the appropriate item so numbered, in Part C of this registration
statement.
INFORMATION PERTAINING TO BLACKROCK ASSET INVESTORS (THE "TRUST")
IS, WHERE REFERRED TO, INCORPORATED BY REFERENCE TO THE TRUST'S
FORM N-2 (THE "TRUST REGISTRATION STATEMENT") FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION CONCURRENTLY WITH THIS
REGISTRATION STATEMENT.
PART A
ITEM 1. COVER PAGE
Not Applicable.
ITEM 2. INSIDE FRONT AND OUTSIDE BACK COVER PAGE
Not Applicable.
ITEM 3. FEE TABLE AND SYNOPSIS
Annual Expenses
Management Fees* . . . . . . . . . . 1.25%
Interest Payments on Borrowed Funds . 0.01%
Other Expenses. . . . . . . . . . . . 0.17%
Total Annual Expenses . . . . . . . . 1.43%
1 3 5 10
year years years years
Example
You would pay the following
expenses on a $1,000 investment, $15 $45 $78 $171
assuming a 5% annual return:
The purpose of the preceding table is to assist the investor
in understanding the various costs and expenses that an investor
in BlackRock Fund Investors I (the "Fund") will bear directly or
indirectly, including expenses of BlackRock Asset Investors (the
"Trust"), in which the Fund will invest all of its assets. The
Fund's incremental annual expenses over those of the Trust are
anticipated to be 0.59%.
"Other Expenses" are based on estimated amounts for the
current fiscal year. The example above should not be considered
a representation of future expenses, which may be higher or
lower.
*The "Management Fee" is initially derived from aggregate
capital commitments rather than net assets and is modified after
the capital commitment period to being derived from weighted
average capital. Of the Management Fee, 0.75% is paid by the
Trust and 0.50% by the Fund. In certain circumstances, the Trust
also pays a performance fee, which is described in the Trust
Registration Statement filed with the SEC currently with this
registration statement. "Other Expenses" are based on estimated
amounts for the current fiscal year. The example above should
not be considered a representation of future expenses, which may
be higher or lower.
2. Not Applicable.
3. Not Applicable.
ITEM 4. FINANCIAL HIGHLIGHTS
Not Applicable.
ITEM 5. PLAN OF DISTRIBUTION
Not Applicable.
ITEM 6. SELLING SHAREHOLDERS
Not Applicable.
ITEM 7. USE OF PROCEEDS
Not Applicable.
ITEM 8. GENERAL DESCRIPTION OF THE REGISTRANT
8.1. General. The Fund was formed by its trustees as a business
trust under the laws of the State of Delaware on December 21,
1994, and is a non-diversified closed-end management investment
company. At the same time, the trustees thereof formed BlackRock
Fund Investors II and BlackRock Fund Investors III (collectively
with the Fund, the "Funds"), all three of which were formed
solely for the purpose of investing in the Trust and collectively
have more than 100 holders of their securities (excluding short-
term paper). The Funds have entered binding subscription
agreements with the Trust pursuant to a private placement, the
initial closing for which occurred on January 17, 1995.
Collectively, the Funds have obtained capital commitments
("Capital Commitments") in the form of subscription agreements
from investors, for approximately $513 million, of which the Fund has
obtained Capital Commitments of approximately $162 million. Each
subscription agreement obligates the investor to purchase up to a
specified aggregate dollar amount of shares of beneficial interest of
the Fund (each, a "Share" and collectively, the "Shares") or a specified
percentage of the aggregate Capital Commitments of all Funds.
The Fund has in turn executed a subscription agreement obligating
it to purchase the same aggregate dollar amount of shares of the
Trust as the aggregate amount of Capital Commitments in its
subscription agreements and will draw on its Capital Commitments
to the extent the Trust calls on such Fund's Capital Commitments
to the Trust.
During the commitment period, the Fund will draw down capital
from time to time to make investments in accordance with its
investment objective and policies and to fund its expenses. Each
capital call effected by the Fund will be expressed as a pro rata
percentage of each investor's undrawn Capital Commitment to the
Fund. Upon settlement of each such capital call and at each
subsequent closing to the extent that capital has been drawn down
on or prior to the date of such closing, the Fund will issue
Shares at net asset value ("NAV") per Share as calculated within
48 hours prior to issuance (exclusive of Sundays and holidays).
Unfunded Capital Commitments may be called by the Fund at any
time during the commitment period in any amount on not less than
14 days prior written notice except that investors who execute
subscription agreements after the initial closing will be subject
to draw down at the time that their subscription is accepted in
proportion to draw downs previously made with respect to prior
investors. Investors who fail to pay a capital call within 14
days after receiving a second notice from the Fund will be
subject to having their Shares repurchased, retired and canceled
by the Fund at 50% of the NAV of such Shares, and the Fund will
be subject to having that amount of its shares of the Trust
repurchased, retired and canceled by the Trust at the same
repurchase price as that paid by the Fund. Other than in
connection with the preceding sentence, the Fund will not be
permitted to purchase, redeem or otherwise acquire its shares.
The commitment period will expire on the third anniversary of the
initial closing; provided, however, that BlackRock Financial
Management, Inc. ("BlackRock" or the "Advisor"), upon approval by
holders of a majority of the Trust's shares, may extend the
commitment period for up to one additional year if (i) at least
50% of the Trust's capital commitments have been drawn down and
invested prior to such expiration date and (ii) the Advisor
determines, in its reasonable judgment, that sufficient
opportunities exist to deploy the unused capital commitments of
the Trust during the extension period.
8.2. Investment Objectives and Policies. The Fund will seek to
profit from the investment activities of the Trust which will
seek to achieve high total returns primarily from its investments
in subordinated commercial mortgage-backed securities ("CMBS")
and other investment securities and from the profits of its
wholly-owned affiliate, BlackRock Capital Finance L.P. ("BCF"),
and other mortgage affiliates, which will engage primarily in the
businesses of acquiring, pooling and repackaging performing
commercial mortgage loans as CMBS for distribution to the Trust
and a coinvestor in commercial real estate, and for sale in the
capital markets, and acquiring and working out distressed
commercial and residential mortgage loans.
Additional detail on the Trust's investment objectives and
policies is provided in the Trust Registration Statement filed
with the SEC concurrently with this registration statement.
8.3 Risk Factors. The Fund has the same risk factors as the
Trust, which are described in the Trust Registration Statement.
In addition, the Fund has outstanding notes (each, a "Note," and
collectively, the "Notes") which pay interest as described in
Item 10.2 below, the current rate on which is 8.45%. The effect
of this leverage upon the return to shareholders of the Fund will
be negligible.
ITEM 9. MANAGEMENT
1. General.
(a) Board of Trustees. The Trustees set broad policies for
the Fund and choose its officers. The Advisor manages the day-
to-day operations of the Fund and supplies officers to the Fund
for this purpose. The Trustees of the Fund shall consist at all
times of no less than seven (7) Trustees, no more than 60% of
whom are "interested persons" of the Fund, as defined in the
Investment Company Act of 1940 (the "1940 Act").
(b) Investment Advisor. The Advisor, BlackRock Financial
Management, Inc., is located at 345 Park Avenue, New York, New
York 10154. The Advisor currently serves as the investment
advisor to institutional and individual fixed income investors in
the U.S. and overseas through a number of funds and separately
managed accounts with combined total assets in excess of $27
billion.
Pursuant to an Investment Advisory Agreement (the "Advisory
Agreement"), the Fund has retained the Advisor to manage the
investment of its assets, to provide such investment research,
advice and supervision, in conformity with its investment
objective and policies, as may be necessary for the operations of
the Fund. The Advisory Agreement was approved by the Trustees on
December 21, 1994 and by the Fund's sole shareholder on March 30,
1995.
On June 16, 1994, the Advisor's predecessor's partners entered
into a definitive agreement to sell all of the interests in such
predecessor to PNC Bank, N.A., the eleventh largest bank in the
U.S. The transaction closed on February 28, 1995. In connection
with the acquisition, all of the Advisor's Managing Directors
signed long-term employment contracts with PNC Bank, N.A. and
continue to be responsible for managing the day-to-day affairs of
the Advisor, including carrying out its responsibilities with
respect to the Fund.
As compensation for its services rendered to the Fund, the
Advisor will be entitled to receive a Management Fee directly
from the Fund. The Management Fee payable by the Fund during and
after the commitment period shall be calculated and paid
semiannually in arrears, commencing on April 30, 1995, and will
be equal to the amount shown below.
During Commitment Period After Commitment Period
% of aggregate Capital % of weighted average capital
Commitments invested during the relevant period
0.50% 0.50%
The Trust will pay the Advisor both a base management fee and a
performance fee, which are described in the Trust Registration
Statement.
(c) Portfolio Management. The Fund's portfolio manager
will be Wesley R. Edens, who managed the commercial and non-
agency residential mortgage-backed securities businesses of
Lehman Brothers Inc. prior to joining the Advisor in October
1993.
(d) Administration Agreement. Under the Administration
Agreement with the Fund, State Street Bank & Trust Company
("State Street"), 1776 Heritage Drive, North Quincy, MA,
administers the Fund's corporate affairs subject to the
supervision of the Trustees and furnishes the Fund with office
facilities and ordinary clerical and bookkeeping services.
(e) Custodian, Transfer Agent, Dividend Disbursing Agent
and Registrar. State Street will serve as custodian for the
Fund's portfolio securities and cash and as Transfer Agent,
Dividend Disbursing Agent and Registrar for the shares, and in
those capacities, maintains certain financial and accounting
books and records pursuant to agreements with the Fund. The Fund
may also periodically enter into arrangements with other
qualified custodians with respect to certain types of securities
or other transactions. Transfer, dividend disbursing and
registrar functions have been delegated to and are being
performed by Boston Financial Data Services, Inc., an affiliate
of State Street.
(f) Expenses. The Advisory Agreement provides, among other
things, that the Advisor will bear all expenses of its employees
and overhead incurred in connection with its duties under the
Advisory Agreement, and the expense of services rendered by any
employee of the Advisor in such employee's capacity as a Trustee
or officer of the Fund.
The Advisory Agreement provides that the Fund will be responsible
for paying all of the expenses of its operations as outlined
below. These expenses consist of (a) the management fee; (b) the
fees and expenses of custodians, pricing services, accounting
systems, accounting agents and auditors, external administrators
and transfer and dividend disbursement agents, counsel, Trustees,
mortgage loan servicers and mortgage pool trustees, insurance,
taxes, any required filings and registrations, proxy expenses,
communications to shareholders, SEC examinations, capital
drawdowns, and registered agents; (c) litigation expenses
(provided that in the case of litigation expenses of indemnified
parties, such expenses will be borne by the Fund only to the
extent provided for under the terms of written indemnifications
provided to such parties by the Fund; and (d) such other expenses
as are approved from time to time by a majority of the Trustees
and a majority of the Investor Trustees.
In addition to the expenses listed above, the Fund will bear its
share of the organizational and offering expenses of the Trust,
the Funds and BCF, up to a maximum amount of $750,000 in the
aggregate. The Advisor will be responsible for any of these
expenses in excess of that amount.
ITEM 10. CAPITAL STOCK, LONG-TERM DEBT, AND OTHER SECURITIES
1. Capital Stock. The Fund is authorized to issue up to
200 million Shares of beneficial interest. The Shares have no
preemptive, conversion, exchange or redemption rights. Each
Share has equal voting, dividend, distribution and liquidation
rights. Shareholders of the Fund have cumulative voting rights
on the election of Trustees and are entitled to one vote per
share on all other matters subject to shareholder approval. When
issued against payment therefor, the Shares will be fully paid
and non-assessable. No person has any liability for liabilities
of the Fund by reason of owning Shares, although each person that
subscribes for Shares is liable for the full amount of such
subscription in accordance with and subject to the terms of the
related subscription agreement. Pursuant to the Declaration of
Trust of the Fund, the Fund is obligated to vote its shares of
the Trust in accordance with the instructions of its shareholders
on a pass-through basis.
The Fund's Shares will be transferable only (i) to investors who
qualify as "accredited investors" within the meaning of
Regulation D of the Securities Act of 1933 (the "1933 Act"), (ii)
if, after giving effect to the proposed transfer, neither the
Fund nor the Trust would be required to register such transfer or
any class of its securities under the securities laws of any
jurisdiction, and (iii) with the prior written consent of the
Fund, which will not be unreasonably withheld.
2. Long-Term Debt. The Fund has issued $64,000 in
principal amount of Notes in transactions not involving any
public offering of securities to qualified investors who have
represented that they have purchased the Notes for their own
account and with no intention of distributing the Notes in any
transaction that would violate any applicable securities law.
The Notes are unsecured obligations of the Fund and will not be
subordinated to any other indebtedness. The Notes were issued in
registered form without coupons in denominations of $1000 and
increments of $100. Principal and interest are payable by check
or wire to or upon the order of the registered holders of the
Notes. The Notes bear interest, based on their principal amount,
at a rate per annum equal to the sum of (i) the yield of the one-
year constant maturity Treasury reset annually as of November 1
of each year and (ii) 2.50% per annum. Interest on the Notes is
payable semiannually. Each noteholder may require the Fund to
purchase its Notes at par by notice within 60 days after the
annual interest rate reset on the Notes. The Notes are subject
to redemption at any time by the Fund and will mature upon the
dissolution of the Fund. The Notes are transferable under
essentially the same conditions as the Shares of the Fund as
described above.
3. General. None.
4. Taxes. The Fund and the Advisor will use their
respective best efforts to ensure that the Fund qualifies each
year and elects to be treated as a Regulated Investment Company
("RIC") for U.S. federal income tax purposes. In order to so
qualify, the Fund must satisfy certain tests regarding the nature
of its income and assets. Since, on the foregoing basis, the
Fund will qualify as a RIC and will distribute to its
shareholders at least 90% of its net investment income, the Fund
will not be subject to federal income tax on the income so
distributed. However, the Fund will be subject to corporate
income tax on any undistributed income. In addition, the Fund
will be subject to a non-deductible 4% excise tax on the amount
by which the income it distributes in any calendar year is less
than a required amount.
In general, all distributions attributable to the Fund's net
investment income will be taxable as ordinary income to
shareholders who are subject to U.S. income taxation. To the
extent that the Fund realizes net capital gains, the Fund intends
to distribute such gains at least annually and designate them as
capital gain dividends. Capital gain dividends are taxable as
long-term capital gains regardless of how long the Shares have
been held. Dividends distributed by the Fund will not be
eligible for the dividends received deduction in the hands of
corporate shareholders.
5. Outstanding Securities.
Amount
Outstanding
Exclusive of
Amount Shown
Amount Held by Under
Amount Registrant or Previous Column
Title of Class Authorized for its Account
Shares of 200 million None 6,700 shares*
Beneficial shares
Interest
Notes $500,000 None $64,000
________________
*In addition, the Fund has outstanding subscription agreements
pursuant to which its shareholders are obligated, subject to the
terms thereof, to acquire up to an additional $155,137,000 in
Shares at net asset value.
6. Securities Ratings. None.
ITEM 11. DEFAULTS AND ARREARS ON SENIOR SECURITIES
1. None.
2. None.
ITEM 12. LEGAL PROCEEDINGS
None.
ITEM 13. TABLE OF CONTENTS OF STATEMENT OF ADDITIONAL
INFORMATION
Not Applicable.
PART B
ITEM 14. COVER PAGE
Not Applicable.
ITEM 15. TABLE OF CONTENTS
Not Applicable.
ITEM 16. GENERAL INFORMATION AND HISTORY
The Fund has no history. See Item 8 - General Description
of the Registrant, for general information.
ITEM 17. INVESTMENT OBJECTIVE AND POLICIES
Additional detail on the Trust's investment objectives and
policies is provided in the Trust Registration Statement filed
with the SEC concurrently with this registration statement.
ITEM 18. MANAGEMENT
The following individuals are the officers and Trustees of the
Trust. A brief statement of their present positions and
principal occupations during the past five years is also
provided.
Position(s)
Name and Business Held with Principal Occupation(s)
Address Registrant During Past Five Years
Laurence D. Fink1,2 Chairman of Chairman and Director,
BlackRock Financial the Board of BlackRock
Management, Inc. Trustees
345 Park Avenue
New York, NY 10154
Wesley R. Edens1,2 Trustee and Managing Director,
BlackRock Financial Chief BlackRock; formerly
Management, Inc. Operating Managing Director, Lehman
345 Park Avenue Officer Brothers Inc. (investment
New York, NY 10154 banking)
John C. Deterding2,3 Trustee President, Deterding
Deterding Associates Associates (real estate
107 N. Waterview consultant), formerly,
Richardson, TX 75080 Senior Vice President and
General Manager, Commercial
Real Estate division,
General Electric Capital
Corporation; Chairman,
General Electric Real
Estate Investment Company,
and Director, GECC
Financial Corporation
Philip Halpern2,3 Trustee Chief Investment Officer,
Washington State Washington State Investment
Investment Board Board; formerly, Managing
2424 Heritage Court SW Director - Benefit
P.O. Box 40916 Investments, J.C. Penney
Olympia, WA 98504-0916 Corporation and Chief
Investment Officer, Public
Employee Retirement System
of Idaho
Michael E. Klehm2,3 Trustee Chief Investment Officer-
General Motors Motors Insurance
Investment Management Corporation, General Motors
Corporation Investment Management
767 Fifth Avenue Corporation; formerly,
New York, NY 10153 Director, Private Placement
Investments, General Motors
Investment Management
Corporation; formerly,
General Director, New York
Treasurer's Office, General
Motors Corporation
Donald G. Drapkin Trustee Vice Chairman and Director,
Revlon Group Inc. McAndrews & Forbes Holdings
35 East 62nd Street Inc. (diversified holding
New York, NY 10021 company), Revlon Group
Inc., Andrews Group Inc.,
Director, Revlon, Inc.,
Marvel Entertainment Group
Inc., The Coleman Company
(outdoor products)
James Grosfeld Trustee Consultant/Investor;
20500 Civil Center formerly, Chairman and
Drive, Suite 3000 Chief Executive Officer of
Southfield, MI 48076 PHM Corporation (home
building, mortgage banking
and finance)
Laurence E. Hirsch Trustee Chairman and CEO, Centex
Centex Corporation Corporation (construction
3333 Lee Parkway products)
Dallas, TX 75219
Kendrick R. Wilson, Trustee General Partner, Lazard
III Freres & Co.; formerly,
Lazard Freres & Co. President, Ranieri Wilson &
One Rockefeller Plaza Co. (investment banking)
33rd Floor
New York, NY 10022
Ralph. L. Schlosstein President President and Director,
BlackRock Financial BlackRock
Management, Inc.
345 Park Avenue
New York, NY 10154
Susan L. Wagner Secretary Managing Director,
BlackRock Financial BlackRock
Management, Inc.
345 Park Avenue
New York, NY 10154
Henry Gabbay Treasurer Chief Operating Officer and
BlackRock Financial Managing Director,
Management, Inc. BlackRock
345 Park Avenue
New York, NY 10154
John R. Herbert Vice President Principal, BlackRock;
BlackRock Financial formerly, Principal, Victor
Management, Inc. Capital Group (real estate
345 Park Avenue advisor)
New York, NY 10154
Robert I. Kauffman Vice President Principal, BlackRock;
BlackRock Financial formerly, Executive
Management, Inc. Director, Lehman Brothers
345 Park Avenue International (Europe) and
New York, NY 10154 Vice President, Lehman
Brothers
Erik P. Nygaard Vice President Principal, BlackRock;
BlackRock Financial formerly, Director, Nomura
Management, Inc. Securities International
345 Park Avenue and Vice President, Lehman
New York, NY 10154 Brothers
James Kong Asst. Principal, BlackRock;
BlackRock Financial Treasurer
Management, Inc.
345 Park Avenue
New York, NY 10154
J. Robert Small Asst. Principal and Controller,
BlackRock Financial Secretary BlackRock; formerly, Vice
Management, Inc. President, Blackstone Group
345 Park Avenue Holdings
New York, NY 10154
1 Trustees who are directors, officers or employees of the
Advisor
2 Trustees who may be deemed to be "interested persons" of
the Trust
3 Investor Trustee
Each Trustee (other than any Trustee who is a partner, director,
officer or employee of the Advisor or any affiliate thereof or
successor thereto) shall receive the following amounts for
serving as a Trustee: (i) $6,000 per year, (ii) $1,000 per
physical meeting, and (iii) $125 per telephonic meeting, subject
to a cap of $500 per year for all telephonic meetings of the
Boards of Trustees of the Funds and the Trust. The Fund also
pays (together with the other Funds and the Trust) each Trustee
(whether or not such person is a partner, director, officer or
employee of the Advisor or any affiliate thereof or successor
thereto) for all out-of-pocket expenses of such Trustee incurred
in attending each such meeting. Inasmuch as each Trustee is also
a Trustee of the other Funds and the Trust, it is anticipated
that the aggregate annual compensation to each Trustee for
service to investment companies in the BlackRock complex will be
approximately $42,000, with the exception of Mr. Grosfeld who
will receive approximately $204,000 for his combined service as a
director of the Funds and the Trust and of each of the other
investment companies in the BlackRock complex. Each Trustee is
entitled to one vote on each matter requiring the Trustees to
take any action or consent to the taking of any action. However,
if the aggregate funded and unfunded Capital Commitment of a
shareholder that has designated an Investor Trustee is less than
8.33% of the Trust's aggregate capital commitments, such Investor
Trustee will not be eligible to vote in his or her capacity as an
Investor Trustee on any matter that requires the approval of a
majority of Investor Trustees, although such Investor Trustee
will continue to be eligible to vote in his or her capacity as a
Trustee and as an Investor Trustee on all matters that require
the approval of the Board and all of the Investor Trustees,
respectively. In all cases in which a Trustee vote is required,
only the vote of the Trustees present (whether in person or by
telephone) and eligible to vote with respect to such matter will
be taken into consideration in determining whether consent has
been given or withheld, except no amendment may be made which
amends, alters, changes or repeals any voting requirement
applicable to Investor Trustees or Trustees, unless the proposed
amendment, alteration, change or repeal receives the affirmative
approval in the form of a vote of the Investor Trustees (whether
or not present in the case of a provision requiring approval by
all Investor Trustees), and/or, Trustees, as the case may be, so
affected. On each matter on which Trustees vote, each Trustee
may give or withhold his or her vote as he or she deems
appropriate in his or her sole discretion.
Messrs. Fink, Gabbay and Grosfeld also serve in the same capacity
as a director and/or officer, as the case may be, of each of the
other closed end investment companies in the BlackRock fund
complex except that Mr. Schlosstein is also a director of each of
such other investment companies. In addition, the Advisor serves
as investment sub-advisor to The BlackRock Government Income
Trust, the Dean Witter Premier Income Trust and the Smith Barney
Shearson Adjustable Rate Government Income Fund, each of which
are open-end management investment companies. The Advisor also
acts as an advisor to BlackRock Institutional Trust, an open end
investment company consisting of sixteen investment portfolios.
Mr. Grosfeld additionally serves as a director and officer of
such Trust.
On June 16, 1994, the Advisor's predecessor's partners entered
into a definitive agreement to sell all of the interests in such
predecessor to PNC Bank, N.A., the eleventh largest bank in the
U.S. The transaction closed on February 28, 1995. In connection
with the acquisition, all of the Advisor's Managing Directors
signed long-term employment contracts with PNC Bank, N.A. and
continue to be responsible for managing the day-to-day affairs of
the Advisor, including carrying out its responsibilities with
respect to the Fund.
ITEM 19. CONTROL PERSONS AND PRINCIPAL HOLDERS OF SECURITIES
1. None.
2. (a) General Reinsurance Corporation, which has offices at
695 E. Main Street, Stamford, CT 06904, owns and has committed to
acquire approximately 12.4% of the Shares;
(b) Keyport Life Insurance Company, which has offices at
125 High Street, Boston, MA 02110, owns and has committed to
acquire approximately 12.4% of the Shares;
(c) Unisys Corporation Master Trust, c/o Harris Trust
and Savings Bank, which has offices at 111 West Monroe Street, 5E,
Chicago, IL 60603, owns and has committed to acquire approximately
9.3% of the Shares;
(d) Chrysler Corporation Master Retirement Trust, c/o
Bankers Trust Company, which has offices at 280 Park Avenue, 15E,
New York, NY 10017, owns and has committed to acquire approximately
15.5% of the Shares;
(e) Honeywell Master Trust; c/o Boston Safe Deposit
and Trust Company, which has offices at One Cabot Road (028-004G),
Medford, MA 02155, owns and has committed to acquire approximately
9.3% of the Shares;
(f) Board of Pension of the Evangelical Lutherans
Church in America, which has offices at 800 Marquette Avenue,
Suite 1050, Minneapolis, MN 55402, owns and has committed to
acquire approximately 5.1% of the Shares.
3. None.
ITEM 20. INVESTMENT ADVISORY AND OTHER SERVICES
1-6. See Item 9 - Management.
7. Deloitte & Touche, 2 World Financial Center, New York,
New York 10281-1431.
8. None.
ITEM 21. BROKERAGE ALLOCATION AND OTHER PRACTICES
1. Not Applicable.
2. None.
3. Not Applicable.
4. None.
5. None.
ITEM 22. TAX STATUS
The following discussion is based on the advice of Skadden, Arps,
Slate, Meagher & Flom and, except as otherwise indicated,
reflects provisions of the Internal Revenue Code of 1986, as
amended (the "Code") as of the date of this registration
statement. In addition, the following discussion is a general
summary of certain of the current federal income tax laws
regarding the Fund and investors in the Shares, and does not
purport to deal with all of the federal income tax consequences
or any of the state or other tax considerations applicable to the
Fund, or to all categories of investors, some of which may be
subject to special rules. Prospective investors should consult
their own tax advisors regarding the federal, state, local,
foreign and other tax consequences to them of investments in the
Fund, including the effects of any changes, including proposed
changes, in the tax laws.
Taxation of the Fund. The Fund and the Advisor will use their
respective best efforts to ensure that the Fund qualifies each
year and elects to be treated as a RIC for federal income tax
purposes. In order to so qualify, the Fund must, among other
things, (a) derive at least 90% of its gross income from
dividends, interest, payments with respect to loans of securities
and gains from the sale or other disposition of securities or
certain other related income ("Qualified Income"); (b) generally
derive less than 30% of its gross income from gains from the sale
or other disposition of securities and certain other investments
held for less than three months (the "Short Term Profit Rule");
and (c) diversify its holdings so that at the end of each fiscal
quarter (i) at least 50% of the value of the Fund's assets is
represented by cash, U.S. government securities, securities of
other RICs, and other securities which, with respect to any one
issuer, do not represent more than 5% of the value of the Fund's
assets nor more than 10% of the voting securities of such issuer,
and (ii) not more than 25% of the value of the Fund's assets is
invested in securities of any one issuer other than U.S.
government securities or the securities of other RICs (the
"Diversification Requirements"). With respect to qualification
under the foregoing tests of several aspects of the Trust's
organization and investment, the Fund is relying on the opinion
of Skadden, Arps, Slate, Meagher & Flom. If such opinion were
incorrect, or if for any other reason the Fund did not qualify as
a RIC, the Fund would be taxable as an ordinary corporation which
would have a material adverse effect on the Fund.
Since, on the foregoing basis, the Fund will qualify as a RIC and
will distribute to its shareholders at least 90% of its net
investment income (including tax-exempt interest and net short-
term capital gain but not net capital gain, which is the excess
of net long-term capital gains over net short-term capital
losses), then the Fund will not be subject to federal tax on the
income so distributed (the "Distribution Requirement"). However,
the Fund would be subject to corporate income tax (currently at a
maximum marginal rate of 35%) on any undistributed income other
than tax-exempt income from municipal securities. In addition,
the Fund will be subject to a nondeductible 4% excise tax on the
amount by which the income it distributes in any calendar year is
less than a required amount. In order to avoid the imposition of
the 4% excise tax, the Fund must distribute, in each calendar
year, an amount equal to the sum of (a) 98% of the ordinary
income (excluding tax-exempt interest income) for such calendar
year; (b) 98% of the excess of capital gains over capital losses
for the one-year period ending on October 31 (or another date if
elected by the Fund) of such calendar year; and (c) 100% of the
undistributed ordinary income and gains from prior years. For
purposes of the excise tax, any income or capital gains retained
by, and taxed in the hands of, the Fund will be treated as having
been distributed.
Liquidating distributions which in the aggregate exceed a
shareholder's basis in Shares will be treated as gain from the
sale of Shares. If a shareholder receives in the aggregate
liquidating distributions which are less than such basis, such
shareholder will recognize a loss to that extent.
Dividends and other distributions by the Fund are generally
taxable to the shareholders at the time the dividend or
distribution is made. Any dividends declared by the Fund in
October, November or December and made payable to shareholders of
record in such a month would be taxable to shareholders as of
December 31, provided that the dividend is paid in the following
January.
If a shareholder purchases Shares at a cost that reflects an
anticipated dividend, such dividend will be taxable even though
it represents economically in whole or in part a return of the
purchase price. Investors should consider the tax implications
of buying Shares shortly prior to a dividend distribution.
The Fund will, within 60 days after the close of its taxable
year, send written notices to shareholders regarding the tax
status of all distributions made during the year.
In general, if a Share is sold, the seller will recognize gain or
loss equal to the difference between the amount realized on the
sale and the seller's adjusted basis in the Share. However, any
loss recognized by a shareholder within six months of purchasing
the Shares will be treated as a long-term capital loss to the
extent of any long-term capital gain distributions received by
the shareholder and the shareholder's Share of undistributed
long-term capital gains. In addition, any loss realized on a sale
of Shares will be disallowed to the extent the Shares disposed of
are replaced within a period of 61 days beginning 30 days before
the disposition of the Shares. In such a case, the basis of the
Shares acquired will be adjusted to reflect the disallowed loss.
Any gain or loss realized upon a sale of Shares by a shareholder
who is not a dealer in securities will be treated as capital gain
or loss.
The Fund may be required to withhold federal income tax at the
rate of 31% of any payments made to a shareholder of the Fund if
the shareholder has not provided a correct taxpayer
identification number and certain required certifications to the
Fund, or if the Secretary of the Treasury notifies the Fund that
the number provided by a shareholder is incorrect or that the
shareholder has not reported all interest and dividend income
required to be shown on the shareholder's federal income tax
return.
Under current law, the Fund is required to withhold U.S.
withholding tax from any distributions of net investment income
paid to most non-U.S. investors, and the ownership of an interest
in a Fund by a non-U.S. individual at death may subject such
individual to U.S. estate tax. Consequently, the Fund may not be
appropriate as an investment for non-U.S. persons and such
prospective investors are urged to consult their own tax advisors
with respect to the potential effective tax liability that may
arise with respect to an investment in the Fund.
Additional detail on the Trust's taxation characteristics is
provided in the Trust Registration Statement filed with the SEC
concurrently with this registration statement.
ITEM 23. FINANCIAL STATEMENTS
Not Applicable.
PART C
ITEM 24. FINANCIAL STATEMENTS AND EXHIBITS
(1) Not Applicable.
(2) (a) Declaration of Trust.
(b) By-Laws.
(c) None.
(d) Not Applicable.
(e) None.
(f) Form of Notes.
(g) Form of Investment Advisory Agreement.
(h) Form of Placement Agent Agreement.
(i) None.
(j) Form of Custodian Agreement.
(k) Form of Administration Agreement;
Form of Transfer Agent Agreement.
(l) Not Applicable.
(m) None.
(n) Not Applicable.
(o) Not Applicable.
(p) Form of Subscription Agreement.
(q) None.
(r) None.
ITEM 25. MARKETING ARRANGEMENTS
None.
ITEM 26. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
Not Applicable.
ITEM 27. PERSONS CONTROLLED BY OR UNDER COMMON CONTROL WITH
REGISTRANT
The Fund, as the holder of 31.5% of the issued and
outstanding shares of beneficial interest of the Trust, may be
deemed to be a controlling person of the Trust.
ITEM 28. NUMBER OF HOLDERS OF SECURITIES OF THE FUND
Title of Class Number of Record Holders*
Shares of Beneficial 21
Interest
Notes 25
ITEM 29. INDEMNIFICATION
Under the Fund's Declaration of Trust, the Fund agrees to
indemnify the Trustees or officers of the Fund (each such person
being an "indemnitee") against any liabilities and expenses,
including amounts paid in satisfaction of judgments, in
compromise or as fines and penalties, and reasonable counsel fees
reasonably incurred by such indemnitee in connection with the
defense or disposition of any action, suit or other proceeding,
whether civil or criminal, before any court or administrative or
investigative body in which he may be or may have been involved
__________________
*For purposes of Section 3 of the 1940 Act the Fund has 122
beneficial owners of its securities (other than short-term
paper).
as a party or otherwise or with which he may be or may have been
threatened, while acting in any capacity set forth above in this
Section by reason of his having acted in any such capacity,
except with respect to any matter as to which he shall not have
acted in good faith in the reasonable belief that his action was
in the best interest of the Fund or, in the case of any criminal
proceeding, as to which he shall have had reasonable cause to
believe that the conduct was unlawful, provided, however, that no
indemnitee shall be indemnified hereunder against any liability
to any person or any expense of such indemnitee arising by reason
of (i) willful misfeasance, (ii) bad faith, (iii) gross
negligence (negligence in the case of those Trustees or officers
who are directors, officers or employees of the Advisor
("Affiliated Indemnitees")), or (iv) reckless disregard of the
duties involved in the conduct of his position (the conduct
referred to in such clauses (i) through (iv) being sometimes
referred to herein as "disabling conduct"). Notwithstanding the
foregoing, with respect to any action, suit or other proceeding
voluntarily prosecuted by any indemnitee as plaintiff,
indemnification shall be mandatory only if the prosecution of
such action, suit or other proceeding by such indemnitee was
authorized by a majority of the Trustees and a majority of the
Investor Trustees.
Further, pursuant to the Advisory Agreement, the Fund agrees to
indemnify the Advisor and each of the Advisor's directors,
officers, employees and controlling persons and the partners,
directors, officers and employees thereof (each such person being
an "indemnitee") against any liabilities and expenses, including
amounts paid in satisfaction of judgments, in compromise or as
fines and penalties, and reasonable counsel fees reasonably
incurred by such indemnitee in connection with the defense or
disposition of any action, suit or other proceeding, whether
civil or criminal, before any court or administrative or
investigative body in which he may be or may have been involved
as a party or otherwise or with which he may be or may have been
threatened, while acting in any capacity set forth above with
respect to the services provided hereunder or thereafter by
reason of his having acted in any such capacity, except with
respect to any matter as to which he shall not have acted in good
faith in the reasonable belief that his action was in the best
interest of the Fund or, in the case of any criminal proceeding,
as to which he shall have had reasonable cause to believe that
the conduct was unlawful, provided, however, that no indemnitee
shall be indemnified hereunder against any liability to any
person or any expense of such indemnitee arising by reason of (i)
willful misfeasance, (ii) bad faith, (iii) negligence or (iv)
reckless disregard of the duties involved in the conduct of his
position. Notwithstanding the foregoing, with respect to any
action, suit or other proceeding voluntarily prosecuted by any
indemnitee as plaintiff, indemnification shall be mandatory only
if the prosecution of such action, suit or other proceeding by
such indemnitee was authorized by a majority of the Trustees and
a majority of the Investor Trustees.
Insofar as indemnification for liabilities under the Securities
Act of 1933 (the "1933 Act") may be permitted to the Trustees and
officers, the Fund has been advised that in the opinion of the
SEC such indemnification is against public policy as expressed in
such Act and is therefore unenforceable. If a claim for
indemnification against such liabilities under the 1933 Act
(other than for expenses incurred in a successful defense) is
asserted against the Fund by the Trustees or officers in
connection with the Shares, the Fund will, unless in the opinion
of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the
question of whether such indemnification by it is against public
policy as expressed in such Act and will be governed by the final
adjudication of such issue.
ITEM 30. BUSINESS AND OTHER CONNECTIONS OF INVESTMENT ADVISOR
For information as to the business, profession, vocation or
employment of a substantial nature of each of the officers and
directors of the Advisor, reference is made to the Advisor's
current Form ADV filed under the Investment Advisors Act of 1940,
incorporated herein by reference.
ITEM 31. LOCATION OF ACCOUNTS AND RECORDS
The accounts and records of the Fund are maintained in part at
the office of the Advisor at 345 Park Avenue, New York, New York
10154, in part at the offices of the Custodian and Administrator,
State Street Bank & Trust Company, with offices at 1776 Heritage
Drive, North Quincy, MA 02171 and in part at the offices of
Boston Financial Data Services Inc., BFDS Building, 4th Floor, 2
Heritage Drive, Quincy, MA 02171.
ITEM 32. MANAGEMENT SERVICES
Except as described above in Item 9 - Management, the Fund is not
a party to any management service related contract.
ITEM 33. UNDERTAKINGS
Not Applicable.
SIGNATURES
Pursuant to the requirements of the Investment Company
Act of 1940, the Registrant has duly caused this registration
statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of New York, State of New
York, on the 18th day of May, 1995.
BLACKROCK FUND INVESTORS I
(Registrant)
By Wesley R. Edens
_______________________
Wesley R. Edens
Chief Operating Officer
SCHEDULE OF EXHIBITS TO FORM N-2
Exhibit Page
Number Exhibit Number
Exhibit A Declaration of Trust . . . . . . . . .
Exhibit B By-Laws . . . . . . . . . . . . . . .
Exhibit C None . . . . . . . . . . . . . . . . .
Exhibit D Not Applicable . . . . . . . . . . . .
Exhibit E None (see Declaration of Trust) . . .
Exhibit F Form of Notes . . . . . . . . . . . .
Exhibit G Form of Investment Advisory Agreement
Exhibit H Form of Placement Agent Agreement . .
Exhibit I None . . . . . . . . . . . . . . . . .
Exhibit J Form of Custodian Agreement . . . . .
Exhibit K (a) Form of Administration Agreement .
(b) Form of Transfer Agent Agreement .
Exhibit L Not Applicable . . . . . . . . . . . .
Exhibit M None . . . . . . . . . . . . . . . . .
Exhibit N Not Applicable . . . . . . . . . . . .
Exhibit O Not Applicable . . . . . . . . . . . .
Exhibit P Form of Subscription Agreement . . . .
Exhibit Q None . . . . . . . . . . . . . . . . .
Exhibit R None . . . . . . . . . . . . . . . . .
DECLARATION OF TRUST
OF
BLACKROCK FUND INVESTORS I
December 21, 1994
INDEX
DECLARATION OF TRUST
OF
BLACKROCK FUND INVESTORS I
ARTICLE I
NAME, INVESTMENT OBJECTIVE AND DEFINITIONS
Page
Section 1.1 Name, Principal Office and Registered
Agent . . . . . . . . . . . . . . . . 1
Section 1.2 Investment Objective . . . . . . . . . 2
Section 1.3 Definitions . . . . . . . . . . . . . 2
ARTICLE II
TRUSTEES
Section 2.1 Number of Trustees . . . . . . . . . . 5
Section 2.2 Election and Term of Office of
Trustees . . . . . . . . . . . . . . . 6
Section 2.3 Vacancies among Trustees . . . . . . . 7
Section 2.4 Effect of Vacancies . . . . . . . . . 8
Section 2.5 Committees . . . . . . . . . . . . . . 8
Section 2.6 Delegation of Power . . . . . . . . . 9
Section 2.7 Meetings . . . . . . . . . . . . . . . 9
Section 2.8 Officers . . . . . . . . . . . . . . 10
ARTICLE III
POWERS OF TRUSTEES
Section 3.1 General . . . . . . . . . . . . . . 11
Section 3.2 Investments . . . . . . . . . . . . . 11
Section 3.3 Legal Title . . . . . . . . . . . . . 12
Section 3.4 Contracts with Service Providers . . . 13
Section 3.5 Issuance and Purchase of Securities . 13
Section 3.6 Collection and Payment . . . . . . . . 14
Section 3.7 Expenses . . . . . . . . . . . . . . . 14
Section 3.8 Manner of Acting; By-Laws . . . . . . 14
Section 3.9 Miscellaneous Powers . . . . . . . . . 15
Section 3.10 Interested Transactions . . . . . . . 15
ARTICLE IV
LIMITATIONS OF LIABILITY OF SHAREHOLDERS,
TRUSTEES AND OTHERS
Section 4.1 No Personal Liability of
Shareholders, Trustees, etc. . . . . . 16
Section 4.2 Mandatory Indemnification . . . . . . 17
Section 4.3 No Bond Required of Trustees . . . . . 19
Section 4.4 No Duty of Investigation; Notice in
Fund Instruments, etc. . . . . . . . . 19
Section 4.5 Reliance on Experts, etc. . . . . . . 20
ARTICLE V
SHARES OF BENEFICIAL INTEREST
Section 5.1 Beneficial Interest . . . . . . . . . 20
Section 5.2 Rights of Shareholders . . . . . . . . 20
Section 5.3 Trust Only . . . . . . . . . . . . . . 21
Section 5.4 Issuance of Shares . . . . . . . . . . 21
Section 5.5 Capital Calls . . . . . . . . . . . . 21
Section 5.6 Register of Shares . . . . . . . . . . 22
Section 5.7 Transfer of Shares . . . . . . . . . . 22
Section 5.8 Notices . . . . . . . . . . . . . . . 23
Section 5.9 Treasury Shares . . . . . . . . . . . 24
Section 5.10 Distribution . . . . . . . . . . . . . 24
ARTICLE VI
DETERMINATION OF NET ASSET VALUE
Section 6.1 Net Asset Value . . . . . . . . . . . 24
ARTICLE VII
LIMITED EXISTENCE; TERMINATION
OF FUND; AMENDMENT; MERGERS, ETC.
Section 7.1 Limited Existence . . . . . . . . . . 25
Section 7.2 Termination of Fund . . . . . . . . . 27
Section 7.3 Amendment Procedure . . . . . . . . . 27
Section 7.4 Merger, Consolidation and Sale of
Assets . . . . . . . . . . . . . . . . 29
ARTICLE VIII
SHAREHOLDERS
Section 8.1 Meetings of Shareholders . . . . . . . 29
Section 8.2 Voting . . . . . . . . . . . . . . . . 30
Section 8.3 Notice of Meeting and Record Date . . 30
Section 8.4 Quorum and Required Vote . . . . . . . 31
Section 8.5 Proxies, etc. . . . . . . . . . . . . 31
Section 8.6 Reports . . . . . . . . . . . . . . . 32
Section 8.7 Shareholder Action by
Written Consent . . . . . . . . . . . 32
ARTICLE IX
MISCELLANEOUS
Section 9.1 Filing . . . . . . . . . . . . . . . . 33
Section 9.2 Governing Law . . . . . . . . . . . . 33
Section 9.3 Counterparts . . . . . . . . . . . . . 33
Section 9.4 Reliance by Third Parties . . . . . . 33
Section 9.5 Provisions in Conflict with Law or
Regulations . . . . . . . . . . . . . 34
Section 9.6 Use of the Name "BlackRock" . . . . . 34
Section 9.7 Shareholder Coinvestment . . . . . . . 34
DECLARATION OF TRUST
OF
BLACKROCK FUND INVESTORS I
December 21, 1994
DECLARATION OF TRUST made as of December 21,
1994, by the undersigned (together with all other persons
from time to time duly elected, qualified and serving as
Trustees in accordance with the provisions of Article II
hereof, the "Trustees"), and by the holders of shares of
beneficial interest to be issued hereunder as hereinafter
provided;
WHEREAS, the Trustees desire to establish a
business trust fund under the laws of the State of
Delaware for the investment and reinvestment of funds
contributed thereto; and
WHEREAS, the Trustees desire that the
beneficial interest in the trust assets be divided into
transferable shares of beneficial interest, as
hereinafter provided;
NOW, THEREFORE, the Trustees hereby declare
that all money and property contributed to the trust
established hereunder shall be held and managed in trust
for the benefit of holders, from time to time, of the
shares of beneficial interest issued hereunder and
subject to the provisions hereof.
ARTICLE I
NAME, INVESTMENT OBJECTIVE AND DEFINITIONS
Section 1.1 Name, Principal Office and
Registered Agent. The name of the trust created hereby
is the "BlackRock Fund Investors I" (the "Fund").
The post office address of the principal office
of the Fund is 345 Park Avenue, New York, New York 10154.
The name of the registered agent of the Fund in the State
of Delaware is The Corporation Trust Company, a Delaware
corporation, and the post office address of the
registered agent is 1209 Orange Street, Wilmington,
Delaware 19801.
Section 1.2 Investment Objective. The Fund
will seek to achieve high total returns from its
investment in BlackRock Asset Investors ("BAI"), a
Delaware business trust, that will invest in subordinated
commercial mortgage-backed securities and other
investment securities and from the profits of BAI's
Affiliates, including BlackRock Capital Finance L.P., a
Delaware limited partnership and other Mortgage
Affiliates, which will engage primarily in the businesses
of acquiring, pooling and repackaging performing
commercial mortgage loans as commercial mortgage-backed
securities for distribution to BAI and its strategic
coinvestors in such assets and for sale in the capital
markets and acquiring and working out distressed
commercial and residential mortgage loans.
Section 1.3 Definitions. Wherever they are
used herein, the following terms have the following
respective meanings:
(a) "Administrator" means State Street
Bank and Trust Company or any successor or assign thereto
furnishing administrative services to the Fund.
(b) "Affiliate" means any Affiliate as
defined in the Rules adopted pursuant to Section 12 of
the Securities Exchange Act of 1934, as amended from time
to time.
(c) The terms "Affiliated Person,"
"Commission" and "Interested Person" have the meanings
given them in the 1940 Act.
(d) "BCF" means BlackRock Capital Finance
L.P., a Delaware Limited Partnership.
(e) "BlackRock" means BlackRock Financial
Management L.P., the Fund's Investment Advisor, and any
permitted successor or assign thereto.
(f) "Board" means the Board of Trustees
of the Fund.
(g) "Business Day" means any day other
than Saturdays, Sundays and holidays on which banks in
the City of New York or the New York Stock Exchange are
not open for business.
(h) "By-Laws" means the By-Laws referred
to in Section 3.8 hereof, as from time to time amended.
(i) "Capital Calls" means such calls for
payment of the unpaid amounts of a Shareholder's Capital
Commitment as the Fund may issue from time to time in
accordance with this Declaration.
(j) "Capital Commitments" means the
aggregate amount of funds committed to the Fund pursuant
to subscription agreements between the Fund and each
investor.
(k) "Commission" means the Securities and
Exchange Commission.
(l) "Commitment Period" means the period
during which funds may be drawn down for investments
subject to expiration pursuant to Section 5.5 herein.
(m) "Custodian" means any person other
than the Fund who has custody of any Fund Property as
required by Section 17(f) of the 1940 Act, but does not
include a system for the central handling of securities
described in said Section 17(f).
(n) "Declaration" means this Declaration
of Trust as amended from time to time. Reference in this
Declaration of Trust to "Declaration," "hereof," "herein"
and "hereunder" shall be deemed to refer to this
Declaration rather than the article or section in which
such words appear.
(o) "Delaware Act" means Chapter 38 of
Title 12 of the Delaware Code entitled "Treatment of
Delaware Business Trusts" as amended from time to time.
(p) "Fund" means BlackRock Fund Investors
I created hereby.
(q) "Fund Property" means any and all
property, real or personal, tangible or intangible, which
is owned or held by or for the account of the Fund or the
Trustees.
(r) "Initial Closing" means December 22,
1994 or such later date on which the Trust shall have
received at least $200 million of capital commitments.
(s) "Investment Advisor" means BlackRock
Financial Management L.P. and any permitted successor or
assign thereto furnishing investment advisory services to
the Fund.
(t) "Investor Trustee" means each Trustee
who is not a partner, director, officer, or employee of
the Investment Advisor, and who has been designated by a
shareholder of one of the Funds as specified in Section
2.1 hereof or any immediate or remote successor appointed
or elected pursuant to Section 2.2 and/or 2.3 hereof.
(u) "Majority of the Investor Trustees"
means 51% of those Investor Trustees who have been
designated by a shareholder of the Fund or one of the
Other Investment Companies whose capital commitment to or
total investments in such Fund or Other Investment
Company equals at least 8.33% of the Trust's aggregate
capital commitments and who are qualified to vote on the
matter in question.
(v) "Management Team" means Mr. Wesley R.
Edens and the four senior professionals of BlackRock who
report directly to Mr. Edens.
(w) "Mortgage Affiliate" means any
Affiliate described in Section 1.2, including but not
limited to BCF.
(x) "Other Investment Companies" and
"Other Funds" means BlackRock Fund Investors II and III.
(y) "Person" means and includes
individuals, corporations, partnerships, trusts,
associations, joint ventures and other entities, whether
or not legal entities, and governments and agencies and
political subdivisions thereof, whether domestic or foreign.
(z) "Quorum" means a majority of Trustees
including at least one (1) Investor Trustee.
(aa) "Shareholder" means a record owner of
outstanding Shares.
(aa) "Shares" means the units of
beneficial interest in the Fund as described in Section
5.1 hereof and includes fractions of Shares as well as
whole Shares.
(bb) "Transfer Agent" means State Street
Bank and Trust Company, and its Affiliate, Boston
Financial Data Services, and any successor or assign
thereto furnishing transfer agency services to the Trust.
(cc) "Trust" means BlackRock Asset
Investors.
(dd) "Trustee" or "Trustees" means the
person who has signed the Declaration as a trustee, so
long as he shall continue in office in accordance with
the terms hereof, and all other persons who may from time
to time be duly appointed or elected, qualified and
serving as Trustees in accordance with the provisions
hereof, and references herein to a Trustee or the
Trustees shall refer to such person or persons in their
capacity as trustees hereunder.
(ee) "Valuation Policies" means the
policies and guidelines approved from time to time by a
majority of the Trustees and all of the Investor
Trustees.
(ff) "1940 Act" means the Investment
Company Act of 1940, the Rules and Regulations thereunder
and any order applicable to the Fund granted thereunder,
in each case as amended from time to time.
ARTICLE II
TRUSTEES
Section 2.1 Number of Trustees. The number of
Trustees initially shall be ten (10), and thereafter the
number of Trustees shall be such number as shall be fixed
from time to time by a written instrument signed by a
majority of the Trustees; provided, however, that the
number of Trustees shall in no event be less than seven
(7). No amendment may be made to Section 2.1 which would
change any rights with respect to the number or existence
of Trustees, except with the unanimous vote or consent of
the Shareholders. If at any time a majority of Trustees
are Affiliated Persons of the Investment Advisor, the
Board shall, in accordance with the other provisions
hereof, promptly appoint such number of Trustees as shall
result in less than a majority of the Board being
Affiliated Persons of the Investment Advisor. No
reduction in the number of Trustees shall have the effect
of removing any Trustee from office prior to the
expiration of his term unless the Trustee is specifically
removed pursuant to Section 2.2 of this Article II at the
time of the decrease.
The initial Trustees shall be:
Laurence D. Fink(1),(2)
Ralph L. Schlosstein1,2
Wesley R. Edens1,2
John C. Deterding2,(3)
Philip Halpern2,3
Michael E. Klehm2,3
Donald G. Drapkin
Laurence E. Hirsch
Kendrick R. Wilson, III
James Grosfeld
Section 2.2 Election and Term of Office of
Trustees. Whenever the Trustees are to be elected by the
Shareholders, each Shareholder shall be entitled to cast
a number of votes for the election of Trustees equal to
the number of such Shareholder's Shares multiplied by the
number of Trustees to be elected, and a Shareholder may
cast all such votes for a single Trustee or may
distribute them among any two or more of them as the
Shareholder may see fit. Plurality voting shall govern
the election of Trustees. Each Trustee elected or
appointed to office shall hold office until his successor
shall have been elected or appointed and shall have
qualified or until his death; except that (a) any Trustee
may resign his position (without need for prior or
subsequent accounting) by an instrument in writing signed
by him and delivered to the other Trustees, which shall
take effect upon such delivery or upon such later date as
is specified therein; (b) any Trustee may be removed
(provided that if the aggregate number of Trustees after
such removal shall be less than the minimum number
required by Section 2.1 hereof, his successor shall be
appointed or, if so required, elected, as soon as
possible) with cause, at any time by written instrument,
signed by at least two-thirds of the remaining Trustees,
specifying the date when such removal shall become
effective; (c) any Trustee who requests in writing to be
retired, who has become incapacitated by illness or
injury, or who has become mentally incompetent may be
retired by resolution by a majority of the other
Trustees, specifying the date of his retirement; and (d)
any Trustee may be removed with or without cause at any
meeting of Shareholders by a vote of 75% of the
outstanding Shares. Upon the resignation or removal of a
Trustee, or his otherwise ceasing to be a Trustee, he
shall execute and deliver such documents as the remaining
Trustees shall require for the purpose of conveying to
the Fund or the remaining Trustees any Fund Property held
in the name of the resigning or removed Trustee. Upon
------------------
1 Trustees who are partners, directors, officers or
employees of the Advisor.
2 Trustees who may be deemed to be "interested persons"
of the Trust.
3 Investor Trustee.
the incapacity or death of any Trustee, his legal
representative shall execute and deliver on his behalf
such documents as the remaining Trustees shall require as
provided in the preceding sentence. As used in this
Section 2.2, "cause" means (x) a Trustee's willful
failure or refusal to perform reasonable duties specified
by this Declaration and such failure or refusal continues
for or is not otherwise cured within four weeks after
written notice thereof is sent to the Trustee by the
remaining Trustees of the Fund, provided, however, that
if such failure is incurable within such time it shall
have been material; (y) a Trustee's knowing violation of
any applicable law or any action other than voting that
results in material injury to the Fund; and (z) any
breach (not covered by clauses (x) or (y) above) of any
of the provisions of this Declaration if such breach is
material and continues or is otherwise not cured within
four weeks after written notice thereof is sent to the
Trustee by the remaining Trustees of the Fund.
Section 2.3 Vacancies among Trustees. If a
Trustee ceases to hold office for any reason, or if the
Trustees shall determine to increase the number of
Trustees as permitted under Section 2.1, a vacancy shall
occur. A resolution certifying the existence of such
vacancy by a majority of the Trustees shall be conclusive
evidence of the existence of such vacancy. Subject to
the following provisions of this Section 2.3, in the case
of an existing vacancy with respect to a Trustee who is
not an Investor Trustee, including a vacancy existing by
reason of an increase in the number of Trustees, the
remaining Trustees may fill such vacancy by nominating
and appointing such other person as they in their
discretion shall see fit. If the Board, as opposed to
the Shareholders, is (as it has the right to do) filling
a vacancy on the Board and the vacant seat had been
occupied by an Investor Trustee, then the vacancy will be
filled by the Board by a person satisfactory to the Fund
Shareholder who had designated such Investor Trustee. If
the vacancy is to be filled by a Shareholder vote, a
Shareholders' meeting will be called at which the entire
Board will be elected and the Board's nominee for the
vacancy that had been occupied by an Investor Trustee
will be a person satisfactory to the Fund Shareholder who
had designated such Investor Trustee. If at any time one
or more Trustees is to be elected by the Shareholders,
the entire Board will be elected by the Shareholders.
Whenever an Investor Trustee seat becomes vacant it must
be filled as promptly as practicable in accordance with
the foregoing provisions.
Section 2.4 Effect of Vacancies. The death,
resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of a
Trustee, or any one of them, shall not operate to annul
the Fund or to revoke any existing agency created
pursuant to the terms of this Declaration. Whenever a
vacancy in the number of Trustees shall occur, until such
vacancy is filled as provided in Section 2.3, the
Trustees in office, regardless of their number, shall
have all the powers granted to the Trustees and shall
discharge all the duties imposed upon the Trustees by the
Declaration.
Section 2.5 Committees. The Trustees may by
resolution appoint committees consisting of less than the
whole number (but not less than three) of Trustees then
in office, provided that each Investor Trustee shall be
notified of the formation of such committee (if not
present at the meeting when such committee is formed) and
have the right, but not the obligation, to be a member of
any such committee, which committees may be empowered to
act for and bind the Trustees and the Fund, as if the
acts of such committee were the acts of all the Trustees
then in office, to such extent as the Trustees, including
all Investor Trustees, shall determine.
The committees of the Trustees shall include an
audit committee. A quorum for all meetings of any such
committee shall be a majority of the members thereof.
Unless provided otherwise in this Declaration, any action
of any such committee may be taken at a meeting by vote
of a majority of the members present (whether in person
or by telephone) provided that a quorum is present or
without a meeting by written consent of all of the
members. No committee can take any action that would
circumvent any Board level voting requirements. Subject
to the foregoing restrictions, the Board shall have the
power at any time to change the membership of any
committee, to fill all vacancies, to designate alternate
members to replace any absent or disqualified member, or
to dissolve any such committee. Nothing herein shall be
deemed to prevent the Board from appointing committees
consisting in whole or in part of persons who are not
trustees of the Fund; provided, however, that no such
committee shall have or may exercise any authority or
power of the Board in the management of the business or
affairs of the Fund.
Section 2.6 Delegation of Power. Any Trustee
may, by power of attorney consistent with applicable law,
delegate to any other natural person over the age of 21
his or her power for the purpose of executing any
registration statement or amendment thereto filed with
the Commission or making any other government filing.
The Trustees shall have power to delegate from
time to time to such of their number or to officers of
the Fund the doing of such things and the execution of
such instruments either in the name of the Fund or the
names of the Trustees or otherwise as the Trustees may
deem expedient, to the extent such delegation is not
prohibited by the 1940 Act.
Section 2.7 Meetings. Meetings of the
Trustees shall be held from time to time upon the call of
the Chairman, if any, the President, the Secretary or any
Trustee. Regular meetings of the Trustees may be held at
a time and place fixed by the By-Laws or by resolution of
the Trustees. Notice of any in-person meetings of the
Board of Trustees or any committee thereof shall be hand
delivered or otherwise delivered in writing (including by
facsimile, with a hard copy by overnight courier) not
less than ten Business Days before such meeting. Notice
of any telephonic meetings of the Trustees or any
committee thereof shall be hand delivered or otherwise
delivered in writing (including by facsimile, with a hard
copy by overnight courier) not less than five Business
Days before a meeting. Notices shall contain a brief
statement of the time, place and anticipated purposes of
the meeting. The presence (whether in person or by
telephone) of a Trustee at a meeting shall constitute a
waiver of notice of such meeting except where a Trustee
attends a meeting for the express purpose of objecting to
the transaction of any business on the ground that the
meeting has not been lawfully called or convened. Unless
provided otherwise in this Declaration of Trust, any
action of the Trustees may be taken at a meeting by vote
of a majority of the Trustees present (whether in person
or by telephone) and eligible to vote with respect to
such matter, provided that a Quorum is present, or
without a meeting by the unanimous written consent of the
Trustees.
Except as otherwise provided herein, for the
purpose of any provision requiring a vote of all Investor
Trustees, if an Investor Trustee is not present (in
person or by telephone) at a meeting duly called or
abstains due to a conflict, a vote of all Investor
Trustees shall mean all but the Investor Trustee who is
not present or so abstains. On each matter on which
Trustees vote, each Trustee may give or withhold his or
her vote as he or she deems appropriate in his or her
sole discretion in exercise of his or her business
judgment and fiduciary duties under the 1940 Act.
Section 2.8 Officers. The Trustees shall
annually elect a President, a Secretary and a Treasurer
and may elect a Chairman. The Trustees may elect or
appoint or may authorize the Chairman, if any, or
President to appoint such other officers with such powers
as the Trustees may deem to be advisable. A Chairman
shall, and the President, Secretary and Treasurer may,
but need not, be a Trustee. No officer may waive any
right of the Fund with respect to the Trust without the
approval of a majority of the Trustees and a Majority of
the Investor Trustees.
ARTICLE III
POWERS OF TRUSTEES
Section 3.1 General. The Trustees shall have
exclusive and absolute control over the Fund Property and
over the business of the Fund to the same extent as if
the Trustees were the sole owners of the Fund Property in
their own right, but with such powers of delegation as
may be permitted by the Declaration. The Trustees shall
have power to conduct the activities of the Fund and
maintain offices both within and without the State of
Delaware, in any and all states of the United States of
America, in the District of Columbia, and in any and all
commonwealths, territories, dependencies, colonies,
possessions, agencies or instrumentalities of the United
States of America and of foreign governments and, subject
to the other provisions of this Declaration, to do all
such other things and execute all such instruments as the
Trustees deem necessary, proper or desirable in order to
promote the interests of the Fund although such things
are not herein specifically mentioned. Any determination
as to what is in the interests of the Fund made by the
Trustees in good faith shall be conclusive. In
construing the provisions of the Declaration, the
presumption shall be in favor of a grant of power to the
Trustees.
The enumeration of any specific power herein
shall not be construed as limiting and/or restricting the
aforesaid general powers of the Trustees. Such powers of
the Trustees may be exercised without order of or resort
to any court.
Section 3.2 Investments. (a) Subject to the
other provisions of this Declaration, the Trustees shall
have the power:
(i) to operate as and carry on
the business of an investment company, and
exercise all of the powers necessary or
appropriate to the conduct of such operations;
(ii) to invest in shares of
beneficial interest and other securities of BAI
and, to the extent consistent with the 1940 Act
and incidental to the making of investments in
BAI, the payment of distributions;
(iii) to borrow, through the
issuance of notes having a maturity not greater
than the term of the Fund and such other terms
and conditions as the Trustees shall determine,
approximately that proportion of $500,000 that
the Capital Commitments of the Fund bears to
the total capital commitments of the Fund and
the Other Funds; and
(iv) to carry on any other
business in connection with or incidental to
any of the foregoing powers, to do everything
necessary, suitable or proper for the
accomplishment of any purpose or the attainment
of any object or the furtherance of any power
hereinbefore set forth, and to do every other
act or thing incidental or appurtenant to or
connected with the aforesaid purposes, objects
or powers.
(b) The Trustees shall not be limited to
investing in obligations maturing before the termination
of the Fund, nor shall the Trustees be limited by any law
limiting the investments which may be made by
fiduciaries.
(c) The Fund and the Investment Advisor will
use their respective best efforts to ensure that the Fund
qualifies each year and elects to be treated as a
regulated investment company under Subchapter M of the
Internal Revenue Code of 1986, as amended.
(d) The Fund and the Investment Advisor will
use their respective best efforts to ensure that the Fund
at all times is an investment company for purposes of the
1940 Act, and is duly registered as such under the 1940
Act.
Section 3.3 Legal Title. Legal title to all
the Fund Property shall be vested in the Trustees as
joint tenants except that the Trustees shall have power
to cause legal title to any Fund Property to be held by
or in the name of one or more of the Trustees, or in the
name of the Fund, or in the name of any other Person as
nominee, on such terms as the Trustees may determine.
The right, title and interest of the Trustees in the Fund
Property shall vest automatically in each Person who may
hereafter become a Trustee. Upon the termination of the
term of office, resignation, removal or death of a
Trustee he shall automatically cease to have any right,
title or interest in any of the Fund Property, and the
right, title and interest of such Trustee in the Fund
Property shall vest automatically in the remaining
Trustees. Such vesting and cessation of title shall be
effective whether or not conveyancing documents have been
executed and delivered.
Section 3.4 Contracts with Service Providers.
(a)(i) The form and terms of any investment advisory
agreement and placement agent agreements, and any
amendments thereto, must be approved by a majority of the
Trustees who are not Interested Persons of the Fund and
by a Majority of the Investor Trustees; and (ii) the form
and basic terms (including fees and fee formulas) of
contracts, and material amendments thereto, with any
Persons (other than any investment advisor or placement
agent) providing services of a material nature to the
Fund, are subject to approval by a majority of the
Trustees and a Majority of the Investor Trustees. Upon
approval in the foregoing manner under clause (ii) of the
form and basic terms of any contracts covered by such
clause, approval of the complete terms of any such
contract by the Trustees shall not be necessary except as
required by the 1940 Act. No such agreement or contract
shall be subject to approval by the Shareholders except
as required by the 1940 Act.
(b) Any agreement of the character described
in Section 3.4(a) may be entered into with any Person,
although one or more of any Affiliated Person of the Fund
or any Affiliated Person of any such Affiliated Person
may be an officer, partner, director, trustee,
shareholder or holder of any other direct or indirect
equity interest, or member of such other party to the
contract, and no such contract shall be invalidated or
rendered voidable by reason of the existence of any such
relationship; nor shall any Person holding such
relationship be disqualified from voting upon or
executing any such contract; nor shall any Person holding
such relationship be liable merely by reason of such
relationship for any loss or expense to the Fund under or
by reason of said contract or accountable for any profit
realized directly or indirectly therefrom.
Section 3.5 Issuance and Purchase of
Securities. Subject to Section 5.4 and the following
sentence, the Trustees shall have the power to issue,
sell, retire, cancel, hold, resell, reissue, dispose of,
transfer, and otherwise deal in Shares and subject to the
provisions set forth in Articles V, VI and VII hereof, to
apply to any such retirement or cancellation of Shares
any funds or property of the Fund whether capital or
surplus or otherwise, to the full extent now or hereafter
permitted by the laws of the State of Delaware governing
business corporations. The Trustees shall have the power
to purchase, redeem or acquire Shares only in the case of
a Shareholder who fails to pay a Capital Call in
accordance with the terms of the Shareholder's
subscription agreement, which power shall be enforced in
a consistent and nondiscriminatory manner by the
Trustees.
Section 3.6 Collection and Payment. The
Trustees shall have power to collect all property due to
the Fund; to pay all claims, including taxes, against the
Fund Property; to prosecute, defend, compromise or
abandon any claims relating to the Fund Property; to
foreclose any security interest securing any obligations
by virtue of which any property is owed to the Fund; and
to enter into releases, agreements and other instruments.
Section 3.7 Expenses. The Trustees shall have
the power to incur and pay any expenses which in the
opinion of the Trustees are necessary or incidental to
carry out any of the purposes of the Declaration, and to
pay reasonable compensation from the funds of the Fund to
themselves as Trustees. The Trustees shall fix the
compensation of all officers and Trustees. No Trustee or
officer of the Fund who is a partner, director, officer
or employee of the Investment Advisor will receive
compensation from the Fund.
Section 3.8 Manner of Acting; By-Laws. Except
as otherwise provided herein or in the By-Laws, any
action to be taken by the Trustees may be taken by a
majority of the Trustees present (whether in person or by
telephone) at a meeting of Trustees, provided that a
Quorum is present, including any meeting held by means of
a conference telephone circuit or similar communications
equipment by means of which all persons participating in
the meeting can hear each other, or by written consents
of all the Trustees. Subject to the requirements of the
1940 Act, the Board, by affirmative vote of a majority
thereof and of all Investor Trustees, shall have the
exclusive right to amend, alter or repeal the By-Laws at
any meeting of the Board, except any particular By-Law
which is specified as not subject to alteration or repeal
by the Board.
Section 3.9 Miscellaneous Powers. Subject to
the other provisions of this Declaration, the Trustees
shall have the power to: (a) employ or contract with
such Persons as the Trustees may deem desirable for the
transaction of the business of the Fund; (b) perform acts
in furtherance of the Fund's investment objective; (c)
remove Trustees and elect and remove such officers as
they consider appropriate, and appoint from their own
number, and terminate, any one or more committees which
may exercise some or all of the power and authority of
the Trustees as the Trustees may determine; (d) purchase,
and pay for out of Fund Property its allocable share of
premiums therefor, insurance policies insuring the
Shareholders, Trustees, officers, investment advisors,
distributors, selected dealers or independent contractors
of the Fund against all claims arising by reason of
holding any such position or by reason of any action
taken or omitted by any such Person in such capacity,
whether or not constituting negligence, or whether or not
the Fund would have the power to indemnify such Person
against such liability; (e) to the extent permitted by
Section 4.2, indemnify any person with whom the Fund has
dealings, including the Investment Advisor, Transfer
Agent, Administrator, Custodian and selected dealers to
such extent as the Trustees shall determine; (f)
determine and change the fiscal year of the Fund and the
method by which its accounts shall be kept; and (g) adopt
a seal for the Fund but the absence of such seal shall
not impair the validity of any instrument executed on
behalf of the Fund.
Section 3.10 Interested Transactions.
Without in any way limiting or imposing further
requirements with respect to Sections 3.4(b) or 9.7
hereof, subject to compliance with the 1940 Act, no
agreement or transaction between the Fund, on the one
hand, and one or more of the Trustees or officers of the
Fund, or any entity in or with respect to which any
Trustee or officer of the Fund has any official position
or financial interest shall be void or voidable solely
for that reason or solely because such Trustee or officer
attends or participates in the meeting of the Trustees or
a committee of Trustees that authorizes such agreement or
transaction, or solely because his attendance is counted
toward a quorum of a committee or Quorum of the Board of
Trustees or his vote is counted toward such
authorization, if: (1) the material facts as to his
relationship or interest and as to the agreement or
transaction are disclosed to or known by the remaining
Trustees or such committee, and the Trustees or such
committee authorizes the agreement or transaction by the
requisite vote required pursuant to this Declaration,
excluding any Trustee subject to the foregoing provisions
whose vote is counted toward such authorization even
though the remaining Trustees are less than the otherwise
required number; (2) such material facts are disclosed to
or known by the Shareholders asked to vote on such
agreement or transaction, and such agreement or
transaction is specifically approved in good faith by the
Shareholders; or (3) such agreement or transaction is
fair to the Fund at the time it is approved or ratified
by the Trustees, or committee thereof, or the
Shareholders.
ARTICLE IV
LIMITATIONS OF LIABILITY OF SHAREHOLDERS,
TRUSTEES AND OTHERS
Section 4.1 No Personal Liability of
Shareholders, Trustees, etc. No Shareholder of the Fund
shall be subject in such capacity to any personal
liability whatsoever to any Person in connection with
Fund Property or the acts, obligations or affairs of the
Fund. Shareholders shall have the same limitation of
personal liability as is extended to stockholders of a
private corporation for profit incorporated under the
general corporation law of the State of Delaware. No
Trustee or officer of the Fund shall be subject in such
capacity to any personal liability whatsoever to any
Person, other than the Fund or its Shareholders, in
connection with Fund Property or the affairs of the Fund,
save only liability to the Fund or its Shareholders
arising from bad faith, willful misfeasance, gross
negligence (negligence in the case of those Trustees or
officers who are partners, directors, officers or
employees of the Investment Advisor ("Affiliated
Indemnitees")) or reckless disregard for his duty to such
Person; and, subject to the foregoing exception, all such
Persons shall look solely to the Fund Property for
satisfaction of claims of any nature arising in
connection with the affairs of the Fund. If any
Shareholder, Trustee or officer, as such, of the Fund, is
made a party to any suit or proceeding to enforce any
such liability, subject to the foregoing exception, he
shall not, on account thereof, be held to any personal
liability. The Fund shall indemnify and hold each
Shareholder harmless from and against all claims and
liabilities to which such Shareholder may become subject
by reason of his being or having been a Shareholder, and
shall reimburse such Shareholder for all legal and other
expenses reasonably incurred by him in connection with
any such claim or liability. The rights accruing to a
Shareholder under this Section 4.1 shall not exclude any
other right to which such Shareholder may be lawfully
entitled, nor shall anything herein contained restrict
the right of the Fund to indemnify or reimburse a
Shareholder in any appropriate situation even though not
specifically provided herein.
Section 4.2 Mandatory Indemnification. (a)
The Fund hereby agrees to indemnify the Trustees and
officers of the Fund (each such person being an
"indemnitee") against any liabilities and expenses,
including amounts paid in satisfaction of judgments, in
compromise or as fines and penalties, and reasonable
counsel fees reasonably incurred by such indemnitee in
connection with the defense or disposition of any action,
suit or other proceeding, whether civil or criminal,
before any court or administrative or investigative body
in which he may be or may have been involved as a party
or otherwise or with which he may be or may have been
threatened, while acting in any capacity set forth above
in this Section 4.2 by reason of his having acted in any
such capacity, except with respect to any matter as to
which he shall not have acted in good faith in the
reasonable belief that his action was in the best
interest of the Fund or, in the case of any criminal
proceeding, as to which he shall have had reasonable
cause to believe that the conduct was unlawful, provided,
however, that no indemnitee shall be indemnified
hereunder against any liability to any person or any
expense of such indemnitee arising by reason of (i)
willful misfeasance, (ii) bad faith, (iii) gross
negligence (negligence in the case of Affiliated
Indemnitees), or (iv) reckless disregard of the duties
involved in the conduct of his position (the conduct
referred to in such clauses (i) through (iv) being
sometimes referred to herein as "disabling conduct").
Notwithstanding the foregoing, with respect to any
action, suit or other proceeding voluntarily prosecuted
by any indemnitee as plaintiff, indemnification shall be
mandatory only if the prosecution of such action, suit or
other proceeding by such indemnitee was authorized by a
majority of the Trustees and a Majority of the Investor
Trustees.
(b) Notwithstanding the foregoing, no
indemnification shall be made hereunder unless there has
been a determination (1) by a final decision on the
merits by a court or other body of competent jurisdiction
before whom the issue of entitlement to indemnification
hereunder was brought that such indemnitee is entitled to
indemnification hereunder or, (2) in the absence of such
a decision, by (i) a majority vote of a quorum of those
Trustees who are neither "interested persons" of the Fund
(as defined in Section 2(a)(19) of the 1940 Act) nor
parties to the proceeding ("Disinterested Non-Party
Trustees") and a Majority of the Investor Trustees, that
the indemnitee is entitled to indemnification hereunder,
or (ii) if such quorum is not obtainable or even if
obtainable, if such majorities so direct, independent
legal counsel in a written opinion conclude that the
indemnitee should be entitled to indemnification
hereunder. All determinations to make advance payments
in connection with the expense of defending any
proceeding shall be authorized and made in accordance
with the immediately succeeding paragraph (c) below.
(c) The Fund shall make advance payments
in connection with the expenses of defending any action
with respect to which indemnification might be sought
hereunder if the Fund receives a written affirmation by
the indemnitee of the indemnitee's good faith belief that
the standards of conduct necessary for indemnification
have been met and a written undertaking to reimburse the
Fund unless it is subsequently determined that he is
entitled to such indemnification and if a majority of the
Trustees and a Majority of the Investor Trustees
determine that the applicable standards of conduct
necessary for indemnification appear to have been met.
In addition, at least one of the following conditions
must be met: (1) the indemnitee shall provide adequate
security for his undertaking, (2) the Fund shall be
insured against losses arising by reason of any lawful
advances, or (3) a majority of a quorum of the
Disinterested Non-Party Trustees and a Majority of the
Investor Trustees, or if a majority vote of such quorum
and a Majority of the Investor Trustees so direct,
independent legal counsel in a written opinion, shall
conclude, based on a review of readily available facts
(as opposed to a full trial-type inquiry), that there is
substantial reason to believe that the indemnitee
ultimately will be found entitled to indemnification.
(d) The rights accruing to any indemnitee
under these provisions shall not exclude any other right
to which he may be lawfully entitled.
(e) Subject to any limitations provided
by the 1940 Act and this Declaration, the Fund shall have
the power and authority to indemnify other Persons
providing services to the Fund to the full extent
provided by law as if the Fund were a corporation
organized under the Delaware General Corporation Law
provided that such indemnification has been approved by a
majority of the Trustees and a Majority of the Investor
Trustees.
Section 4.3 No Bond Required of Trustees.
Subject to Section 4.2(d)(i), no Trustee shall be
obligated to give any bond or other security for the
performance of any of his duties hereunder.
Section 4.4 No Duty of Investigation; Notice
in Fund Instruments, etc. No purchaser, lender, transfer
agent or other Person dealing with the Trustees or any
officer of the Fund shall be bound to make any inquiry
concerning the validity of any transaction purporting to
be made by the Trustees or by said officer or be liable
for the application of money or property paid, loaned or
delivered to or on the order of the Trustees or of said
officer. Every obligation, contract, instrument,
certificate, Share, other security of the Fund or
undertaking, and every other act or thing whatsoever
executed in connection with the Fund shall be
conclusively presumed to have been executed or done by
the executors thereof only in their capacity as Trustees
under this Declaration or in their capacity as officers
of the Fund. Every written obligation, contract,
instrument, certificate, Share, other security of the
Fund or undertaking made or issued by the Trustees or by
any officer of the Trust shall recite that the same is
executed or made by them not individually, but as
Trustees under this Declaration or as an officer of the
Fund, and that the obligations of the Fund under any such
instrument are not binding upon any of the Trustees or
Shareholders, individually, but bind only the Fund
estate, and may contain any further recital which they or
he may deem appropriate, but the omission of such recital
shall not operate to bind the Trustees or Shareholders
individually.
Section 4.5 Reliance on Experts, etc. Each
Trustee or officer of the Fund shall, in the performance
of his duties, be fully and completely justified and
protected with regard to any act or any failure to act
resulting from reliance in good faith upon the books of
account or other records of the Fund, upon an opinion of
counsel, or upon reports made to the Fund by any of its
officers or agents selected with reasonable care by the
Trustees or officers of the Fund, regardless of whether
such officer or agent may also be a Trustee.
ARTICLE V
SHARES OF BENEFICIAL INTEREST
Section 5.1 Beneficial Interest. The interest
of the beneficiaries hereunder shall be divided into
transferable Shares of beneficial interest with par value
of $.01 per Share. The number of Shares of beneficial
interest authorized hereunder is 200,000,000 Shares. All
Shares issued hereunder including, without limitation,
Shares issued in connection with a dividend in Shares or
a split of Shares, shall be fully paid and non-assessable
upon payment in full of such consideration not less than
the par value thereof as may be determined by the
Trustees.
The designations and powers, preferences and
rights, and the qualifications, limitations and
restrictions of the Shares are as set forth in this
Declaration.
Section 5.2 Rights of Shareholders. The
ownership of the Fund Property of every description and
the right to conduct any business hereinbefore described
are vested exclusively in the Trustees, and the
Shareholders shall have no right to call for any
partition or division of any property, profits, rights or
interests of the Fund nor can they be called upon to
assume any losses of the Fund or suffer any assessment of
any kind by virtue of their ownership of Shares if fully
paid. The Shares shall be personal property giving only
the rights in this Declaration specifically set forth
herein, the Delaware Act and any other applicable laws of
the State of Delaware. The Shares shall not entitle the
holder to preference, preemptive, appraisal, conversion
or exchange rights, except as the Trustees may determine
with respect to any class or series of Shares.
Section 5.3 Trust Only. It is the intention
of the Trustees to create only the relationship of
Trustee and beneficiary between the Trustees and each
Shareholder from time to time. It is not the intention
of the Trustees to create a general partnership, limited
partnership, joint stock association, corporation,
bailment or any form of legal relationship other than a
trust. Nothing in the Declaration shall be construed to
make the Shareholders, either by themselves or with the
Trustees, partners and members of a joint stock
association.
Section 5.4 Issuance of Shares. The Trustees
in their discretion may, from time to time without vote
of the Shareholders, issue Shares, in addition to the
then issued and outstanding Shares and Shares held in the
treasury, to Persons from whom the Fund has accepted, on
or prior to March 31, 1995, binding agreements to
subscribe for Shares. All issuances of Shares shall be
in accordance with the terms of the relevant forms of
subscription agreements, which forms shall have been
approved by the Trustees. The maximum dollar amount of
Shares for which subscription agreements may be accepted
is $600 million less the commitments of the Other
Investment Companies. In connection with any issuance of
Shares, the Trustees may issue fractional Shares and
Shares held in the treasury. Contributions to the Fund
may be accepted for whole Shares and/or 1/1,000ths of a
Share or integral multiples thereof.
Section 5.5 Capital Calls. The authority of
the Fund to require Shareholders to purchase Shares
pursuant to and in accordance with the terms and
provisions of their subscription agreements shall expire,
except with respect to calls made prior to that date, on
the later of (a) the third anniversary of the Initial
Closing, or (b) the fourth anniversary of the Initial
Closing if the Advisor extends such period with respect
to the Trust for such additional year pursuant to Section
5.5 of the Trust's Declaration of Trust. Notwithstanding
the foregoing, such period may be shortened as set forth
in Section 7.1. All such purchases required of the
Shareholders will be made on a pro rata basis in
proportion to each respective Shareholder's undrawn
Capital Commitment to the Fund.
Section 5.6 Register of Shares. A register or
registers shall be kept at the principal office of the
Fund or at an office of the Transfer Agent which shall
contain the names and addresses of the Shareholders and
the number of Shares held by them respectively and a
record of all transfers thereof. Such register shall be
conclusive as to who are the holders of the Shares and
who shall be entitled to receive dividends or
distributions or otherwise to exercise or enjoy the
rights of Shareholders. No Shareholder shall be entitled
to receive payment of any dividend or distribution, nor
to have notice given to him as herein or in the By-Laws
provided, until he has given his address to the Transfer
Agent or such other officer or agent of the Trustees as
shall keep the said register for entry thereon.
Section 5.7 Transfer of Shares. (a) The
Shares shall be transferable only with the prior written
consent of the Fund which will not be unreasonably
withheld. The Fund shall withhold consent to a transfer
of Shares if the Trust, the Fund or any of the Other
Investment Companies would be required to register such
transfer or any class of its securities under the
securities laws of any jurisdiction, if the transferee
would disqualify the Trust from being eligible to pay
performance fees under Rule 205-3 of the Investment
Advisers Act of 1940, as amended, or in the absence of a
written opinion of reputable counsel requested by the
Trust to the effect that the transfer of Shares
constitutes a private transaction exempt from
registration under U.S. securities laws. Any amendment
to this Section requires unanimous Trustee approval.
(b) The Shares shall be transferable on the
records of the Fund only by the record holder thereof or
by his agent thereunto duly authorized in writing, upon
delivery to the Trustees or the Transfer Agent of a duly
executed instrument of transfer, together with any
certificate or certificates (if issued) for such Shares
and such evidence of the genuineness of each such
execution and authorization and of other matters as may
reasonably be required. Upon such delivery the transfer
shall be recorded on the register of the Fund. Until
such record is made, the Shareholder of record shall be
deemed to be the holder of such Shares for all purposes
hereunder and neither the Trustees nor any Transfer Agent
or registrar nor any officer of the Fund shall be
affected by any notice of the proposed transfer.
(c) Any Person becoming entitled to any Shares
in consequence of the death, bankruptcy, or incompetence
of any Shareholder or otherwise by operation of law
shall, unless the transfer would be one to which the Fund
would be required to withhold consent under the second
sentence of Section 5.7(a), be recorded on the register
of Shares as the holder of such Shares upon production of
the proper evidence thereof to the Trustees or the
Transfer Agent; but until such record is made, the
Shareholder of record shall be deemed to be the holder of
such Shares for all purposes hereunder and neither the
Trustees nor any Transfer Agent or registrar nor any
officer of the Fund shall be affected by any notice of
such death, bankruptcy or incompetence, or other
operation of law.
(d) The following legends shall be set forth
on any Share certificate or other document evidencing
Shares:
THE OFFER AND SALE OF THE SHARES EVIDENCED
HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT").
THE SHARES WILL BE TRANSFERABLE ONLY WITH THE
PRIOR WRITTEN CONSENT OF THE FUND WHICH WILL
NOT BE UNREASONABLY WITHHELD. THE FUND SHALL
WITHHOLD CONSENT TO A TRANSFER OF SHARES IF THE
TRUST, THE FUND OR ANY OF THE OTHER INVESTMENT
COMPANIES WOULD BE REQUIRED TO REGISTER SUCH
TRANSFER OR ANY CLASS OF ITS SECURITIES UNDER
THE SECURITIES LAWS OF ANY JURISDICTION, IF THE
TRANSFEREE WOULD DISQUALIFY THE TRUST FROM
BEING ELIGIBLE TO PAY PERFORMANCE FEES UNDER
RULE 205-3 OF THE INVESTMENT ADVISERS ACT OF
1940, AS AMENDED, OR IN THE ABSENCE OF A
WRITTEN OPINION OF REPUTABLE COUNSEL REQUESTED
BY THE TRUST TO THE EFFECT THAT THE TRANSFER OF
SHARES CONSTITUTES A PRIVATE TRANSACTION EXEMPT
FROM REGISTRATION UNDER U.S. SECURITIES LAWS.
Section 5.8 Notices. Unless otherwise
provided herein, any and all notices hereunder to which
any Shareholder may be entitled and any and all
communications shall be deemed duly served or given if
mailed, postage prepaid, addressed to any Shareholder of
record at his last known address as recorded on the
register of the Fund. Such notice shall be effective on
the fifth Business Day after it is so given or served.
The Fund shall promptly send to each Shareholder a copy
of any notice received from the Trust.
Section 5.9 Treasury Shares. Shares held in
the treasury shall, until reissued pursuant to Section
5.4, not confer any voting rights on the Trustees, nor
shall such Shares be entitled to any dividends or other
distributions declared with respect to the Shares.
Section 5.10 Distribution. The Fund shall be
obligated to distribute, rather than reinvest, all
distributions received from the Trust after the end of
the Commitment Period that are not required to satisfy
the Fund's expenses and liabilities when due.
ARTICLE VI
DETERMINATION OF NET ASSET VALUE
Section 6.1 Net Asset Value. The net asset
value (the "NAV") of the Fund will be calculated
quarterly as of each January 31, April 30, July 31 and
October 31, in connection with each issuance of shares by
the Trust, the Fund and each of the Other Investment
Companies (after giving effect to the Trust's capital
call giving rise to such Share issuance), as of each
distribution declaration date (after giving effect to the
relevant declaration), as of the first anniversary of the
Trust's operations, as of the date on which the Trust
terminates, and more frequently as determined by the
Investment Advisor or a majority of the Trustees (each
such date hereinafter referred to as an "NAV
Determination Date"), in accordance with Valuation
Policies and guidelines approved from time to time by a
majority of the Trustees and all of the Investor
Trustees, provided that the Fund and each of the Other
Investment Companies shall use the same Valuation
Policies and guidelines.
ARTICLE VII
LIMITED EXISTENCE; TERMINATION
OF FUND; AMENDMENT; MERGERS, ETC.
Section 7.1 Limited Existence. (a) The Fund
shall terminate on the seventh anniversary of the Initial
Closing; provided, however, that such termination date
may be extended for a maximum of two separate one-year
extensions upon the concurrent extension of the term of
the Trust; and provided further, however, that such
termination date may be accelerated to any date upon the
termination of the Trust.
(b) The Investment Advisor shall promptly
notify each of the Trustees in writing if (i) either Mr.
Edens (or his successor) or a majority of the Management
Team ceases to devote substantially all of his or its
time to the affairs of the Trust and its downstream
Affiliates and the date as of which such services ceased
or will cease (the "BFM Trigger Date"); (ii) Mr. John
Grayken ceases to serve as Chairman of Brazos Advisors
LLC, or ceases to be primarily responsible for the day-
to-day operations of the counterparty to the coinvestment
agreement among the Trust, BCF and the strategic
coinvestor in commercial real estate debt ("Keystone")
(for so long as Keystone is the Trust's and BCF's
strategic coinvestor in commercial real estate debt
activities) and the date as of which such services ceased
or will cease (the "Keystone Trigger Date"); or (iii) the
Investment Advisor reasonably believes that there is a
substantial likelihood that the Trust or the Fund or the
Other Investment Companies has lost or will lose its tax
status as a regulated investment company ("RIC") (a "RIC
Trigger") (each such notification hereinafter referred to
as a "Trigger Notification").
As of the BFM Trigger Date, the Keystone
Trigger Date or the RIC Trigger, as the case may be, the
Trust, the Fund, the Other Investment Companies and BCF
shall be prohibited from entering into any new investment
commitments and from making additional drawdowns of
capital other than to fund existing investment
commitments and liabilities of the Trust, the Fund, the
Other Investment Companies or BCF until such time as a
majority of the Trustees of the Trust and all of the
Investor Trustees of the Trust consent to continue all
capital commitments and the operations of the Trust.
If such consent to continue all capital
commitments of the Trust and the operations of the Trust
is not given within 60 days following the date of a
Trigger Notification, the Trustees of the Trust shall
promptly call a meeting of the Trust's shareholders to be
held as soon as practicable, provided that the date of
such meeting shall not be sooner than 45 days after the
expiration of such 60 day period and, at such meeting,
holders of a majority of the Trust's shares may require
cancellation of all of the Trust's unfunded capital
commitments and, if they so elect, immediate liquidation
and winding up of the affairs of the Trust, the Fund and
the Other Investment Companies. In addition, unless all
of the Trust's unfunded capital commitments have been
canceled, pursuant to the aforementioned vote of
shareholders, the Investment Advisor shall cause the
Trust to promptly notify each shareholder of the Fund and
the Other Investment Companies in writing that each such
shareholder has the right, for five Business Days
following the date on which such notification is
effective (the "first option period"), to cancel its
respective unfunded capital commitment upon written
notice to the Fund or such Other Investment Company, as
the case may be. Upon expiration of the first option
period, the Investment Advisor shall cause the Trust to
promptly notify each shareholder of the Fund and each of
the Other Investment Companies that has not canceled its
unfunded capital commitment to the Fund or such Other
Investment Company of the aggregate amount of unfunded
capital commitments of the Trust that were canceled
during the first option period, the identity of the
shareholders of the Fund or such Other Investment
Company, as the case may be, that effected such
cancellations, the aggregate amount of remaining unfunded
capital commitments of the Trust, and the identity of the
shareholders of the Fund or such Other Investment
Company, as the case may be, that have a remaining
unfunded capital commitment as of the end of the first
option period; and each such shareholder shall have the
right, for five (5) Business Days following the date on
which such notification is effective, to cancel its
respective unfunded capital commitment by written notice
to the Fund or such Other Investment Company, as the case
may be. Immediately upon receipt of written notification
from a shareholder of the cancellation of such
shareholder's unfunded capital commitment pursuant to the
provisions hereof, the Investment Advisor will cause the
Fund and each Other Investment Company to exercise its
right to cancel a corresponding portion of its unfunded
capital commitment to the Trust by written notice to the
Trust. For purposes of this paragraph, the terms
"shareholder" and "capital commitment" shall mean
"Shareholder" and "Capital Commitment" when used in
reference to the Fund.
Section 7.2 Termination of Fund. Upon the
termination of the Fund:
(a) The Fund shall carry on no business
except for the purpose of winding up its affairs;
(b) The Trustees shall proceed to wind up
the affairs of the Fund and all of the powers of the
Trustees under this Declaration shall continue until the
affairs of the Fund shall have been wound up, including
the power to fulfill or discharge the contracts of the
Fund, collect its assets, sell, convey, assign, exchange,
transfer or otherwise dispose of all or any part of the
remaining Fund Property (other than its investment in the
Trust) to one or more persons at public or private sale
for consideration which may consist in whole or in part
of cash, securities or other property of any kind,
discharge or pay its liabilities, and to do all other
acts appropriate to liquidate its business;
(c) After paying or adequately providing
for the payment of all liabilities, and upon receipt of
such releases, indemnities and refunding agreements as
they deem necessary for their protection, the Trustees
shall distribute the remaining Fund Property, in cash
only among the Shareholders according to their respective
rights; and
(d) After termination of the Fund and
distribution to the Shareholders as herein provided, a
majority of the Trustees shall execute and lodge among
the records of the Fund an instrument in writing setting
forth the fact of such termination, and the Trustees
shall thereupon be discharged from all further
liabilities and duties hereunder, and the rights and
interests of all Shareholders shall thereupon cease.
Section 7.3 Amendment Procedure. (a) Except
as otherwise provided herein and except as otherwise
required by law, this Declaration may be amended upon
such terms and conditions authorized at any meeting of
Shareholders called for that purpose by the affirmative
vote of not less than two-thirds of the Shares
outstanding and entitled to vote, or by an instrument or
instruments in writing without a meeting executed by
Shareholders with respect to not less than two-thirds of
such Shares. The Trustees may also amend this
Declaration without the vote or consent of Shareholders
to change the name of the Fund, to cure or correct any
inconsistent provision hereof, or if they deem it
necessary to conform this Declaration to the requirements
of applicable federal securities laws or regulations or
the requirements of the regulated investment company
provisions of the Code, but the Trustees shall not be
liable for failing so to do.
(b) No amendment may be made which would
change any rights with respect to any Shares by reducing
the amount payable thereon upon liquidation of the Fund
or by diminishing or eliminating any voting rights
pertaining thereto, except with the unanimous vote or
consent of the holders of the Shares so affected. No
amendment may be made to Section 9.6 of this Declaration
without the prior written consent of BlackRock.
(c) Nothing contained in this Declaration
shall permit the amendment of this Declaration to impair
the exemption from personal liability of the
Shareholders, Trustees or officers of the Fund or to
permit assessment upon Shareholders in excess of the
amounts set forth in their subscription agreements.
(d) No amendment may be made under this
Section 7.3 which shall amend, alter, change or repeal
any of the provisions of Sections 2.2(d), 7.1, 7.2, 7.3,
7.4 or any other Shareholder voting requirements unless
the amendment, alteration, change or repeal shall receive
the affirmative vote or consent of not less than seventy-
five percent (75%) of the Shares. Such affirmative vote
or consent shall be in addition to the vote or consent of
the holders of Shares otherwise required by this
Declaration or by law, whether now or hereafter
authorized.
(e) No amendment may be made under this
Section 7.3 which shall amend, alter, change or repeal
any voting requirement applicable to Investor Trustees or
Trustees, unless the proposed amendment, alteration,
change or repeal shall receive the affirmative approval
in the form of a vote of all of the Investor Trustees
(whether or not present) or a majority of the Trustees,
as the case may be.
(f) The provisions relating directly or
indirectly to cumulative voting may not be amended
without the approval of each Shareholder which would be
entitled through cumulative voting to elect a Trustee if
the entire Board was then being elected.
Section 7.4 Merger, Consolidation and Sale of
Assets. The Fund may merge or consolidate with any other
corporation, association, trust, partnership or other
organization or may sell, lease or exchange all or
substantially all of the Fund Property, including its
good will, upon such terms and conditions and for such
consideration when and as authorized at any meeting of
Shareholders called for the purpose by the affirmative
vote of not less than two-thirds of the Shares entitled
to vote.
ARTICLE VIII
SHAREHOLDERS
Section 8.1 Meetings of Shareholders. Annual
meetings of the Shareholders shall not be required. A
meeting of Shareholders may be called at any time by a
majority of the Trustees and shall be called by any
Trustee for any proper purpose upon written request of
Shareholders of the Fund holding in the aggregate: with
respect to matters requiring voting by the Shareholders,
not less than 20% of the outstanding Shares, such request
specifying the purpose or purposes for which such meeting
is to be called; or, in the case of a meeting for the
purpose of voting on the question of removal of any
Trustee or Trustees, upon written request of the
Shareholders entitled to vote on the removal of such
Trustee or Trustees holding in the aggregate not less
than 10% of the outstanding Shares; or, in the case of a
meeting for the purpose of voting on the question of
removal of the independent public accountants of the
Fund, upon written request of Shareholders, holding in
the aggregate not less than 10% of the outstanding
Shares. Any Meeting shall be held within or without the
State of Delaware on such day and at such time as the
Trustees shall designate and, in the case of any meeting
called by a Trustee as a result of a Shareholder's
written request, within sixty (60) days of such written
request or such longer period as is approved by the
Trustee calling such meeting. The Fund shall exercise
its right to seek to call a meeting of shareholders of
the Trust if so requested in writing by the holders of
not less than 20% of the Fund's outstanding Shares.
Section 8.2 Voting and Other Actions.
Shareholders shall have no power to vote on any matter
except matters on which a vote of Shareholders is
required by applicable law, the Trust's Declaration of
Trust or By-Laws, this Declaration, the Fund's By-Laws or
resolution of the Trustees. On each matter (including
the election or removal of each director or trustee of
any other entity) on which the Fund is authorized or
permitted to vote, consent or act with respect to any
Fund Property, the Fund will poll, in writing, each
Shareholder to determine the number of Shares owned of
record by such Shareholder as to which such Shareholder
would vote for or against, or would abstain with respect
to, such matter and the Fund will vote, consent or act
with respect to the Fund Property to which such vote,
consent or act is being taken (or abstain) or made solely
in direct proportion (on a Share by Share basis) to the
responses it has received, with any failure to respond
resulting in a corresponding failure by the Fund to vote
for or against or abstain. The Fund will keep a written
record of each such poll and shall promptly send a notice
to each Shareholder who did not participate in such poll
of any action taken as a result thereof. For the purpose
of conducting such poll, the Trustees shall utilize the
same record date as that utilized by the entity
constituting Fund Property.
Section 8.3 Notice of Meeting and Record Date.
Notice of all meetings of Shareholders and all meetings
of the shareholders of the Trust, stating the time, place
and purposes of the meeting, shall be given by the
Trustees by mail to each Shareholder and to each
Shareholder of record of the Fund or Other Investment
Companies and of the Trust entitled to vote thereat at
his registered address, mailed at least 10 Business Days
and not more than 90 days before the meeting. Only the
business stated in the notice of the meeting shall be
considered at such meeting. Any adjourned meeting may be
held as adjourned without further notice. For the
purposes of determining the Shareholders who are entitled
to notice of and to vote at any meeting, the Trustees
may, without closing the transfer books, fix a date not
more than 90 days prior to the date of such meeting of
Shareholders as a record date for the determination of
the Persons to be treated as Shareholders of record for
such purposes.
Section 8.4 Quorum and Required Vote. The
holders of a majority of outstanding Shares entitled to
vote thereat of the Fund present in person or by proxy
shall constitute a quorum at any meeting of the
Shareholders for purposes of conducting business on which
a vote of Shareholders of the Fund is being taken (which
shall be deemed to exclude the polling of Shareholders
pursuant to Section 8.2). Subject to any provision of
the 1940 Act, this Declaration or (to the extent
authorized) resolution of the Trustees specifying a
greater or lesser vote requirement for the transaction of
any item of business at any meeting of Shareholders, the
affirmative vote of a Majority of the Shareholder Vote
present in person or represented by proxy and entitled to
vote on the subject matter shall be the act of the
Shareholders with respect to such matter. Except as
otherwise provided in this Declaration, each whole Share
shall be entitled to one vote as to any matter on which
it is entitled to vote and each fractional Share shall be
entitled to a proportionate fractional vote. Until
Shares are issued, the Trustees may exercise all rights
of Shareholders and may take any action required by law,
this Declaration or the By-Laws to be taken by
Shareholders. The By-Laws may include further
provisions, not inconsistent with this Declaration, for
Shareholder votes and meetings and related matters. If
at any meeting of Shareholders, one or more of the
Shareholders is not present in person or by proxy and has
not indicated in writing that it chooses not to be
present, the Trust shall adjourn such meeting for a
period of two Business Days for the purpose of
determining whether such Shareholder desires to be
present at such meeting and, if so, shall adjourn such
meeting for a further period of 10 Business Days for the
purpose of permitting such Shareholder to be present at
such meeting.
Section 8.5 Proxies, etc. At any meeting of
Shareholders, any holder of Shares entitled to vote
thereat may vote by properly executed proxy, provided
that no proxy shall be voted at any meeting unless it
shall have been placed on file with the Secretary, or
with such other officer of the Fund as the Secretary may
direct, for verification prior to or simultaneously with
the time at which such vote shall be taken. Pursuant to
a resolution of a majority of the Trustees, proxies may
be solicited in the name of one or more Trustees or one
or more of the officers of the Fund. Only Shareholders
of record shall be entitled to vote. When any Share is
held jointly by several persons, any one of them may vote
at any meeting in person or by proxy in respect of such
Share, but if more than one of them shall be present at
such meeting in person or by proxy, and such joint owners
or their proxies so present disagree as to any vote to be
cast, such vote shall not be received in respect of such
Share. A proxy purporting to be executed by or on behalf
of a Shareholder shall be deemed valid unless challenged
at or prior to its exercise, and the burden of proving
invalidity shall rest on the challenger. If the holder of
any such Share is a minor or a person of unsound mind,
and subject to guardianship or to the legal control of
any other person as regards the charge or management of
such Share, he may vote by his guardian or such other
person appointed or having such control, and such vote
may be given in person or by proxy.
Section 8.6 Reports. The Fund will send to
each of its Shareholders with respect to the Fund (i)
annual reports with audited annual financial statements,
(ii) semiannual reports with unaudited financial
statements and (iii) copies of all tax filings made by
the Fund. The Fund shall promptly send to each of its
Shareholders a copy of any report and any other written
information received from the Trust, including any report
of the Trust related to items (i), (ii) and (iii) herein.
Section 8.7 Shareholder Action by Written
Consent. Any action which may be taken by Shareholders
by vote may be taken without a meeting if the
Shareholders entitled to vote thereon of the same
proportion of Shares required for approval of such action
at a meeting of Shareholders consent to the action in
writing and the written consents are filed with the
records of the meetings of Shareholders. Such consent
shall be treated for all purposes as a vote taken at a
meeting of Shareholders. The Fund shall promptly notify
all Shareholders, including non-consenting Shareholders,
of the results of any action so taken.
ARTICLE IX
MISCELLANEOUS
Section 9.1 Filing. This Declaration and any
amendment hereto shall be filed and recorded in such
places as may be required under the laws of Delaware and
may also be filed or recorded in such other places as the
Trustees deem appropriate. A restated Declaration,
integrating into a single instrument all of the
provisions of the Declaration which are then in effect
and operative, may be executed from time to time by a
majority of the Trustees and shall upon filing with the
Secretary of the State of Delaware or lodging with the
permanent records of the Fund, be conclusive evidence of
all amendments contained therein and may thereafter be
referred to in lieu of the original Declaration and the
various amendments thereto.
Section 9.2 Governing Law. This Declaration
of Trust and the Fund created hereunder shall be governed
by and construed and administered according to the
Delaware Act and the other applicable laws of the State
of Delaware. The Fund shall be of the type commonly
called a Delaware business trust, and, subject to any
limitations expressed herein, the Fund may exercise all
powers or privileges which are ordinarily exercised by
such a trust under Delaware law and the absence of a
specific reference herein to any such power or privilege
shall not imply that the Fund may not exercise such power
or privilege.
Section 9.3 Counterparts. This Declaration
may be simultaneously executed in several counterparts,
each of which shall be deemed to be an original, and such
counterparts, together, shall constitute one and the same
instrument, which shall be sufficiently evidenced by any
such original counterpart.
Section 9.4 Reliance by Third Parties. Any
certificate executed by an individual who, according to
the records of the Fund appears to be a Trustee
hereunder, certifying: (a) the number or identity of
Trustees or Shareholders, (b) the due authorization of
the execution of any instrument or writing, (c) the form
of any vote passed at a meeting of Trustees or
Shareholders, (d) the fact that the number of Trustees or
Shareholders present at any meeting or executing any
written instrument satisfies the requirements of this
Declaration, (e) the form of any By-Laws adopted by or
the identity of any officers elected by the Trustees, or
(f) the existence of any fact or facts which in any
manner relate to the affairs of the Fund, shall be
conclusive evidence as to the matters so certified in
favor of any Person dealing with the Trustees and their
successors.
Section 9.5 Provisions in Conflict with Law or
Regulations. (a) The provisions of the Declaration are
severable, and if the Trustees shall determine, with the
advice of counsel, that any of such provisions are in
conflict with the 1940 Act, the regulated investment
company provisions of the Code, or any amendments or
successor statute thereto, or with other applicable laws
and regulations, the conflicting provision shall be
deemed not to constitute and never to have constituted a
part of the Declaration; provided, however, that such
determination shall not affect any of the remaining
provisions of the Declaration or render invalid or
improper any action taken or omitted prior to such
determination.
(b) If any provision of the Declaration
shall be held invalid or unenforceable in any
jurisdiction, such invalidity or unenforceability shall
apply only to such provision in such jurisdiction and
shall not in any manner affect such provision in any
other jurisdiction or any other provision of the
Declaration in any jurisdiction.
Section 9.6 Use of the Name "BlackRock".
BlackRock has consented to the use by the Fund of the
identifying word or name "BlackRock" in the name of the
Fund. Such consent is conditioned upon the employment of
BlackRock, its successors or any Affiliate thereof, as
Investment Advisor of the Fund. The name or identifying
word "BlackRock" may be used from time to time in other
connections and for other purposes by BlackRock or
Affiliated entities. BlackRock may require the Fund to
cease using "BlackRock" in the name of the Fund if the
Fund ceases to employ, for any reason, BlackRock, an
Affiliate, or any successor to BlackRock as Investment
Advisor of the Fund.
Section 9.7 Shareholder Coinvestment. (i)
Subject to the applicable coinvestment requirements
specified in Section 3.2(h) of the Trust's Declaration of
Trust, the Trust and its strategic coinvestor in
commercial mortgage assets will have a prior right to
acquire all or such portion, if any, of the subordinated
collateralized mortgage backed securities ("CMBS") issued
from time to time by the Trust's Mortgage Affiliates
(other than Residuals) as the Trust and such strategic
coinvestor respectively determine, (ii) the portion of
such subordinated CMBS, if any, not acquired by the Trust
and its strategic coinvestor will be offered to each
shareholder of the Fund and the Other Investment
Companies (or the investment entity specified by such
shareholder) that has designated an Investor Trustee,
provided that such shareholder (or such investment
entity) has obtained any necessary exemption from the SEC
with respect to relevant sections of the 1940 Act, and
(iii) each subordinated CMBS acquired pursuant to clause
(ii) will be acquired concurrently with and on terms no
more favorable than those applicable to the Trust's
acquisition of such subordinated CMBS.
IN WITNESS WHEREOF, the undersigned has caused
these presents to be executed as of the day and year
first above written.
John C. Deterding Laurence D. Fink
being a member of the Board being a member of the Board
of Trustees of the Fund. of Trustees of the Fund.
Kendrick R. Wilson, III Ralph L. Schlosstein
being a member of the Board being a member of the Board
of Trustees of the Fund. of Trustees of the Fund.
Laurence E. Hirsch Wesley R. Edens
being a member of the Board being a member of the Board
of Trustees of the Fund. of Trustees of the Fund.
Donald G. Drapkin Michael E. Klehm
being a member of the Board being a member of the Board
of Trustees of the Fund. of Trustees of the Fund.
Philip Halpern James Grosfeld
being a member of the Board being a member of the Board
of Trustees of the Fund. of Trustees of the Fund.
State of )
) ss:
County of )
Then personally appeared before me Laurence D.
Fink, Ralph L. Schlosstein, Wesley R. Edens, Michael E.
Klehm, Kendrick R. Wilson, III, Laurence E. Hirsch,
Donald G. Drapkin, John C. Deterding, Philip Halpern and
James Grosfeld who acknowledged the foregoing instrument
to be his free act and deed and the free act and deed of
the Trustee of BlackRock Fund Investors I.
Before me,
________________________
Notary Public
My Commission Expires: ___________________
BY-LAWS
OF
BLACKROCK FUND INVESTORS I
ARTICLE I
Offices
Section 1. Principal Office. The principal
office of BlackRock Fund Investors I (the "Fund") shall
be in the City of Wilmington, State of Delaware.
Section 2. Principal Executive Office. The
principal executive offices of the Fund shall be at 345
Park Avenue, New York, New York 10154.
Section 3. Other Offices. The Fund may have
such other offices in such places as the Trustees may
from time to time determine.
ARTICLE II
Meetings of Shareholders
Section 1. No Annual Meeting. No annual
meeting of the shareholders of the Fund shall be required
to be held for any purpose.
Section 2. Meetings. Meetings of the
shareholders may be called for any purpose or purposes as
provided by the Declaration of Trust of the Fund.
Section 3. Place of Meeting. Meetings of the
shareholders shall be held at such place within the
United States as the Board of Trustees may from time to
time determine.
Section 4. Notice of Meetings; Waiver of
Notice. Notice of the place, date and time of the
holding of each meeting of the shareholders and the
purpose or purposes of each meeting shall be given in
accordance with the Declaration of Trust of the Fund.
Notice by mail shall be deemed to be duly given when
deposited in the United States mail addressed to the
shareholder at his address as it appears on the records
of the Fund, with postage thereon prepaid.
Notice of any meeting of shareholders shall be
deemed waived by any shareholder who shall attend such
meeting in person or by proxy, or who shall, either
before or after the meeting, submit a signed waiver of
notice which is filed with the records of the meeting.
When a meeting is adjourned to another time and place,
unless the Board of Trustees, after the adjournment,
shall fix a new record date for an adjourned meeting, or
the adjournment is for more than sixty days after the
original record date, notice of such adjourned meeting
need not be given if the time and place to which the
meeting shall be adjourned were announced at the meeting
at which the adjournment is taken.
Section 5. Quorum. At all meetings of the
shareholders, the holders of a majority of the shares of
beneficial interest of the Fund ("Shares") entitled to
vote at the meeting, present in person or by proxy, shall
constitute a quorum for the transaction of any business,
except as otherwise provided by statute or by the
Declaration of Trust. In the absence of a quorum no
business may be transacted, except that the holders of a
majority of the Shares present in person or by proxy and
entitled to vote may adjourn the meeting from time to
time, without notice other than announcement thereat
except as otherwise required by these By-Laws, until the
holders of the requisite amount of Shares shall be so
present. At any such adjournment meeting at which a
quorum may be present any business may be transacted
which might have been transacted at the meeting as
originally called. The absence from any meeting, in
person or by proxy, of holders of the number of Shares of
the Fund in excess of a majority thereof which may be
required by the laws of the State of Delaware, the
Investment Company Act of 1940, as amended, or other
applicable statute, the Declaration of Trust, or these
By-Laws, for action upon any given matter shall not
prevent action at such meeting upon any other matter or
matters which may properly come before the meeting, if
there shall be present thereat, in person or by proxy,
holders of the number of Shares of the Fund required for
action in respect of such other matter or matters.
Section 6. Organization. At each meeting of
the shareholders, the Chairman of the Board (if one has
been designated by the Board), or in the absence or
inability of the Chairman of the Board to act, the
President, or in the absence or inability of the Chairman
of the Board and the President, a Vice President, shall
act as chairman of the meeting. The Secretary, or in the
Secretary's absence or inability to act, any person
appointed by the chairman of the meeting, shall act as
secretary of the meeting and keep the minutes thereof.
Section 7. Order of Business. The order of
business at all meetings of the shareholders shall be as
determined by the chairman of the meeting.
Section 8. Voting. Except as otherwise
provided by statute or the Declaration of Trust, each
holder of record of Shares of the Fund having voting
power shall be entitled at each meeting of the
shareholders to one vote for every such share standing in
such shareholder's name on the record of shareholders of
the Fund as of the record date determined pursuant to
Section 9 of this Article or if such record date shall
not have been so fixed, then at the later of (i) the
close of business on the day on which notice of the
meeting is mailed or (ii) the thirtieth day before the
meeting.
Each shareholder entitled to vote at any
meeting of shareholders may authorize another person or
persons to act for him by a proxy signed by such
shareholder or his attorney-in-fact. No proxy shall be
valid after the expiration of eleven months from the date
thereof, unless otherwise provided in the proxy. Every
proxy shall be revocable at the pleasure of the
shareholder executing it, except in those cases where
such proxy states that it is irrevocable and where an
irrevocable proxy is permitted by law. Except as
otherwise provided by statute, the Declaration of Trust
or these By-Laws, any corporate action to be taken by
vote of the shareholders shall be authorized by a
majority of the total votes cast at a meeting of
shareholders by the holders of Shares present in person
or represented by proxy and entitled to vote on such
action.
If a vote shall be taken on any question other
than the election of trustees, which shall be by written
ballot, then unless required by statute or these By-Laws,
or determined by the chairman of the meeting to be
advisable, any such vote need not be by ballot. On a
vote by ballot, each ballot shall be signed by the
shareholder voting, or by his proxy, if there be such
proxy, and shall state the number of Shares voted.
Section 9. Fixing of Record Date. The Board
of Trustees may set a record date for the purpose of
determining shareholders entitled to vote at any meeting
of the shareholders. The record date, which may not be
prior to the close of business on the day the record date
is fixed, shall be not more than ninety nor less than ten
days before the date of the meeting of the shareholders.
All persons who were holders of record of Shares at such
time, and not others, shall be entitled to vote at such
meeting and any adjournment thereof.
Section 10. Inspectors. The Board may, in
advance of any meeting of shareholders, appoint one or
more inspectors to act at such meeting or any adjournment
thereof. If the inspector shall not be so appointed or
if any of them shall fail to appear or act, the chairman
of the meeting may, and on the request of any shareholder
entitled to vote thereat shall, appoint inspectors. Each
inspector, before entering upon the discharge of his
duties, shall take and sign an oath to execute faithfully
the duties of inspector at such meeting with strict
impartiality and according to the best of his ability.
The inspectors shall determine the number of Shares
outstanding and the voting powers of each, the number of
Shares represented at the meeting, the existence of a
quorum, the validity and effect of proxies, and shall
receive votes, ballots or consents, hear and determine
all challenges and questions arising in connection with
the right to vote, count and tabulate all votes, ballots
or consents, determine the result, and do such acts as
are proper to conduct the election or vote with fairness
to all shareholders. On request of the chairman of the
meeting or any shareholder entitled to vote thereat, the
inspectors shall make a report in writing of any
challenge, request or matter determined by them and shall
execute a certificate of any fact found by them. No
trustee or candidate for the office of trustee shall act
as inspector of an election of trustees. Inspectors need
not be shareholders.
ARTICLE III
Board of Trustees
Section 1. General Powers. Except as
otherwise provided in the Declaration of Trust, the
business and affairs of the Fund shall be managed under
the direction of the Board of Trustees. All powers of
the Fund may be exercised by or under authority of the
Board of Trustees except as conferred on or reserved to
the shareholders by law or by the Declaration of Trust or
these By-Laws.
Section 2. Election and Term of Trustees. The
Trustees as to which vacancies exist shall be elected by
written ballot at a meeting of shareholders held for that
purpose unless otherwise provided by statute or the
Declaration of Trust. The term of office of each trustee
shall be from the time of his election and qualification
until the expiration of his term as provided in the
Declaration of Trust.
Section 3. Place of Meetings. Meetings of the
Board may be held at such place as the Board may from
time to time determine or as shall be specified in the
notice of such meeting.
Section 4. Regular Meeting. Regular meetings
of the Board may be held without notice at such time and
place as may be determined by the Board of Trustees.
Section 5. Special Meetings. Special meetings
of the Board may be called by any Trustee of the Fund or
by the Chairman of the Board or the President or
Secretary.
Section 6. No Annual Meeting. No annual
meeting of the Board of Trustees shall be required to be
held.
Section 7. Waiver of Notice of Meetings.
Notice of any special meeting need not be given to any
trustee who shall, either before or after the meeting,
sign a written waiver of notice which is filed with the
records of the meeting or who shall attend such meeting
except where a Trustee attends a meeting for the express
purpose of objecting to the transaction of any business
on the ground that the meeting has not been lawfully
called or convened. Except as otherwise specifically
required by these By- Laws, a notice or waiver of notice
of any meeting need not state the purpose of such
meeting.
Section 8. Quorum. A quorum for all meetings
of the Trustees shall be as specified in the Declaration
of Trust. In the absence of a quorum at any meeting of
the Board, a majority of the members of the Board present
thereat may adjourn such meeting to another time and
place until a quorum shall be present thereat. Notice of
the time and place of any such adjourned meeting shall be
given to the trustees who were not present at the time of
the adjournment and, unless such time and place were
announced at the meeting at which the adjournment was
taken, to the other trustees. At any adjourned meeting at
which a quorum is present, any business may be transacted
which might have been transacted at the meeting as
originally called.
Section 9. Organization. The Board may, by
resolution adopted by a majority of the entire Board,
designate a Chairman of the Board, who shall preside at
each meeting of the Board. In the absence or inability
of the Chairman of the Board to preside at a meeting,
another Trustee selected by a majority of the trustees
present, shall act as chairman of the meeting and preside
thereat. The Secretary (or, in his absence or inability
to act, any person appointed by the Chairman) shall act
as secretary of the meeting and keep the minutes thereof.
Section 10. Compensation. Trustees shall not
receive compensation from the Fund for services to the
Fund in their capacities as trustees or otherwise.
Section 11. Investment Advisor. The Board may
delegate the duty of management of the assets and the
administration of the Fund's operations to one or more
individuals or entities pursuant to a written contract or
contracts which have obtained the requisite approvals,
including the requisite approvals of renewals thereof, of
the Board of Trustees and/or the shareholders of the Fund
in accordance with the provisions of the Investment
Company Act of 1940, as amended, and the Declaration of
Trust.
ARTICLE IV
Officers, Agents and Employees
Section 1. Number of Qualifications. The
officers of the Fund shall be a President, a Secretary
and a Treasurer, each of whom shall be elected by the
Board of Trustees. The Board of Trustees may elect or
appoint one or more Vice Presidents and may also appoint
such other officers, agents and employees as it may deem
necessary or proper. Any two or more offices may be held
by the same person, except the offices of President and
Vice President, but no officer shall execute, acknowledge
or verify any instrument as an officer in more than one
capacity. Such officers shall be elected by the Board of
Trustees, each to hold office until his successor shall
have been duly elected and shall have qualified, or until
his death, or until he shall have resigned, or have been
removed, as hereinafter provided in these By-Laws. The
Board may from time to time elect, or delegate to the
President the power to appoint, such officers and such
agents, as may be necessary or desirable for the business
of the Fund. Such officers and agents shall have such
duties and shall hold their offices for such terms as may
be prescribed by the Board or by the appointing
authority.
Section 2. Resignations. Any officer of the
Fund may resign at any time by giving written notice of
resignation to the Board, the Chairman of the Board,
President or the Secretary. Any such resignation shall
take effect at the time specified therein or, if the time
when it shall become effective shall not be specified
therein, immediately upon its receipt; and, unless
otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
Section 3. Removal of Officer, Agent or
Employee. Any officer, agent or employee of the Fund may
be removed by the Board of Trustees with or without cause
at any time, and the Board may delegate such power of
removal as to agents and employees not elected or
appointed by the Board of Trustees. Such removal shall
be without prejudice to such person's contract rights, if
any, but the appointment of any person as an officer,
agent or employee of the Fund shall not of itself create
contract rights.
Section 4. Vacancies. A vacancy in any
office, either arising from death, resignation, removal
or any other cause, may be filled for the unexpired
portion of the term of the office which shall be vacant,
in the manner prescribed in these By-Laws for the regular
election or appointment to such office.
Section 5. Compensation. The officers of the
Fund shall not be compensated by the Fund.
Section 6. Bonds or Other Security. If
required by the Board, any officer, agent or employee of
the Fund shall give a bond or other security for the
faithful performance of his duties, in such amount and
with such surety or sureties as the Board may require.
Section 7. President. The President shall be
the chief executive officer of the Fund. He shall have,
subject to the control of the Board of Trustees, general
charge of the business and affairs of the Fund. He may
employ and discharge employees and agents of the Fund,
except such as shall be appointed by the Board, and he
may delegate these powers.
Section 8. Vice President. Each Vice
President shall have such powers and perform such duties
as the Board of Trustees or the President may from time
to time prescribe.
Section 9. Treasurer. The Treasurer shall
(a) have charge and custody of, and be
responsible for, all the funds and securities of the
Fund, except those which the Fund has placed in the
custody of a bank or trust company or member of a
national securities exchange (as that term is defined in
the Securities Exchange Act of 1934, as amended) pursuant
to a written agreement designating such bank or trust
company or member of a national securities exchange as a
custodian or sub-custodian of the property of the Fund;
(b) keep full and accurate accounts of
receipts and disbursements in books belonging to the
Fund;
(c) cause all moneys and other valuables
to be deposited to the credit of the Fund;
(d) receive, and give receipts for,
moneys due and payable, to the Fund from any source
whatsoever;
(e) disburse the funds of the Fund and
supervise the investment of its funds as ordered or
authorized by the Board or any authorized agent of the
Fund, taking proper vouchers therefor; and
(f) in general, perform all the duties
incident to the office of Treasurer and such other duties
as from time to time may be assigned to him by the Board
or the President.
Section 10. Secretary. The Secretary shall
(a) keep or cause to be kept in one or
more books provided for the purpose, the minutes of all
meetings of the Board, the committees of the Board and
the Shareholders;
(b) see that all notices are duly given
in accordance with the provisions of these By-Laws and as
required by law;
(c) be custodian of the records and the
seal of the Fund and affix and attest the seal to all
documents to be executed on behalf of the Fund under its
seal;
(d) see that the books, reports,
statements, certificates and other documents and records
required by law to be kept and filed are properly kept
and filed; and
(e) in general, perform all the duties
incident to the office of Secretary and such other duties
as from time to time may be assigned to him by the Board
or the President.
Section 11. Delegation of Duties. In case of
the absence of any officer of the Fund, or for any other
reason that the Board may deem sufficient, the Board may
confer for the time being the powers or duties, or any of
them, of such officer upon any other officer or upon any
trustee.
ARTICLE V
Shares of Beneficial Interest
Section 1. Book-Entry. Shares of the Fund
will be issued in book entry form and holders of Shares
will not be entitled to share certificates unless the
Board approves the issuance of Share certificates.
Section 2. Books of Accounts and Record of
Shareholders. There shall be kept at the principal
executive offices of the Fund correct and complete books
and records of account of all the business and
transactions of the Fund.
Section 3. Transfers of Shares. Transfers of
Shares of the Fund shall be made on the share records of
the Fund only by the registered holder thereof, or by his
attorney thereunto authorized by power of attorney duly
executed and filed with the Secretary or with a transfer
agent or transfer clerk, and on surrender of the
certificate or certificates, if issued, for such Shares
properly endorsed or accompanied by a duly executed stock
transfer power and the payment of all taxes thereon.
Except as otherwise provided by law, the Fund shall be
entitled to recognize the exclusive rights of a person in
whose name any Share or Shares stand on the record of
shareholders as the owner of such Share or Shares for all
purposes, including, without limitation, the rights to
receive dividends or other distributions, and to vote as
such owner, and the Fund shall not be bound to recognize
any equitable or legal claim to or interest in any such
Share or Shares on the part of any other person.
Section 4. Regulations. The Board may make
such additional rules and regulations, not inconsistent
with these By-Laws, as it may deem expedient concerning
the issue, transfer and registration of certificates for
Shares of the Fund. It may appoint, or authorize any
officer or officers to appoint, one or more transfer
agents or one or more transfer clerks and one or more
registrars.
Section 5. Fixing of a Record Date for
Dividends and Distributions. The Board may fix, in
advance, a date not more than ninety days preceding the
date fixed for the payment of any dividend or the making
of any distribution. Once the Board of Trustees fixes a
record date as the record date for the determination of
the shareholders entitled to receive any such dividend or
distribution, only the shareholders of record at the time
so fixed shall be entitled to receive such dividend or
distribution.
Section 6. Information to Shareholders and
Others. Any shareholder of the Fund or his agent may
inspect and copy during usual business hours the Fund's
By-Laws, minutes of the proceedings of its shareholders,
annual statements of its affairs, voting trust agreements
on file at its principal office and any of its other
books or records.
ARTICLE VI
Seal
The seal of the Fund shall be circular in form
and shall bear, in addition to any other emblem or device
approved by the Board of Trustees, the name of the Fund,
the year of its formation and words "Seal" and
"Delaware". Said seal may be used by causing it or a
facsimile thereof to be impressed or affixed or in any
other manner reproduced.
ARTICLE VII
Fiscal Year
Unless otherwise determined by the Board, the
fiscal year of the Fund shall end on the 31st day of
October.
ARTICLE VIII
Depositories and Custodians
Section 1. Depositories. The funds of the
Fund shall be deposited with such banks or other
depositories as the Board of Trustees of the Fund may
from time to time determine.
Section 2. Custodians. All securities and
other investments shall be deposited in the safe keeping
of such banks or other companies as the Board of Trustees
of the Fund may from time to time determine. Every
arrangement entered into with any bank or other company
for the safe keeping of the securities and investments of
the Fund shall contain provisions complying with the
Investment Company Act of 1940, as amended, and the
general rules and regulations thereunder.
ARTICLE IX
Execution of Instruments
Section 1. Checks, Notes, Drafts, etc.
Checks, notes, drafts, acceptances, bills of exchange and
other orders or obligations for the payment of money
shall be signed by such officer or officers or person or
persons as shall be designated from time to time by or
pursuant to the terms of any resolution adopted by the
Board of Trustees.
Section 2. Sale or Transfer of Securities.
Stock certificates, bonds or other securities at any time
owned by the Fund may be held on behalf of the Fund or
sold, transferred or otherwise disposed of subject to any
limits imposed by these By-Laws and pursuant to
authorization by the Board and, when so authorized to be
held on behalf of the Fund or sold, transferred or
otherwise disposed of, may be transferred from the name
of the Fund by the signature of the President or a Vice
President or the Treasurer or pursuant to any procedure
approved by the Board of Trustees, subject to applicable
law.
ARTICLE X
Independent Public Accountants
The firm of independent public accountants
which shall sign or certify the financial statements of
the Fund which are filed with the Securities and Exchange
Commission shall be selected annually by the Board of
Trustees and ratified by the shareholders in accordance
with the provisions of the Investment Company Act of
1940, as amended.
ARTICLE XI
Annual Statement
The books of account of the Fund shall be
examined by an independent firm of public accountants at
the close of each annual period of the Fund and at such
other times as may be directed by the Board. A report to
the shareholders based upon each such examination shall
be mailed to each shareholder of the Fund of record, on
such date with respect to each report as may be
determined by the Board, at his address as the same
appears on the books of the Fund. Such annual statement
shall also be available at any meeting of shareholders
held during the twelve-month period after such statement
is first available and shall be placed on file at the
Fund's principal office in the State of Delaware. Each
such report shall show the assets and liabilities of the
Fund as of the close of the annual or other period
covered by the report and the securities in which the
funds of the Fund were then invested. Such report shall
also show the Fund's income and expenses for the period
from the end of the Fund's fiscal year to the close of
the annual or other period covered by the report and any
other information required by the 1940 Act, as amended,
and shall set forth such other matters as the Board or
such firm of independent public accountants shall
determine.
ARTICLE XII
Amendments
The Board of Trustees, by affirmative vote of a
majority thereof and all of the Investor Trustees, shall
have the exclusive right to amend, alter or repeal these
By-Laws at any meeting of the Board, except any
particular By-Law which is specified as not subject to
alteration or repeal by the Board of Trustees, subject to
the requirements of the Investment Company Act of 1940,
as amended.
ARTICLE XIII
Shareholder Liability
No Shareholder of the Fund shall be subject to
any personal liability whatsoever to any person in
connection with the Fund property or the acts,
obligations or affairs of the Fund. Shareholders shall
have the same limitation on personal liability that is
extended to stockholders of a private corporation for
profit incorporated under the general corporation law of
the State of Delaware.
EXHIBIT A
THE SECURITIES REPRESENTED BY THIS CERTIFICATE
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR UNDER STATE SECURITIES LAWS. THE
TRANSFER OF THE SECURITIES REPRESENTED BY THIS
CERTIFICATE IS SUBJECT TO THE CONDITIONS SPECIFIED IN A
PURCHASER'S LETTER DATED AS OF , 1995 AND
ARTICLE 4 HEREOF. A COPY OF SUCH CONDITIONS WILL BE
FURNISHED BY THE COMPANY TO THE HOLDER HEREOF UPON
WRITTEN REQUEST AND WITHOUT CHARGE. THESE SECURITIES MAY
NOT BE RESOLD OR TRANSFERRED UNLESS SUCH CONDITIONS ARE
COMPLIED WITH AND UNLESS REGISTERED OR EXEMPT FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND APPLICABLE STATE SECURITIES LAWS.
BLACKROCK FUND INVESTORS I
Floating Rate Note due 2002
No. _________ $____________(U.S.)
New York, New York
, 1995
BLACKROCK FUND INVESTORS I, a Delaware business
trust duly organized and existing under the laws of the
State of Delaware (the "Fund," which term includes any
successor entity), for value received promises to pay to
[Purchaser's Name] or registered assigns, the principal
sum of DOLLARS
($_______ ), on _________ ____, 2002, or such earlier or
later date on which the Fund shall file an application
with the Securities and Exchange Commission to terminate
its registration therewith as an investment company in
connection with its termination and dissolution.
See Article 9 for certain definitions.
1. Payment of Interest. The Fund promises to
pay interest on the unpaid principal amount hereof
(computed on the basis of a 360-day year and the actual
number of days involved), for each Interest Period, until
maturity, at the interest rate per annum equal to (a) for
the first Interest Period, % and (b) for each
subsequent Interest Period the sum of (i) the Treasury
Bill Rate as of the first day of such Interest Period and
(ii) 2.50% per annum; provided, however, such rate per
annum shall not exceed the maximum rate permitted by
applicable law. Such per annum rate shall be calculated
by the Fund on the first Business Day of each Interest
Period and all such calculations shall, in the absence of
manifest error, be conclusive for all purposes and
binding on the holders of the securities.
The Fund shall pay interest on April 30 and
October 31 of each year (or, if such day is not a
Business Day, on the next succeeding Business Day),
commencing on April 30, 1995, and at the maturity date
(each an "Interest Payment Date"). Interest payable on
any Interest Payment Date shall accrue from and including
the immediately preceding Interest Payment Date (or the
date of original issue in the case of the first Interest
Payment Date) to and excluding such Interest Payment
Date.
2. Method of Payment. The Fund shall pay
interest on this Security to the Person who is the
registered Holder of this Security at the close of
business on the Record Date next preceding the Interest
Payment Date notwithstanding any registration of transfer
or exchange subsequent to the Record Date and prior to
the next succeeding Interest Payment Date. Unless the
Fund agrees in writing with a particular Holder to a
different method of payment, (a) the Holder must
surrender this Security to the Fund to collect payments
of principal and (b) payments of principal and interest
shall be made by check mailed to the Securityholder. The
Fund shall pay principal and interest in money of the
United States that at the time of payment is legal tender
for payment of public and private debts. If a payment
date is not a Business Day, payment shall be made on the
next succeeding day thereafter that is a Business Day,
provided that interest shall not accrue after such
payment date.
3. Register of Holders. The Fund shall keep
at its principal office a register (the "Register") in
which shall be entered the names and addresses of the
registered holders of the Securities and particulars of
the respective Securities held by them and of all
transfers and exchanges of such Securities. References
herein to the "Holder" of a Security or a
"Securityholder" shall mean the Person listed in the
Register as the payee of such Security unless the payee
shall have presented such Security to the Fund for
transfer and the transferee shall have been entered in
the Register as a subsequent holder, in which case the
term shall mean such subsequent holder. The ownership of
the Securities shall be proven by the Register. For the
purpose of paying principal and interest on the
Securities, the Fund shall be entitled to rely on the
names and addresses in the Register and, notwithstanding
anything to the contrary contained in this Security, no
Event of Default shall occur under Article 7 hereof if
payment of principal and interest is made to, and in
accordance with, the names and addresses and other
particulars contained in the Register.
4. Transfers or Exchange; Restrictions on
Transfer; Cancellation.
4.1 Transfer or Exchange. The Holder of this
Security, or of any Security or Securities issued upon
transfer or exchange of this Security or in substitution
for this Security pursuant to the provisions of this
Article 4 or of Section 10.8 hereof, may, at its option,
in person or by duly authorized attorney, surrender the
same for transfer or exchange at an office or agency
maintained by the Fund for such purpose and, within a
reasonable time thereafter and without expense (other
than transfer taxes and other governmental charges, if
any, the payment of which by the Holder shall have been
established to the satisfaction of the Fund), receive in
exchange therefor one or more duly executed printed or
typewritten Securities, each in the principal amount of
$100.00 or an integral multiple thereof (or in the case
of any Security so surrendered that is in a principal
amount less than $100.00, in an equal principal amount)
dated as of the date to which interest has most recently
been paid, and payable to such Person or Persons, all as
may be designated by such Holder, for the same aggregate
principal amount as the then unpaid principal amount of
the Security or Securities so surrendered. The Fund
covenants and agrees to take and cause to be taken all
action reasonably necessary to effect such transfers and
exchanges. The Fund hereby designates as its office
where the Register will be maintained and the Securities
may be presented for transfer, redemption or exchange,
its principal office, which shall be initially at the
address set forth in Section 10.1 hereof.
No service charge shall be made before any
registration of transfer or exchange of Securities, but
the Fund may require payment of a sum sufficient to cover
any stamp or transfer tax or other similar governmental
charge that may be imposed in connection with any
registration of transfer or exchange of Securities.
4.2 Restrictions on Transfer. Each Holder by
his acceptance of this Security covenants and agrees to
take and cause to be taken all action necessary to ensure
compliance with the restrictions on transfer of the
Securities of such Holder set forth herein and in the
Purchaser's Letter. Notwithstanding Section 4.1 hereof,
the Fund shall not be obligated to register the transfer
of any Security or reissue any Security unless such
restrictions on transfer shall have been complied with to
the satisfaction of the Fund.
4.3 Cancellation of Securities Paid, etc. All
Securities surrendered for the purpose of payment,
redemption, exchange or registration of transfer shall,
if surrendered to the Fund or any Paying Agent be
promptly cancelled by the Fund, and no Securities shall
be issued in lieu thereof except as expressly permitted
by any of the provisions contained herein.
5. Redemption.
5.1 Mandatory Redemption. Upon the occurrence
of an Event of Default the Fund shall notify each
Securityholder of the occurrence of such event within 60
days after it obtains knowledge thereof and will cause
all of the Securities to be redeemed on the Interest
Payment Date next succeeding the date of such notice at a
price equal to the Redemption Price, plus interest
accrued to but excluding the date fixed for redemption.
5.2 Redemption at the Fund's Option. The
Securities will be redeemable on any Interest Payment
Date at the option of the Fund, as a whole or from time
to time in part, upon not less than 30 nor more than 60
days notice by mail prior to the date fixed for
redemption. The Securities are so redeemable at the
Redemption Price, plus interest accrued to but excluding
the date fixed for redemption.
5.3 Notice of Redemption; Selection of
Securities. (a) Prior to any mandatory or optional
redemption, the Fund shall mail, within the respective
time period referred to in Section 5.1 and 5.2, a notice
to the Holders of Securities to be redeemed at their last
addresses as the same appear on the Register. The notice
if delivered in the manner herein provided shall be
conclusively presumed to have been duly given, whether or
not the Holder receives such notice. In any case,
failure to give such notice or any defect in the notice
to the Holder of any Security designated for redemption
as a whole or in part shall not affect the validity of
the proceedings for the redemption of any other Security.
(b) Each such notice of redemption shall
specify (i) whether such redemption is pursuant to
Section 5.1 or Section 5.2 hereof, (ii) the Redemption
Date, (iii) the Redemption Price, (iv) the place of
payment, (v) that payment will be made upon presentation
and surrender of such Securities, (vi) that interest
accrued to but excluding the Redemption Date will be paid
as specified in said notice, and (vii) that on and after
said Redemption Date interest thereon or on the portions
thereof to be redeemed will cease to accrue. If less
than all the Securities are to be redeemed the notice of
redemption shall specify by number the Securities to be
redeemed. In case any Security is to be redeemed in part
only, the notice of redemption shall state the portion of
the principal amount of Securities to be redeemed and
shall state that on and after the Redemption Date, upon
surrender of such Security, a new Security or Securities
in principal amount equal to the unredeemed portion
thereof will be issued.
(c) In every case of redemption pursuant
to Section 5.2 of less than all Securities, the
Securities or portions thereof to be redeemed shall be
selected by lot, on a pro rata basis, or in such other
manner as will not discriminate unfairly against any
Securityholder.
(d) Unless the context otherwise
requires, all provisions relating to the redemption of
Securities shall relate, in the case of any Security
redeemed or to be redeemed only in part, to the portion
of the principal of such Security which has been or is to
be redeemed.
5.4 Payment of Securities Called for
Redemption. If notice of redemption has been given as
provided in Section 5.3, the Securities or portions of
Securities with respect to which such notice has been
given shall become due and payable on the Redemption Date
and at the place stated in such notice at the Redemption
Price, together with interest accrued to but excluding
the date fixed for redemption, and on and after said date
(unless the Fund shall default in the payment of such
Securities at the Redemption Price, together with
interest accrued to said date) interest on the Securities
or portions of Securities so called for redemption shall
cease to accrue. On presentation and surrender of such
Securities at the place of payment in said notice
specified, the said Securities or the specified portions
thereof shall be paid and redeemed by the Fund at the
Redemption Price, together with interest accrued thereon
to the Redemption Date.
Upon presentation of any Security redeemed in
part only, the Fund shall execute and deliver to the
Holder thereof, at the expense of the Fund, a new
Security or Securities, of authorized denominations, in
principal amount equal to the unredeemed portion of the
Security so presented.
5.5 Redemption at the Option of the Holders.
(a) The Securities held by each Holder shall be subject
to redemption by the Fund, in whole or in part, at the
option of such Holder on October 31 of each year (or if
such day is not a Business Day, the next succeeding
Business Day) upon not less than 60 nor more than 90
days' notice to the Fund. The Securities are so
redeemable at the Redemption Price, plus interest accrued
to but excluding the date fixed for redemption. In order
to exercise such right to require the Fund to redeem
Securities held by a Holder, such Holder must surrender
such Security to the Fund during the notice period
referred to in the first sentence of this Section 5.5,
accompanied by a notice from such Holder setting forth
(a) the name of the Holder of such Security, (b) the
number of such Security and the principal amount of such
Security, (c) the principal amount, in integral multiples
of $100.00, of the Security to be redeemed and (d) a
statement that such Holder is thereby electing to have
such Security, or portion thereof, redeemed by the Fund
on the applicable redemption date.
(b) If any Securities are duly
surrendered to the Fund and accompanied by a notice given
as provided in Section 5.5(a), the Securities or portions
of Securities required to be redeemed in accordance with
such notice shall become due and payable on the date
fixed for redemption in accordance with Section 5.5(a) at
the Redemption Price, together with interest accrued to
but excluding the date fixed for redemption, and on and
after said date (unless the Fund shall default in the
payment of such Securities at the Redemption Price
together with interest accrued to said date) interest on
the Securities or portions thereof to be redeemed shall
cease to accrue. Upon surrender of any Security to be
redeemed in part only, the Fund shall execute and deliver
to the Holder thereof, at the expense of the Fund, a new
Security or Securities, of authorized denominations, in
principal amount equal to the unredeemed portion of the
Security so surrendered.
6. Consolidation, Merger, Conveyance, Transfer
or Lease; Other Covenants
6.1 Fund May Consolidate, etc., Only on
Certain Terms. The Fund shall not consolidate with or
merge into any other corporation or sell or transfer all
or substantially all of its properties and assets to
another corporation, unless:
(1) the corporation formed by such
consolidation or into which the Fund is merged
or the corporation which acquires such
properties and assets shall be a corporation
organized and existing under the laws of the
United States of America or any state thereof
or the District of Columbia and shall expressly
assume, by an assumption agreement, the due and
punctual payment of the principal of and
interest on all the Securities and the
performance of every covenant contained herein
on the part of the Fund to be performed or
observed; and
(2) immediately after giving effect to
such transaction, no Event of Default, and no
event which, after notice or lapse of time, or
both, would become an Event of Default, shall
have happened and be continuing.
6.2 Successor Corporation Substituted. Upon
any consolidation or merger, or any sale or transfer of
all or substantially all of the Fund's properties and
assets in accordance with Section 6.1, the successor
corporation formed by such consolidation or into which
the Fund is merged or to which such sale or transfer is
made shall succeed to, and be substituted for, and may
exercise every right and power of, the Fund under terms
of the Securities with the same effect as if such
successor corporation had been named as the Fund herein
and thereafter the predecessor corporation shall be
relieved from all obligations under the Securities.
6.3 Limitation on Incurrence of Additional
Indebtedness. The Fund shall not create, authorize,
issue, assume, incur or suffer to exist any indebtedness
for borrowed money or any direct or indirect guarantee of
such indebtedness except (a) the indebtedness evidenced
by the Securities or (b) other indebtedness in an
aggregate principal amount not to exceed at any one time
outstanding an amount equal to 10% of the Fund's net
asset value.
6.4 Limitation on Dividends and Other
Payments. The Fund shall not declare any dividend
(except a dividend in capital stock of the Fund), or
declare any other distribution, upon any class of capital
stock of the Fund, or purchase any such capital stock,
unless, in every such case, the Securities have at the
time of the declaration of any such dividend or
distribution or at the time of any such purchase an asset
coverage (as defined in the 1940 Act) of at least 300
percent (or such other percentage as may in the future be
required by law or, if lower, such other percentage as
may in the future be permitted by order of the SEC) after
deducting the amount of such dividend, distribution or
purchase price, as the case may be.
6.5 Payment of Securities. The Fund shall pay
the principal of and interest on the Securities on the
dates and in the manner provided in the Securities. An
installment of principal or interest shall be considered
paid on the date due if the Paying Agent holds on that
date money designated for and sufficient to pay the
installment.
6.6 Corporate Existence. Except as otherwise
permitted by Section 6.1 hereof and except in connection
with termination of the Fund, the Fund will do or cause
to be done all things necessary to preserve and keep in
full force and effect its corporate existence and the
rights (charter and statutory), licenses and franchises
of the Fund; provided that the Fund shall not be required
to preserve any such right, license or franchise, if the
preservation thereof is no longer desirable in the
conduct of the business of the Fund and the loss thereof
is not adverse in any material respect to the Holders.
6.7 Payment of Taxes and Other Claims. The
Fund will pay or discharge or cause to be paid or
discharged, before any penalty accrues thereon, (i) all
material taxes, assessments and governmental charges
levied or imposed upon the Fund or upon the income,
profits or property of the Fund, and (ii) all material
lawful claims for labor, materials and supplies which, if
unpaid, might by law become a lien upon the property of
the Fund; provided that the Fund shall not be required to
pay or discharge or cause to be paid or discharged any
such tax, assessment, charge or claims the amount,
applicability or validity of which is being contested in
good faith by appropriate proceedings and for which
adequate provision has been made.
7. Events of Default and Remedies.
7.1 Events of Default. "Event of Default",
wherever used herein means any one of the following
events (whatever the reason for such Event of Default and
whether it shall be voluntary or involuntary or be
effected by operation of law pursuant to any judgment,
decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(1) default in the payment of any
interest upon any Security when it becomes due
and payable, and continuance of such default
for a period of 30 days; or
(2) default in the payment of the
principal of any Security at its maturity; or
(3) default in the performance, or
breach, of any covenant or warranty of the Fund
contained in this Security (other than a
covenant or warranty a default in whose
performance or whose breach is elsewhere in
this Section specifically dealt with), and
continuance of such default or breach for a
period of 60 days after there has been given,
by registered or certified mail, to the Fund by
the Holders of at least 25% in aggregate
principal amount of the Securities then
Outstanding, a written notice specifying such
default or breach and requiring it to be
remedied and stating that such notice is a
"Notice of Default" hereunder; or
(4) the entry of a decree or order by a
court having jurisdiction in the premises
adjudging the Fund bankrupt or insolvent, or
the entry of an order for relief in any case or
proceeding for reorganization, arrangement,
adjustment or composition of or in respect of
the Fund under the Federal Bankruptcy Code or
any other applicable Federal or State law, or
appointing a receiver, liquidator, assignee,
trustee, sequestrator (or other similar
official) of the Fund or of any substantial
part of its property, or ordering the winding
up or liquidation of its affairs, and the
continuance of any such decree or order
unstayed and in effect for a period of 90
consecutive days; or
(5) the institution by the Fund of
proceedings to be adjudicated a bankrupt or
insolvent, or the consent by it to the
institution of bankruptcy or insolvency
proceedings against it, or the filing by it of
a petition or answer or consent seeking
reorganization or relief under the Federal
Bankruptcy Code or any other applicable Federal
or State law, or the consent by it to the
filing of any such petition or to the
appointment of a receiver, liquidator,
assignee, trustee, sequestrator (or other
similar official) of the Fund or of any
substantial part of its property.
7.2 Acceleration of Maturity; Rescission and
Annulment. If an Event of Default (other than an Event
of Default described in clause (5) or (6) of Section 7.1)
occurs and is continuing, then and in every such case the
Holders of no less than 25% in aggregate principal amount
of the Securities then Outstanding may declare the
principal of all the Securities to be due and payable
immediately, by a notice in writing to the Fund, and upon
any such declaration such principal shall become
immediately due and payable. In the case of an Event of
Default described in clause (5) or (6) of Section 7.1,
the Securities then Outstanding shall become due and
payable immediately without any declaration or act on the
part of the Holders.
At any time after such a declaration of
acceleration has been made and before a judgment or
decree for payment of the money due has been obtained
against the Fund as hereinafter in this Article provided,
the Holders of a majority in aggregate principal amount
of the Securities then Outstanding, by written notice to
the Fund, may rescind and annul such declaration and its
consequences if
(1) the Fund has paid or deposited with
any Paying Agent a sum sufficient to pay
(A) all overdue installments of
interest on all Securities,
(B) the principal of and premium, if
any, on any Securities which have become
due otherwise than by such declaration of
acceleration and interest thereon at the
rate borne by the Securities,
(C) to the extent that payment of
such interest is lawful, interest upon
overdue interest at the rate borne by the
Securities,
(D) the reasonable compensation,
expenses, disbursements and advances of
the Holders and any of their agents and
counsel;
and
(2) all Events of Default, other than the
non-payment of the principal of Securities
which have become due solely by such
acceleration, have been cured or waived as
provided in Section 7.7.
No such rescission shall affect any subsequent default or
impair any right consequent thereon.
7.3 Restoration of Rights and Remedies. If
any Securityholder has instituted any proceeding to
enforce any right or remedy under this Security and such
proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to such
Securityholder, then and in every such case the Fund and
the Securityholders shall, subject to any determination
in such proceeding, be restored severally and
respectively to their former positions hereunder, and
thereafter all rights and remedies of the Securityholders
shall continue as though no such proceeding had been
instituted.
7.4 Rights and Remedies Cumulative. No right
or remedy herein conferred upon or reserved to any
Securityholder is intended to be exclusive of any other
right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder,
or otherwise, shall not prevent the concurrent assertion
or employment of any other appropriate right or remedy.
7.5 Delay or Omission Not Waiver. No delay or
omission of any Securityholder to exercise any right or
remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any
such Event of Default or an acquiescence therein. Every
right and remedy given by this Article 7 or by law to any
Securityholder may be exercised from time to time, and as
often as may be deemed expedient, by any such
Securityholder, as the case may be.
7.6 Control by Securityholders. The Holders
of a majority in aggregate principal amount of the
Outstanding Securities shall have the right to direct the
time, method and place of conducting any proceeding for
any remedy available to any Holders, provided that such
direction shall not be in conflict with any rule of law
or with this Security.
7.7 Waiver of Past Defaults. The Holders of
not less than a majority in aggregate principal amount of
the Securities then Outstanding may on behalf of the
Holders of all the Securities waive any past default
hereunder and its consequences, except a default
(1) in the payment of the principal of or
interest on any Security, or
(2) in respect of a covenant or provision
hereof which under Article 8 cannot be modified
or amended without the consent of the Holder of
each Outstanding Security affected, or
(3) the termination of the Fund by the
Fund's sharesholders.
Upon any such waiver, such default shall cease
to exist, and any Event of Default arising therefrom
shall be deemed to have been cured, for every purpose of
this Security; but no such waiver shall extend to any
subsequent or other default or impair any right
consequent thereon.
7.8 Waiver of Stay or Extension Laws. The
Fund covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, or plead, or in
any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect
the covenants or the performance of this Security; and
the Fund (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any
such law, and covenants that it will not hinder, delay or
impede the execution of any power herein granted to any
Securityholder, but will suffer and permit the execution
of every such power as though no such law had been
enacted.
8. Amendments, Supplements And Waivers.
8.1 Without Consent of Securityholders. The
Fund, when authorized by a Board Resolution, at any time
and from time to time, may amend or supplement the
Securities without notice to or consent of any
Securityholder for any of the following purposes:
(1) to evidence the succession of another
corporation to the Fund, and the assumption by
any such successor of the covenants of the Fund
herein contained; or
(2) to add to the covenants of the Fund or
to add Events of Default, for the benefit of
the Holders of the Securities, or to surrender
any right or power herein conferred upon the
Fund; or
(3) to cure any ambiguity, to correct or
supplement any provision herein which may be inconsistent
with any other provision herein, or to make any other
provisions with respect to matters or questions arising
under this Security which shall not be inconsistent with
the provisions of this Security, provided such action
shall not adversely affect the interest of the Holders of
the Securities in any material respect.
8.2 With Consent of Securityholders. With the
consent of the Holders of not less than a majority in
aggregate principal amount of the Securities Outstanding
and when authorized by a Board Resolution, the Fund may
amend or supplement the Securities for the purpose of
adding any provisions to or changing in any manner or
eliminating any of the provisions of the Securities or of
modifying in any manner the rights of the Holders of the
Securities; provided, however, that no such supplement or
amendment shall, without the consent of the Holder of
each Outstanding Security affected thereby,
(1) change the stated maturity date of
the principal of, or any installment of
interest on, any Security, or reduce the
principal amount thereof or the interest
thereon, or the coin or currency in which, any
Security or the interest thereon is payable, or
impair the right to institute suit for the
enforcement of any such payment after the due
date thereof (or, in the case of redemption, on
or after the Redemption Date), or
(2) reduce the percentage in principal
amount of the Outstanding Securities, the
consent of whose Holders is required for any
such supplement or amendment, or the consent of
whose Holders is required for any waiver (of
compliance with certain provisions of the
Securities or certain defaults hereunder and
their consequences) provided for in the
Securities, or
(3) modify any of the provisions of this
Section or Section 7.7, except to increase any
such percentage or to provide that certain
other provisions of the Securities cannot be
modified or waived without the consent of the
Holder of each Security affected thereby.
Before an amendment, supplement or waiver under
this Section becomes effective, the Fund shall mail to
the Holders affected thereby a notice briefly describing
the amendment, supplement or waiver.
8.3 Effect of Supplement or Amendment. Upon
the execution of any supplement or amendment properly
adopted under this Article, the Securities (including
this Security) shall be modified in accordance therewith,
and such supplement or amendment shall form a part of
this Security for all purposes; and every Holder of
Securities theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby.
9. Certain Definitions.
For all purposes of this Security, except as
otherwise expressly provided or unless the context
otherwise requires:
(1) the terms defined in this Article
have the meanings assigned to them in this
Article, and include the plural as well as the
singular; and
(2) all accounting terms not otherwise
defined herein have the meanings assigned to
them in accordance with generally accepted
accounting principles.
"Affiliate" of any specified Person means any
other Person directly or indirectly controlling or
controlled by or under direct or indirect common control
with such specified Person. For the purposes of this
definition, "control" when used with respect to any
specified Person means the power to direct the management
and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Board of Trustees" means either the board of
trustees of the Fund or any duly authorized committee of
that board.
"Board Resolutions" means a copy of a
resolution certified by the Secretary or an Assistant
Secretary of the Fund to have been duly adopted by the
Board of Trustees and to be in full force and effect on
the date of such certification.
"Business Day" shall mean a day on which the
New York Stock Exchange is open for trading and which is
not a Saturday, Sunday or other day on which banks in The
City of New York, New York are authorized or obligated by
law or executive order to close.
"Event of Default" has the meaning specified in
Article 7.
"Fund" means the Person named as the "Fund" in
the first paragraph of this instrument until a successor
entity shall have become such pursuant to the applicable
provisions of this Security, and thereafter "Fund" shall
mean such successor entity.
"Interest Period" shall mean the period
beginning on and including November 1 of each year and
ending on and including October 31 of the following year.
"Maturity" when used with respect to any
Security means the date on which the principal of such
Security becomes due and payable as therein or herein
provided, whether at the stated maturity or by
declaration of acceleration, call for redemption or
otherwise.
"1940 Act" means the Investment Company Act of
1940.
"Outstanding" when used with respect to
Securities means, as of the date of determination, all
Securities theretofore executed and delivered, except:
(i) Securities which have been
cancelled pursuant to Section 4.3; and
(ii) Securities in exchange for
or in lieu of which other Securities have been
executed and delivered;
provided, however, that in determining whether the
Holders of the requisite principal amount of Securities
Outstanding have given any request, demand,
authorization, direction, notice, consent or waiver under
the Securities, Securities owned by the Fund or any other
obligor upon the Securities or any Affiliate of the Fund
or such other obligor shall be disregarded and deemed not
to be Outstanding. Securities so owned which have been
pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the
Holders of a majority of the Securities then Outstanding
the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Fund or any
other obligor upon the Securities or any Affiliate of the
Fund or such other obligor.
"Paying Agent" means any Person authorized by
the Fund to pay the principal of or interest on any
Securities on behalf of the Fund, which may include the
Fund or any subsidiary of the Fund.
"Person" means any individual, corporation,
partnership, joint venture, association, joint-stock
company, trust, limited liability company, unincorporated
organization or government or any agency or political
subdivision thereof.
"Purchaser's Letter" means the Purchaser's
Letter, dated as of _________ __, 1995, between the Fund
and the original purchaser of this Security.
"Redemption Price" when used with respect to
any Security or portion thereof to be redeemed means 100%
of the principal amount thereof.
"Register" has the meaning specified in Article
3.
"SEC" means the United States Securities and
Exchange Commission.
"Securities" means the Fund's Floating Rate
Notes due on __________ __, 2002 or such earlier or later
date as may determined in accordance with the provisions
thereof.
"Treasury Bill Rate", on any date of
determination, shall mean the arithmetic average (rounded
to the nearest basis point) of the per annum yield to
maturity values, adjusted to constant maturities of one
year, for the five consecutive Business Days immediately
preceding such date of determination as read from the
yield curves of the most actively traded marketable
United States Treasury fixed interest rate securities (x)
constructed daily by the United States Treasury
Department (i) as published by the Federal Reserve Board
in its Statistical Release H.15 (519), "Selected Interest
Rates" (the "FRB Release"), which average yield to
maturity values currently are set forth in such
statistical release under the caption "U.S. Government
Securities--Treasury Constant Maturities," or (ii) if the
FRB Release is not then published, as published by the
Federal Reserve Board in any release comparable to its
FRB Release or (iii) if the Federal Reserve Board shall
not be publishing a comparable release, as published in
any official publication or release of any other United
States government department or agency, or (y) if the
United States Treasury Department shall not then be
constructing such yield curves, as constructed by the
Federal Reserve Board or any other United States
government department or agency and published as set
forth in (x) above. However, if the Treasury Bill Rate
cannot be determined as provided above, then the Treasury
Bill Rate shall mean the arithmetic average (rounded to
the nearest basis point) of the per annum yields to
maturity for each of five Business Days preceding such
date of determination of all of the issues of actively
traded marketable United States Treasury fixed interest
rate securities with a maturity which is not less than
nine months less nor more than fifteen months (excluding
all such securities which can be surrendered at the
option of the holder at face value in payment of any
Federal estate tax, which provide tax benefits to the
holder or which were issued at a substantial discount)
(1) as published in all editions of The Wall Street
Journal printed for distribution in the United States or
(2) if The Wall Street Journal shall cease such
publication, based on average asked prices (or yields) as
quoted by each of three Untied States government
securities dealers of recognized national standing
selected by the Board of Trustees of the Fund for such
purpose.
10. Miscellaneous.
10.1 Notices. Except as otherwise expressly
provided for herein, all notices, requests and other
communications to any party hereunder shall be in writing
(including facsimile or similar writing) and shall be
given to such party at its address or facsimile number
set forth below, or such other address or facsimile
number as such party may hereinafter specify for the
purpose (in the case of the Fund, by notice in accordance
herewith to each Holder or, in the case of each Holder,
by notice in accordance herewith to the Fund). Each such
notice, request or other communication shall be effective
(i) if given by facsimile, when such facsimile is
transmitted to the facsimile number specified in this
Section or, (ii) if given by mail, 36 hours after such
communication is deposited in the mails with first class
postage prepaid, addressed as aforesaid or, (iii) if
given by any other means, when delivered at the address
specified in this Section 10.1. Notices shall be
addressed as follows:
if to the Fund:
BlackRock Fund Investors I
345 Park Avenue
New York, New York 10154
Attn: Ralph L. Schlosstein, President
Facsimile No.: (212) 754-8760
All notices to Securityholders shall be at the
address set forth in the Register.
Failure to deliver a notice or communication to
a Securityholder or any defect in it shall not affect its
sufficiency with respect to other Securityholders. If a
notice or communication is delivered in the manner
provided above, it is duly given, whether or not the
addressee receives it.
10.2 Communications by Holders With Other
Holders. Securityholders may communicate with other
Securityholders with respect to their rights under the
Securities. Each Securityholder shall have the right to
examine the Register and receive a list of
Securityholders and their addresses upon request.
10.3 Successors. All agreements of the Fund
in the Securities shall bind its respective successors.
10.4 New York Law. THE SECURITIES SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF
THE STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICT OF
LAWS PRINCIPLES THEREOF.
10.5 Separability. In case any provision in
the Securities shall be invalid, illegal or
unenforceable, the validity, legality and enforceability
of the remaining provisions thereof shall not in any way
be affected or impaired thereby.
10.6 Denominations; Transfer; Exchange. The
Securities are in registered form without coupons, and
are issuable in denominations of $100.00 and in integral
multiples of $100.00.
10.7 No Recourse Against Others. No past,
present or future shareholder, trustee, officer, agent,
employee or organizor of the Fund, as such, or of any
successor entity shall have any liability for any
obligations of the Fund under the Securities or for any
claim based on, in respect of, or by reason of, such
obligations or their creation. By accepting a Security,
each Holder waives and releases all such liability.
10.8 Loss, Theft, Destruction or Mutilation of
the Security. Upon receipt by the Fund of evidence
reasonably satisfactory to the Fund of the loss, theft,
destruction or mutilation of this Security, and of
indemnity or security reasonably satisfactory to the
Fund, and upon reimbursement to the Fund of all
reasonable expenses incidental thereto, and upon
surrender and cancellation of this Security, if
mutilated, the Fund will make and deliver a new Security
of like tenor, in lieu of this Security. Any Security
made and delivered in accordance with the provisions of
this Section 10.8 shall be dated as of the date to which
interest has been paid on this Security, or if no
interest has therefore been paid on this Security, then
dated the date hereof.
IN WITNESS WHEREOF, the Fund has caused this
Security to be duly executed as of the date first above
written.
BLACKROCK FUND INVESTORS I
Dated: By:_____________________________
Name: Ralph L. Schlosstein
Title: President
Attest:
By:_________________________
Name: Susan L. Wagner
Title: Secretary
INVESTMENT ADVISORY AGREEMENT
INVESTMENT ADVISORY AGREEMENT (the
"Agreement"), dated December 21, 1994, between BlackRock
Fund Investors I (the "Fund"), a Delaware business trust,
and BlackRock Financial Management L.P. (the "Advisor"),
a Delaware limited partnership. Except as otherwise
expressly provided herein or unless the context otherwise
requires, capitalized terms not otherwise defined herein
shall have the meanings specified in the Fund's
Declaration of Trust, dated December 21, 1994, as amended
(the "Declaration").
In consideration of the mutual promises and
agreements herein contained and other good and valuable
consideration, the receipt of which is hereby
acknowledged, it is agreed by and between the parties
hereto as follows:
1. In General
The Advisor agrees, all as more fully set forth
herein, to act as investment advisor to the Fund with
respect to the investment of the Fund's assets and to
supervise and arrange the purchase of securities for and
the sale of securities held in the investment portfolio
of the Fund.
2. Duties and Obligations of the Advisor
(a) Subject to the succeeding provisions
of this section and subject to the direction and control
of the Trustees, the Advisor shall (i) act as investment
advisor for and supervise and manage the investment and
reinvestment of the Fund's assets and in connection
therewith have complete discretion, subject to the Fund's
investment restrictions and limitations set forth in the
Declaration, in purchasing and selling securities and
other assets for the Fund and in voting, exercising
consents and exercising all other rights appertaining to
such securities and other assets on behalf of the Fund;
(ii) supervise continuously the investment program of the
Fund and the composition of its investment portfolio;
(iii) arrange, subject to the provisions of paragraph 3
hereof, for the purchase and sale of securities and other
assets held in the investment portfolio of the Fund; (iv)
arrange for the administration of all other affairs of
the Fund and, in this regard, provide supervision of
third parties engaged in such administration; (v)
maintain all of the Fund's books and records other than
those maintained by a third party administrator, transfer
agent, custodian or accountant; and (vi) provide the Fund
with adequate office space and all necessary office
equipment and services.
(b) The Advisor will use its best efforts
to (i) cause BlackRock Asset Investors (the "Trust") and
each of the Fund, BlackRock Fund Investors II and
BlackRock Fund Investors III (collectively, the "Funds")
at all times to be investment companies within the
meaning of the Investment Company Act of 1940, the Rules
and Regulations thereunder and any order applicable to
the Trust or the Funds granted thereunder, in each case
as amended from time to time (the "1940 Act"), to be duly
registered as such under the 1940 Act and to maintain
compliance with the 1940 Act, and (ii) cause the Trust
and each of the Funds at all times to qualify and remain
qualified for and to receive the special tax treatment
afforded a regulated investment company ("RIC") under
Subchapter M of the Internal Revenue Code of 1986, as
amended (the "Code"). Without limiting the generality of
the foregoing, the Advisor will use its best efforts to
(i) cause the Funds' outstanding securities (other than
short-term paper) to be beneficially owned at all times
by more than 100 persons as determined in accordance with
the provisions of Section 3(c)(1) of the 1940 Act and
(ii) cause the Fund not to be a company described in
Sections 3(c)(5) and/or 3(c)(6) of the 1940 Act. The
Advisor will provide the Trustees a compliance report at
each quarterly meeting reviewing each factor related to
the Fund's RIC qualification.
(c) The Advisor will use its best efforts
to cause the Fund not to (i) invest in securities that
would be deemed to be residual interests of real estate
mortgage investment conduits, as such terms are defined
in Sections 860D and 860G of the Code, or (ii) otherwise
take or fail to take any action if such action or failure
would cause any Shareholder to incur "unrelated business
taxable income" as defined in Section 512 of the Code.
(d) The Advisor will use its best efforts
to cause the Trust's Mortgage Affiliates, including
BlackRock Capital Finance L.P. ("BCF"), to at all times
not be investment companies within the meaning of the
1940 Act.
(e) Subject to Section 2(i) hereof, in
the performance of its duties under this Agreement, the
Advisor shall at all times conform to, and act in
accordance with, any requirements imposed by (i) the
provisions of the 1940 Act and of the Investment Advisers
Act of 1940 (the "Advisers Act"), including any rules or
regulations in force thereunder; (ii) any other
applicable provision of law; (iii) the provisions of the
Declaration and By-Laws of the Fund, as such documents
are amended from time to time; (iv) the investment
objective, policies and restrictions of the Fund as set
forth in the Fund's registration statement on Form N-2,
as amended from time to time, the Confidential Private
Placement Memorandum dated December 21, 1994, and any
supplements and amendments thereto (the "Memorandum"),
and any resolutions adopted by requisite Trustee and/or
shareholder approval; and (v) any other policies and
determinations of the Trustees of the Fund. In addition,
the Advisor shall use its best efforts to cause the Fund
not to engage in any transaction involving any person
known to the Advisor to be subject to Sections 17(a),
17(d) or 17(e) of the 1940 Act and the rules thereunder
with respect to the Trust or any of the Funds such that
any such person would violate any such provision of the
1940 Act or the rules thereunder.
(f) The Advisor will bear all costs and
expenses of its partners, directors, officers and
employees, any overhead incurred in connection with its
duties hereunder, the costs of any compensation of any
officers or Trustees of the Fund who are partners,
directors, officers or employees of the Advisor and all
other costs and expenses of the Fund not expressly stated
in the Section below to be borne by the Fund.
(g) The Fund will bear (i) the fees and
expenses of custodians, pricing services, accounting
systems, accounting agents and auditors, external
administrators and transfer and dividend disbursement
agents, counsel, Trustees (but only out-of-pocket
expenses of the Trustees who are partners, directors,
officers or employees of the Advisor), mortgage loan
servicers and mortgage pool trustees, insurance, taxes,
any required filings and registrations, proxy expenses,
communications to shareholders, Securities and Exchange
Commission ("SEC") examinations, capital drawdowns, and
registered agents; (ii) litigation expenses (provided
that in the case of litigation expenses of indemnified
parties, such expenses will be borne by the Fund only to
the extent provided for under the terms of written
indemnifications provided to such parties by the Fund);
and (iii) such other expenses as are approved from time
to time by a majority of the Trustees and a majority of
the Investor Trustees.
(h) The Advisor will be responsible for
paying any organizational and offering expenses of the
Funds, the Trust and BCF in excess of an aggregate of
$750,000.
(i) The Advisor shall give the Fund the
benefit of its best judgment and effort in rendering
services hereunder, but the Advisor shall not be liable
for any act or omission or for any loss sustained by the
Fund in connection with the matters to which this
Agreement relates, except a loss resulting from willful
misfeasance, bad faith or negligence in the performance
of its duties, or by reason of its reckless disregard of
its obligations and duties under this Agreement.
(j) The Advisor shall promptly notify
each of the Trustees in writing if (i) either Mr. Wesley
Edens (or his successor) or a majority of the five person
management team (the "Management Team") consisting of Mr.
Edens and four senior professionals of the Advisor who
report directly to Mr. Edens cease to devote
substantially all of his or its time to the affairs of
the Trust and its downstream Affiliates and the date as
of which such services ceased or will cease (the "BFM
Trigger Date"); (ii) Mr. John Grayken ceases to serve as
Chairman of Brazos Advisors LLC, or ceases to be
primarily responsible for the day-to-day operations of
the counterparty to the coinvestment agreement among the
Trust, BCF and the strategic coinvestor in commercial
real estate debt ("Keystone") (for so long as Keystone is
the Trust's and BCF's strategic coinvestor in commercial
real estate debt activities) and the date as of which
such services ceased or will cease (the "Keystone Trigger
Date"); or (iii) the Advisor reasonably believes that
there is a substantial likelihood that the Trust or any
of the Funds has lost or will lose its tax status as a
RIC (a "RIC Trigger")(each such notification hereinafter
referred to as a "Trigger Notification").
As of the BFM Trigger Date, the Keystone
Trigger Date or the RIC Trigger, as the case may be, the
Trust, the Funds and BCF shall be prohibited from
entering into any new investment commitments and from
making additional drawdowns of capital other than to fund
existing investment commitments and liabilities of the
Trust, the Funds or BCF until such time as a majority of
the Trustees of the Trust and all of the Trust's Investor
Trustees consent to continue all of the Trust's capital
commitments and the operations of the Trust.
If such consent to continue all of the Trust's
capital commitments and the operations of the Trust is
not given within 60 days following the date of a Trigger
Notification, the Trustees of the Trust shall promptly
call a meeting of the Trust's shareholders to be held as
soon as practicable, provided that the date of such
meeting shall not be sooner than 45 days after the
expiration of such 60 day period and, at such meeting,
holders of a majority of the Trust's shares may require
cancellation of all unfunded capital commitments to the
Trust and, if they so elect, immediate liquidation and
winding up of the affairs of the Trust and each of the
Funds. In addition, unless all unfunded capital
commitments to the Trust have been canceled pursuant to
the aforementioned vote of shareholders, the Advisor
shall cause the Trust to promptly notify each shareholder
of each of the Funds in writing that each shareholder has
the right, for five Business Days following the date on
which such notification is effective (the "first option
period"), to cancel its respective unfunded capital
commitment to such shareholder's Fund upon written notice
to such shareholder's Fund. Upon expiration of the first
option period, the Advisor shall cause the Trust to
promptly notify each shareholder of each of the Funds
that has not canceled its unfunded capital commitment to
such shareholder's Fund of the aggregate amount of
unfunded capital commitments to the Trust that were
canceled during the first option period, the identity of
each Fund's shareholders that effected such
cancellations, the aggregate amount of remaining unfunded
capital commitments to the Trust, and the identity of
each Fund's shareholders that have a remaining unfunded
capital commitment as of the end of the first option
period; and each such shareholder shall have the right,
for 5 Business Days following the date on which such
notification is effective, to cancel its respective
unfunded capital commitment by written notice to such
shareholder's Fund. Immediately upon receipt of written
notification from a shareholder of the cancellation of
such shareholder's unfunded capital commitment pursuant
to the provisions hereof, the Advisor will cause each
Fund to exercise its right to cancel a corresponding
portion of such Fund's unfunded capital commitment to the
Trust by written notice to the Trust.
The Trust and each of the Funds will also
terminate and promptly wind up their affairs if it is so
determined by a vote of the holders of 75% of the shares
of the Trust.
(k) Nothing in this Agreement shall
prevent the Advisor or any partner, director, officer,
employee or other affiliate thereof from acting as
investment advisor for any other person, firm or
corporation, or from engaging in any other lawful
activity, and shall not in any way limit or restrict the
Advisor or any of its partners, directors, officers,
employees or agents from buying, selling or trading any
securities for its or their own accounts or for the
accounts of others for whom it or they may be acting,
provided, however that the Advisor will undertake no
activities which, in its judgment, will adversely affect
the performance of its obligations under this Agreement.
Notwithstanding the foregoing, neither the Advisor nor
any affiliate thereof will organize, market or manage
another investment vehicle with a substantially similar
investment program to that of the Trust until at least
75% of the aggregate unexpired capital commitments to the
Trust have been invested and only on the condition that
each of the shareholders of the Funds has an opportunity
either to terminate or transfer to the new investment
vehicle its remaining unfunded capital commitments to
such Fund.
(l) From time to time, one or more of the
investment companies or accounts which the Advisor
manages may own the same investments as the Trust.
Investment decisions for the Trust are made independently
from those of such other investment companies or
accounts; however, from time to time, the same investment
decision may be made for more than one company or
account; provided, however that (i)subject to the
coinvestment requirements applicable to the Trust's
strategic coinvestor in commercial real estate debt(as
described in the Declaration), the Trust and its
strategic coinvestor will have a prior right to acquire
all or such portion, if any, of the subordinated CMBS
(other than Residuals) issued from time to time by the
Trust's Mortgage Affiliates as the Trust and such
strategic coinvestor respectively determine, (ii) the
portion of such subordinated CMBS, if any, that the Trust
and its strategic coinvestor do not acquire will be
offered to each shareholder (or the investment entity
specified by such shareholder) that has designated an
Investor Trustee, provided that such shareholder (or such
investment entity) has obtained any necessary exemption
from the SEC with respect to relevant sections of the
1940 Act, (iii) each subordinated CMBS acquired by any
such shareholder in accordance with clause (ii) will be
acquired concurrently with and on terms no more favorable
than those applicable to the Trust's acquisition of such
subordinated CMBS, and (iv) neither the Trust nor its
Mortgage Affiliates will offer any of the subordinated
CMBS issued by the Trust's Mortgage Affiliates to any
investment entity or account managed by the Advisor other
than as described in clause (ii). Subject to the
foregoing, when two or more investment companies or
accounts managed by the Advisor seek to purchase or sell
the same securities, the securities actually purchased or
sold will be allocated among the companies and accounts
on a good faith equitable basis by the Advisor in its
discretion in accordance with the accounts' various
investment objectives. In some cases, this system may
adversely affect the price or size of the position
obtainable for the Trust. In other cases, however, the
ability of the Trust to participate in volume
transactions may produce better execution for the Trust.
(m) The Advisor will use its best efforts
to cause all debt incurred by BCF and any of the other
Mortgage Affiliates to be non-recourse to the Fund and
its shareholders.
(n) The Advisor will use its best efforts
to cause all representations, warranties and other
undertakings made by BCF and any of the other Mortgage
Affiliates regarding the validity and enforceability of
the mortgage loans constituting the pool backing each
issue of mortgage-backed securities, and the nature of
the collateral securing such mortgage loans, to be non-
recourse to the Fund and its shareholders.
3. Portfolio Transactions and Brokerage
The Advisor shall, for the purchase and sale of
the Fund's portfolio securities, employ such securities
dealers as will, in the reasonable judgment of the
Advisor, result in the Fund's obtaining the best net
results taking into account such factors as price,
including dealer spread, the size, type and difficulty of
the transaction involved, the firm's general execution
and operational facilities and the firm's risk in
positioning the securities involved. Consistent with
this requirement, the Advisor is authorized to direct the
execution of the Fund's portfolio transactions to dealers
and brokers furnishing statistical information or
research reasonably deemed by the Advisor to be useful or
valuable to the performance of its investment advisory
functions for the Fund.
4. Compensation of the Advisor
During the term hereof, the Fund agrees to pay
the Advisor and the Advisor agrees to accept as full
compensation for all services rendered hereunder a
Management Fee. During the period in which funds may be
drawn down for investments (the "Commitment Period"),
which is scheduled to expire on the third anniversary of
the initial closing, subject to a potential one year
extension and to potential early termination as described
in the Declaration, the Management Fee will equal 0.50%
of the Fund's aggregate Capital Commitments, which are
the aggregate of all Capital Commitments under
subscription agreements accepted by the Fund, less, in
the case of a Capital Commitment that has been
terminated, that portion of such Capital Commitment that
has not been drawn down and invested. Following the
Commitment Period, the Management Fee will equal 0.50%
per year of the weighted average capital (computed
according to the principles for determining Periodic
Weighted Average Capital (as defined in the Trust's
Investment Advisory Agreement)), for the period
commencing on the day immediately succeeding the last day
as of which the Management Fee was paid and ending on the
current Management Fee Payment Date, invested in the Fund
by its Shareholders. The Management Fee shall be
calculated and paid semiannually in arrears, commencing
on April 30, 1995, and shall be prorated for any partial
period.
5. Indemnity.
(a) The Fund hereby agrees to indemnify
the Advisor and each of the Advisor's partners,
directors, officers, employees and controlling persons
and the partners, directors, officers and employees
thereof (each such person being an "indemnitee") against
any liabilities and expenses, including amounts paid in
satisfaction of judgments, in compromise or as fines and
penalties, and reasonable counsel fees reasonably
incurred by such indemnitee in connection with the
defense or disposition of any action, suit or other
proceeding, whether civil or criminal, before any court
or administrative or investigative body in which he may
be or may have been involved as a party or otherwise or
with which he may be or may have been threatened, while
acting in any capacity set forth above in this Section 5
with respect to the services provided hereunder or
thereafter by reason of his having acted in any such
capacity, except with respect to any matter as to which
he shall not have acted in good faith in the reasonable
belief that his action was in the best interest of the
Fund or, in the case of any criminal proceeding, as to
which he shall have had reasonable cause to believe that
the conduct was unlawful, provided, however, that no
indemnitee shall be indemnified hereunder against any
liability to any person or any expense of such indemnitee
arising by reason of (i) willful misfeasance, (ii) bad
faith, (iii) negligence or (iv) reckless disregard of the
duties involved in the conduct of his position (the
conduct referred to in such clauses (i) through (iv)
being sometimes referred to herein as "disabling
conduct"). Notwithstanding the foregoing, with respect
to any action, suit or other proceeding voluntarily
prosecuted by any indemnitee as plaintiff,
indemnification shall be mandatory only if the
prosecution of such action, suit or other proceeding by
such indemnitee was authorized by a majority of the
Trustees and a majority of the Investor Trustees.
(b) Notwithstanding the foregoing, no
indemnification shall be made hereunder unless there has
been a determination (1) by a final decision on the
merits by a court or other body of competent jurisdiction
before whom the issue of entitlement to indemnification
hereunder was brought that such indemnitee is entitled to
indemnification hereunder or, (2) in the absence of such
a decision, by (i) a majority vote of a quorum of those
Trustees who are neither "interested persons" of the Fund
(as defined in Section 2(a)(19) of the 1940 Act) nor
parties to the proceeding ("Disinterested Non-Party
Trustees") and a majority vote of the Investor Trustees
that the indemnitee is entitled to indemnification
hereunder, or (ii) if such quorum is not obtainable or
even if obtainable, if such majorities so direct,
independent legal counsel in a written opinion conclude
that the indemnitee should be entitled to indemnification
hereunder. All determinations that advance payments in
connection with the expense of defending any proceeding
shall be authorized and made in accordance with the
immediately succeeding paragraph (c) below.
(c) The Fund shall make advance payments
in connection with the expenses of defending any action
with respect to which indemnification might be sought
hereunder if the Fund receives a written affirmation by
the indemnitee of the indemnitee's good faith belief that
the standards of conduct necessary for indemnification
have been met and a written undertaking to reimburse the
Fund unless it is subsequently determined that he is
entitled to such indemnification and if a majority of the
Trustees and a Majority of the Investor Trustees
determine that the applicable standards of conduct
necessary for indemnification appear to have been met.
In addition, at least one of the following conditions
must be met: (1) the indemnitee shall provide a security
for his undertaking, (2) the Fund shall be insured
against losses arising by reason of any lawful advances,
or (3) a majority of a quorum of the Disinterested Non-
Party Trustees and a Majority of the Investor Trustees,
or if a majority vote of such quorum and a Majority of
the Investor Trustees so direct, independent legal
counsel in a written opinion, shall conclude, based on a
review of readily available facts (as opposed to a full
trial-type inquiry), that there is substantial reason to
believe that the indemnitee ultimately will be found
entitled to indemnification.
(d) The rights accruing to any indemnitee
under these provisions shall not exclude any other right
to which he may be lawfully entitled.
(e) For purposes of this Agreement, a
"majority" of the Investor Trustees shall mean more than
50% of the total number of Investor Trustees who are
present and voting upon the matter in question, provided
the matter is considered at a meeting duly called and
required notice has been given.
6. Duration, Termination and Amendment
(a) This Agreement shall become effective
on the date it is approved by the shareholders of the
Fund and shall continue in effect for a period of two
years and thereafter from year to year, but only so long
as such continuation is specifically approved at least
annually at a meeting of the Trustees in accordance with
the requirements of the 1940 Act.
(b) This Agreement (i) may be terminated
by the Advisor at any time without penalty upon giving
the Fund ninety days prior written notice (which notice
may be waived by a majority of the Trustees including a
majority of the Investor Trustees) if the Fund is in
breach of this Agreement in any material respect and (ii)
may be terminated on behalf of the Fund at any time
without penalty upon giving the Advisor 60 days prior
written notice (which notice may be waived by the
Advisor) by the vote of a majority of the Trustees or by
the vote of the holders of a "majority" (as defined in
the 1940 Act) of the voting securities of the Fund at the
time outstanding and entitled to vote. This Agreement
shall terminate automatically in the event of its
assignment (as "assignment" is defined in the 1940 Act).
Termination shall not affect any rights either party may
have against the other hereunder as of the date of such
termination.
(c) Any amendment to this Agreement
(including any increase in the compensation payable to
the Advisor hereunder) must be approved in accordance
with the requirements of the 1940 Act and by a majority
of the Investor Trustees.
(d) The Advisor is a partnership and will
notify the Fund promptly after any change in the
membership of such partnership.
7. Notices
Any notice under this Agreement shall be in
writing and shall be delivered to the other party by hand
or registered or certified mail, return receipt
requested, at such address as the other party may
designate from time to time for the receipt of such
notice and shall be deemed to be received on the earlier
of the date actually received or on the third day after
the postmark if such notice is mailed first class postage
prepaid.
8. Governing Law
This Agreement shall be construed in accordance
with the laws of the State of New York for contracts to
be performed entirely therein without reference to choice
of law principles thereof and in accordance with the
applicable provisions of the 1940 Act, the Advisers Act
and other applicable federal laws.
9. Shareholder Liability
No Shareholder of the Fund shall be subject in
such capacity to any personal liability whatsoever to any
Person in connection with Fund Property or the acts,
obligations or affairs of the Fund. No Trustee or
officer of the Fund shall be subject in such capacity to
any personal liability whatsoever to any Person, other
than the Fund or its Shareholders, in connection with
Fund Property or the affairs of the Fund, save only
liability to the Fund or its Shareholders arising from
bad faith, willful misfeasance, gross negligence
(negligence in the case of those Trustees and officers
who are partners, directors, officers or employees of the
Advisor) or reckless disregard for his duty to such
Person; and, subject to the foregoing exception, all such
Persons shall look solely to the Fund Property for
satisfaction of claims of any nature arising in
connection with the affairs of the Fund. If any
Shareholder, Trustee or officer, as such, of the Fund, is
made a party to any suit or proceeding to enforce any
such liability, subject to the foregoing exception, he
shall not, on account thereof, be held to any personal
liability. The Fund shall indemnify and hold each
Shareholder harmless from and against all claims and
liabilities to which such Shareholder may become subject
by reason of his being or having been a Shareholder, and
shall reimburse such Shareholder for all legal and other
expenses reasonably incurred by him in connection with
any such claim or liability.
IN WITNESS WHEREOF, the parties hereto have caused
the foregoing instrument to be executed by their duly
authorized officers as of the day and the year first
above written.
BLACKROCK FUND INVESTORS I
By:
Name: Wesley R. Edens
Title: Chief Operating Officer
BLACKROCK FINANCIAL MANAGEMENT L.P.
By:
Name: Ralph L. Schlosstein
Title: President
PLACEMENT AGENT AGREEMENT
PLACEMENT AGENT AGREEMENT dated as of December
21, 1994 among BlackRock Fund Investors I, a Delaware
business trust (the "Fund"), BFM Advisory L.P., a
Delaware limited partnership (the "Placement Agent") and
BlackRock Financial Management L.P., a Delaware limited
partnership (the "Investment Advisor").
W I T N E S S E T H:
WHEREAS, the Fund has requested the Placement
Agent to act as the exclusive placement agent of the Fund
for the private placement to institutional investors of
up to 200,000,000 shares of beneficial interest of the
Fund (the "Shares").
WHEREAS, the Placement Agent has indicated its
willingness to act as the exclusive placement agent of
the Fund in the private placement of the Shares.
NOW, THEREFORE, in consideration of the
premises, the parties agree as follows:
1. Certain Definitions. For all purposes of this
Agreement, except as otherwise expressly provided herein
or unless the context otherwise requires, capitalized
terms not otherwise defined herein shall have the
meanings assigned to such terms in the Fund's Declaration
of Trust, dated December 21, 1994, as amended (the
"Declaration"). All other capitalized terms used herein
shall have the meanings specified herein.
2. Appointment as the Placement Agent. (a) The
Fund appoints the Placement Agent its exclusive placement
agent for soliciting subscription agreements (the
"Subscription Agreements") for the purchases of the
Shares and acknowledges that the Placement Agent shall
have the exclusive right to assist the Fund in the
placement of the Shares during the term of this
Agreement.
(b) In soliciting Subscription Agreements for
purchases of the Shares in accordance with clause (a) of
this Section 2, the Placement Agent shall act as agent
for the Fund. The Placement Agent shall make reasonable
efforts to assist the Fund in obtaining performance by
each purchaser whose offer to purchase Shares has been
solicited by the Placement Agent. In the absence of
fraud, gross negligence or willful misconduct by the
Placement Agent, the Placement Agent shall have no
liability to the Fund in the event any such purchase is
not consummated for any reason. The Placement Agent
shall not have any obligation to purchase, as principal,
Shares under any circumstances. However, the Placement
Agent may purchase Shares as principal.
(c) Upon receipt of written or oral
instructions from the Fund, the Placement Agent will use
its best efforts to solicit purchases of the Shares as
the Fund and the Placement Agent shall agree upon from
time to time during the term of this Agreement. The
Placement Agent and the Fund shall each have the right,
in their discretion reasonably exercised, to reject any
proposed purchase of Shares, in whole or in part.
(d) The Fund may instruct the Placement Agent
to suspend solicitation of purchases of Shares at any
time. Upon receipt of such instructions, the Placement
Agent will forthwith suspend solicitations until such
time as the Fund has advised it that solicitation of
purchases may be resumed.
(e) The Placement Agent shall be entitled to
no compensation from, or reimbursement of expenses by,
the Fund in connection with the performance by the
Placement Agent of its duties hereunder.
3. Offers and Sales of the Shares. The offer and
sale of the Shares are to be effected pursuant to the
exemption from the registration requirements of the
Securities Act of 1933, as amended (the "Act"), provided
by Section 4(2) thereof, which exempts transactions by an
issuer not involving any public offering. Offers and
sales of the Shares will be made in accordance with the
general provisions of Regulation D under the Act. The
Placement Agent, the Investment Advisor and the Fund
hereby establish the following procedures in connection
with the offer and sale or resale of the Shares:
(a) Offers and sales of the Shares will be
made only to purchasers which qualify as accredited
investors (as defined in Rule 501 of Regulation D under
the Act).
(b) The Shares will be offered only by
approaching prospective purchasers on an individual
basis. The Shares will not be offered or sold by any
means of general solicitation or general advertising.
(c) Each Share shall be subject to the
restrictions on transfer thereof described in the
Declaration and shall be subject to restrictive legends
as described therein. The purpose of this requirement is
to ensure that Shares are resold or otherwise transferred
only to qualified purchasers and not in a manner that
might call into question the non-public offering
character of the offer and sale of the Shares.
(d) The Fund's Private Placement Memorandum,
dated December , 1994, as amended or supplemented from
time to time (the "Memorandum") will be made available to
each purchaser or prospective purchaser of Shares from
the Fund, together with any supplements to such
Memorandum which may have been prepared which describes,
among other things the Fund and the Shares, material
agreements of the Fund and risks and special
considerations. The Memorandum will contain a statement
expressly offering an opportunity for each prospective
purchaser to ask questions of, and receive answers from,
the Fund concerning the offering of the Shares and to
obtain additional relevant information which the Fund
possesses or can acquire without unreasonable effort or
expense.
(e) The Fund and the Investment Advisor agree
to cooperate with the Placement Agent in the preparation
of the Memorandum and in amending it as from time to time
may be necessary in connection with the initial issuance
and sale of the Shares.
The Placement Agent shall not be liable or
responsible to the Fund for any losses, damages or
liabilities suffered or incurred by the Fund arising from
or relating to any resale or transfer of any Shares,
except to the extent the Placement Agent has acted as
agent or principal in connection therewith in violation
of the Fund's transfer restrictions.
4. Representations and Warranties. The Investment
Advisor represents and warrants to the Placement Agent
that:
(a) The Memorandum does not and will not
include any untrue statement of a material fact or omit
to state a material fact necessary in order to make the
statements made, in light of the circumstances under
which they are made, not misleading.
(b) The Fund (i) has been duly organized and
is validly existing as a business trust in good standing
under the laws of Delaware and (ii) has the requisite
corporate power and authority to sell, issue and deliver
the Shares and to execute and deliver the various
agreements referenced in the Memorandum and perform its
obligations under such agreements. When the Shares are
issued, delivered and paid for as described in the
Memorandum, the same will be duly authorized, validly
issued, fully paid and nonassessable shares of beneficial
interest.
(c) The Fund is not in violation of its
Declaration or by-laws or in default in the performance
or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage,
loan agreement or lease to which the Fund is a party or
by which it may be bound, and the execution and delivery
of this Agreement and those agreements specifically
referred to in the Memorandum and the consummation of the
transactions herein and therein contemplated will not
conflict with, or constitute a breach of or default
under, the Declaration or by-laws of the Fund or any
material contract, indenture, mortgage, loan agreement or
lease, to which the Fund is a party or by which it may be
bound, or any law, administrative regulation or court
decree.
(d) This Agreement has been duly authorized,
executed and delivered by the Fund and constitutes the
legal, valid and binding obligation of the Fund
enforceable in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy,
insolvency or other similar laws relating to or affecting
generally the enforcement of creditors' rights or by
general equitable principles.
(e) Assuming compliance with Section 5(b)
hereof, no consent, approval, authorization, order,
registration or qualification of or with any court or any
regulatory authority or other governmental agency or body
(including the SEC) is required for the issuance, offer
or sale of the Shares in accordance with the terms of
this Agreement or for the consummation of the transaction
contemplated by this Agreement.
(f) There are no legal or governmental
proceedings pending to which the Fund is a party or of
which any property of the Fund is the subject, other than
legal or governmental proceedings which in each case will
not have a material adverse effect on the business,
financial condition, shareholders' equity or results of
operations of the Fund; and to the best of its knowledge,
no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
(g) The offer, issuance, sale and delivery of
the Shares in accordance with the terms of this Agreement
will constitute exempted transactions under the Act
pursuant to Section 4(2) thereof, and registration of the
Shares under the Act will not be required in connection
with any such offer, issuance, sale or delivery of the
Shares.
(h) The offer, issuance, sale and delivery of
the Shares in accordance with the terms of this Agreement
will be exempt from registration under the securities
laws of any state or jurisdiction of the United States on
the date such offer, issuance, sale or delivery shall
occur or will be so registered.
5. Covenants. (a) The Fund and the Investment
Advisor agree that no future offer and sale of Shares
will be made if, as a result of the doctrine of
"integration" referred to in Rule 502 of Regulation D
under the Act and various releases and "no action"
letters issued or made available by the SEC, such offer
and sale would call into question the entitlement of the
Shares to the exemption from the registration
requirements of the Act provided by Section 4(2) thereof.
(b) The Placement Agent will at all times
during the term of this Agreement maintain its
registration as a broker-dealer under the Securities
Exchange Act of 1934.
(c) The Placement Agent will endeavor, in
cooperation with the Fund, to qualify the Shares for
offer and sale under the applicable securities laws of
such states and other jurisdictions of the United States
and other countries as the Fund and the Placement Agent
shall determine, and will maintain such qualifications in
effect for as long as may be required for the
distribution of the Shares. The Fund and the Placement
Agent will file such statements and reports as may be
required by the laws of each jurisdiction in which the
Shares have been qualified as above provided.
(d) The Fund will register with the SEC
pursuant to Section 8(a) of the Investment Company Act of
1940 (the "1940 Act") as a closed-end, non-diversified
management investment company prior to or as promptly as
possible following advice from the Investment Advisor
that the Fund has more than 100 beneficial owners of its
securities (other than short-term paper) for purposes of
Section 3(c)(1) of the 1940 Act.
6. Notices. Unless otherwise indicated, all
notices required under the terms and provisions hereof
shall be in writing, either delivered by hand, by mail
(postage prepaid), or by telex, telecopier or telegram,
and any such notice shall be effective when received at
the address specified below.
If to the Fund:
BlackRock Fund Investors I
345 Park Avenue
New York, New York 10154
Attention: Ralph L. Schlosstein, President
Telephone No.: (212) 754-5560
Facsimile No.: (212) 754-8760
If to the Placement Agent:
BFM Advisory L.P.
345 Park Avenue
New York, New York 10154
Attention: Ralph L. Schlosstein, President
Telephone No.: (212) 754-5560
Facsimile No.: (212) 754-8760
If to the Investment Advisor:
BlackRock Financial Management L.P.
345 Park Avenue
New York, New York 10154
Attention: Ralph L. Schlosstein, President
Telephone No.: (212) 754-5560
Facsimile No.: (212) 754-8760
or at such other address as such party may designate from
time to time by notice duly given in accordance with the
terms of this Section 8 to the other party hereto.
7. GOVERNING LAW. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK WITHOUT REGARD TO OTHERWISE
APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS.
8. Amendment and Termination; Successors;
Counterparts. (a) This Agreement shall become effective
on the date first set forth above and shall remain in
effect until the expiration of the Commitment Period (as
defined in the Declaration).
(b) This Agreement may be terminated as to all
parties (a) by the Placement Agent at any time without
penalty by giving fifteen (15) days' written notice to
the Fund which notice may be waived by the Fund; or (b)
by the Fund at any time without penalty upon fifteen (15)
days' written notice to the Placement Agent (which notice
may be waived by the Placement Agent).
(c) This Agreement shall be binding upon and
inure exclusively to the benefit of the parties hereto
and their respective permitted successors and assigns and
the indemnified parties referred to in Section 6 hereof.
This Agreement may not be assigned by any party hereto
absent the prior written consent of the other party.
9. Captions. The captions in this Agreement are
for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
10. Severability of Provisions. Any provision of
this Agreement which is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining
provisions hereof or affecting the validity or
enforceability of such provision in any other
jurisdiction.
IN WITNESS WHEREOF, the parties have executed
this Agreement as of the date and year first above
written.
BLACKROCK FUND INVESTORS I
By:
Name: Wesley R. Edens
Title: Chief Operating Officer
BFM ADVISORY L.P.
By:
Name: Ralph L. Schlosstein
Title: President
BLACKROCK FINANCIAL MANAGEMENT L.P.
By:
Name: Ralph L. Schlosstein
Title: President
EXHIBIT A
CUSTODIAN CONTRACT
Between
BLACKROCK FUND INVESTORS I
and
STATE STREET BANK AND TRUST COMPANY
TABLE OF CONTENTS
Page
1. Employment of Custodian and Property to be
Held By It.............................................1
1.1 Employment of Custodian and Property
to be held by it..................................1
1.2 Employment of Sub-Custodians......................1
1.3 Appointment of Agents.............................2
2. Duties of the Custodian with Respect to Property
of the Trust Held by the Custodian.....................2
2.1 Holding Securities................................2
2.2 Delivery of Securities............................2
2.3 Registration of Securities........................4
2.4 Bank Accounts.....................................5
2.5 Availability of Federal Funds.....................5
2.6 Collection of Income..............................5
2.7 Payment of Trust Monies...........................6
2.8 Liability for Payment in Advance of
Receipt of Securities Purchased...................7
2.9 Deposit of Trust Assets in Securities System......7
2.9A Trust Assets Held in the Custodian's Direct
Paper System......................................9
2.10 Segregated Account...............................10
2.11 Ownership Certificates for Tax Purposes..........11
2.12 Proxies..........................................11
2.13 Communications Relating to Trust
Portfolio Securities.............................11
2.14 Proper Instructions..............................11
2.15 Actions Permitted Without Express Authority......12
2.16 Evidence of Authority............................12
3. Duties of Custodian With Respect to the Books
of Account and Calculation of Net Asset Value
and Net Income........................................12
4. Records...............................................13
5. Opinion of Trust's Independent Accountant.............13
6. Reports to Trust by Independent Public Accountants....13
7. Compensation of Custodian.............................13
8. Responsibility of Custodian...........................14
9. Effective Period, Termination and Amendment...........15
10. Successor Custodian...................................16
11. Interpretive and Additional Provisions................16
12. Massachusetts Law to Apply............................17
13. Prior Contracts.......................................17
14. Shareholder Communications............................17
15. Disclaimer of Liability...............................17
CUSTODIAN CONTRACT
This Contract between BlackRock Fund Investors I, a business
trust organized and existing under the laws of Delaware, having
its principal place of business at 345 Park Avenue, New York, NY
10154 hereinafter called the "Trust", and State Street Bank and
Trust Company, a Massachusetts trust company, having its
principal place of business at 225 Franklin Street, Boston,
Massachusetts, 02110, hereinafter called the "Custodian",
WITNESSETH: That in consideration of the mutual covenants
and agreements hereinafter contained, the parties hereto agree as
follows:
1. Custodian, Sub-Custodians and Agents
1.1 Employment of Custodian and Property to be Held by It. The
Trust hereby employs the Custodian as the custodian of its
assets pursuant to the provisions of the Trust's Declaration
of Trust, dated December 21, 1994, as amended (the
"Declaration of Trust"). The Trust agrees to deliver to the
Custodian all securities and cash owned by it, and all
payments of income, payments of principal or capital
distributions received by it with respect to all securities
owned by the Trust from time to time, and the cash
consideration received by it for such new or treasury shares
of beneficial interest ("Shares") of the Trust as may be
issued or sold from time to time. The Custodian shall not
be responsible for any property of the Trust held or
received by the Trust and not delivered to the Custodian.
1.2 Employment of Sub-Custodian. Upon receipt of "Proper
Instructions" (within the meaning of Section 2.14), the
Custodian shall from time to time employ one or more sub-
custodians, and such employment, and the level of
responsibility or liability such sub-custodian has to the
Custodian, shall be approved by the Trustees and by a
majority of the Investors Trustees (as such term is defined
in the Declaration of Trust) of the Trust; provided that in
the absence of bad faith, negligence or willful misconduct
on the part of the Custodian, the Custodian shall have no
more or less responsibility or liability to the Trust on
account of any actions or omissions of any sub-custodian so
employed than any such sub-custodian has to the Custodian.
If the Custodian's actions or omissions relative to a sub-
custodian are in bad faith, with negligence or willful
misconduct, the employment of any sub-custodian shall not
relieve the Custodian of its responsibilities or liabilities
hereunder.
1.3 Appointment of Agents. The Custodian may at any time or
times in its discretion appoint (and may at any time remove)
any other bank or trust company which is itself qualified
under the Investment Company Act of 1940, as amended, to act
as a custodian, as its agent to carry out such of the
provisions of Article 2 as the Custodian may from time to
time direct; provided, however, that the appointment of any
agent shall not relieve the Custodian of its
responsibilities or liabilities hereunder.
2. Duties of the Custodian with Respect to Property of the
Trust Held By the Custodian
2.1 Holding Securities. The Custodian shall hold and physically
segregate for the account of the Trust all non-cash
property, including all securities owned by the Trust, other
than (a) securities which are maintained pursuant to Section
2.9 in a clearing agency which acts as a securities
depository or in a book-entry system authorized by the U.S.
Department of the Treasury and certain federal agencies,
collectively referred to herein as "Securities System" and
(b) commercial paper of an issuer for which State Street
Bank and Trust Company acts as issuing and paying agent
("Direct Paper") which is deposited and/or maintained in the
Direct Paper System of the Custodian pursuant to Section
2.9A.
2.2 Delivery of Securities. The Custodian shall release and
deliver securities owned by the Trust held by the Custodian
or in a Securities System account of the Custodian or in the
Custodian's Direct Paper book entry system account ("Direct
Paper System Account") only upon receipt of Proper
Instructions, which may be continuing instructions when
deemed appropriate by the parties, and only in the following
cases:
1) Upon sale of such securities for the account of
the Trust and receipt of payment therefor;
2) Upon the receipt of payment in connection with any
repurchase agreement related to such securities
entered into by the Trust;
3) In the case of a sale effected through a
Securities System, in accordance with the
provisions of Section 2.9 hereof;
4) To the depository agent in connection with tender
or other similar offers for portfolio securities
of the Trust;
5) To the issuer thereof or its agent when such
securities are called, redeemed, retired or
otherwise become payable; provided that, in any
such case, the cash or other consideration is to
be delivered to the Custodian;
6) To the issuer thereof, or its agent, for transfer
into the name of the Trust or into the name of any
nominee or nominees of the Custodian or into the
name or nominee name of any agent appointed
pursuant to Section 1.3 or into the name or
nominee name of any sub-custodian appointed
pursuant to Article 1; or for exchange for a
different number of bonds, certificates or other
evidence representing the same aggregate face
amount or number of units; provided that, in any
such case, the new securities are to be delivered
to the Custodian;
7) Upon the sale of such securities for the account
of the Trust, to the broker or its clearing agent,
against a receipt, for examination in accordance
with "street delivery" custom; provided that in
any such case, the Custodian shall have no
responsibility or liability for any loss arising
from the delivery of such securities prior to
receiving payment for such securities except as
may arise from the Custodian's own negligence,
willful misconduct, or lack of good faith;
8) For exchange or conversion pursuant to any plan of
merger, consolidation, recapitalization,
reorganization or readjustment of the securities
of the issuer of such securities, or pursuant to
provisions for conversion contained in such
securities, or pursuant to any deposit agreement;
provided that, in any such case, the new
securities and cash, if any, are to be delivered
to the Custodian;
9) In the case of warrants, rights or similar
securities, the surrender thereof in the exercise
of such warrants, rights or similar securities or
the surrender of interim receipts or temporary
securities for definitive securities; provided
that, in any such case, the new securities and
cash, if any, are to be delivered to the
Custodian;
10) For delivery in connection with any loans of
securities made by the Trust, but only against
receipt of adequate collateral as agreed upon from
time to time by the Custodian and the Trust, which
may be in the form of cash or obligations issued
by the United States government, its agencies or
instrumentalities, except that in connection with
any loans for which collateral is to be credited
to the Custodian's account in the book-entry
system authorized by the U.S. Department of the
Treasury, the Custodian will not be held liable or
responsible for the delivery of securities owned
by the Trust prior to the receipt of such
collateral;
11) For delivery as security in connection with any
borrowings by the Trust requiring a pledge of
assets by the Trust, but only against receipt of
amounts borrowed;
12) For delivery in accordance with the provisions of
any agreement among the Trust, the Custodian and a
broker-dealer registered under the Securities
Exchange Act of 1934 (the "Exchange Act") and a
member of The National Association of Securities
Dealers, Inc. ("NASD"), relating to compliance
with the rules of The Options Clearing Corporation
and of any registered national securities
exchange, or of any similar organization or
organizations, regarding escrow or other
arrangements in connection with transactions by
the Trust;
13) For delivery in accordance with the provisions of
any agreement among the Trust, the Custodian, and
a Futures Commission Merchant registered under the
Commodity Exchange Act, relating to compliance
with the rules of the Commodity Futures Trading
Commission and/or any Contract Market, or any
similar organization or organizations, regarding
account deposits in connection with transactions
by the Trust; and
14) For any other proper corporate purpose, but only
upon receipt of, in addition to Proper
Instructions, a certified copy of a resolution of
the Board of Trustees or of the Executive
Committee signed by an officer of the Trust and
certified by the Secretary or an Assistant
Secretary, specifying the securities to be
delivered, setting forth the purpose for which
such delivery is to be made, declaring such
purpose to be a proper corporate purpose, and
naming the person or persons to whom delivery of
such securities shall be made.
2.3 Registration of Securities. Securities held by the
Custodian (other than bearer securities) shall be registered
in the name of the Trust or in the name of any nominee of
the Trust or of any nominee of the Custodian which nominee
shall be assigned exclusively to the Trust, unless the Trust
has authorized in writing the appointment of a nominee to be
used in common with other registered investment companies
having the same investment advisor as the Trust, or in the
name or nominee name of any agent appointed pursuant to
Section 1.3 or in the name or nominee name of any sub-
custodian appointed pursuant to Article 1. All securities
accepted by the Custodian on behalf of the Trust under the
terms of this Contract shall be in "street name" or other
good delivery form. If, however, the Trust directs the
Custodian to maintain securities in "street name", the
Custodian shall utilize its best efforts only to timely
collect income due the Trust on such securities and to
notify the Trust on a best efforts basis only of relevant
corporate actions including, without limitation, pendency of
calls, maturities, tender or exchange offers.
2.4 Bank Accounts. The Custodian shall open and maintain a
separate bank account or accounts in the name of the Trust,
subject only to draft or order by the Custodian acting
pursuant to the terms of this Contract, and shall hold in
such account or accounts, subject to the provisions hereof,
all cash received by it from or for the account of the
Trust, other than cash maintained by the Trust in a bank
account established and used in accordance with Rule 17f-3
under the Investment Company Act of 1940. Funds held by the
Custodian for the Trust may be deposited by it to its credit
as Custodian in the Banking Department of the Custodian or
in such other banks or trust companies as it may in its
discretion deem necessary or desirable; provided, however,
that every such bank or trust company shall be qualified to
act as a custodian under the Investment Company Act of 1940
and that each such bank or trust company and the funds to be
deposited with each such bank or trust company shall be
approved by vote of a majority of the Board of Trustees of
the Trust. Such funds shall be deposited by the Custodian
in its capacity as Custodian and shall be withdrawable by
the Custodian only in that capacity.
2.5 Availability of Federal Funds. Upon mutual agreement
between the Trust and the Custodian, the Custodian shall,
upon the receipt of Proper Instructions, make federal funds
available to the Trust as of specified times agreed upon
from time to time by the Trust and the Custodian in the
amount of checks received in payment for Shares of the Trust
which are deposited into the Trust's account.
2.6 Collection of Income. Subject to the provisions of Section
2.3, the Custodian shall collect on a timely basis all
income and other payments with respect to registered
securities held hereunder to which the Trust shall be
entitled either by law or pursuant to custom in the
securities business, and shall collect on a timely basis all
income and other payments with respect to bearer securities
if, on the date of payment by the issuer, such securities
are held by the Custodian or its agent thereof and shall
credit such income, as collected, to the Trust's custodian
account. Without limiting the generality of the foregoing,
the Custodian shall detach and present for payment all
coupons and other income items requiring presentation as and
when they become due and shall collect interest when due on
securities held hereunder. The Custodian shall utilize its
best efforts only to timely collect all income due the Trust
on securities loaned pursuant to the provisions of Section
2.2 (10).
2.7 Payment of Trust Monies. Upon receipt of Proper
Instructions, which may be continuing instructions when
deemed appropriate by the parties, the Custodian shall pay
out monies of the Trust in the following cases only:
1) Upon the purchase of securities, options, futures
contracts or options on futures contracts for the
account of the Trust but only (a) against the
delivery of such securities or evidence of title
to such options, futures contracts or options on
futures contracts to the Custodian (or any bank,
banking firm or trust company doing business in
the United States or abroad which is qualified
under the Investment Company Act of 1940, as
amended, to act as a custodian and has been
designated by the Custodian as its agent for this
purpose) registered in the name of the Trust or in
the name of a nominee of the Custodian referred to
in Section 2.3 hereof or in proper form for
transfer; (b) in the case of a purchase effected
through a Securities System, in accordance with
the conditions set forth in Section 2.9 hereof;
(c) in the case of a purchase involving the Direct
Paper System, in accordance with the conditions
set forth in Section 2.9A; (d) in the case of
repurchase agreements entered into between the
Trust and the Custodian, or another bank, or a
broker-dealer which is a member of NASD, (i)
against delivery of the securities either in
certificate form or through an entry crediting the
Custodian's account at the Federal Reserve Bank
with such securities or (ii) against delivery of
the receipt evidencing purchase by the Trust of
securities owned by the Custodian along with
written evidence of the agreement by the Custodian
to repurchase such securities from the Trust or
(e) for transfer to a time deposit account of the
Trust in any bank, whether domestic or foreign,
such transfer may be effected prior to receipt of
a confirmation from a broker and/or the applicable
bank pursuant to Proper Instructions from the
Trust as defined in Section 2.14;
2) Upon making of a capital contribution to any
partnership of which the Trust is a partner but
only against written evidence of a corresponding
increase in the capital account.
3) In connection with conversion, exchange or
surrender of securities owned by the Trust as set
forth in Section 2.2 hereof;
4) For the payment of any expense or liability
incurred by the Trust, including but not limited
to the following payments for the account of the
Trust: interest, taxes, administrative (except to
the extent required to be paid by the Trust's
investments advisors) management, accounting,
transfer agent and legal fees, and operating
expenses of the Trust whether or not such expenses
are to be in whole or part capitalized or treated
as deferred expenses;
5) For the payment of any dividends or other
distributions declared pursuant to the governing
documents of the Trust;
6) For payment of the amount of dividends received in
respect of securities sold short;
7) For any other proper purpose, but only upon
receipt of, in addition to Proper Instructions, a
certified copy of a resolution of the Board of
Trustees or of the Executive Committee of the
Trust signed by an officer of the Trust and
certified by its Secretary or an Assistant
Secretary, specifying the amount of such payment,
setting forth the purpose for which such payment
is to be made, declaring such purpose to be a
proper purpose, and naming the person or persons
to whom such payment is to be made.
2.8 Liability for Payment in Advance of Receipt of Securities
Purchased. Except as specifically stated otherwise in this
Contract, in any and every case where payment for purchase
of securities for the account of the Trust is made by the
Custodian in advance of receipt of the securities purchased
in the absence of specific written instructions from the
Trust to so pay in advance, the Custodian shall be
absolutely liable to the Trust for such securities to the
same extent as if the securities had been received by the
Custodian.
2.9 Deposit of Trust Assets in Securities Systems. The
Custodian may deposit and/or maintain securities owned by
the Trust in a clearing agency registered with the
Securities and Exchange Commission under Section 17A of the
Securities Exchange Act of 1934, which acts as a securities
depository, or in the book-entry system authorized by the
U.S. Department of the Treasury and certain federal
agencies, collectively referred to herein as "Securities
System" in accordance with applicable Federal Reserve Board
and Securities and Exchange Commission rules and
regulations, if any, and subject to the following
provisions:
1) The Custodian may keep securities of the Trust in
a Securities System provided that such securities
are represented in an account ("Account") of the
Custodian in the Securities System which shall not
include any assets of the Custodian other than
assets held as a fiduciary, custodian or otherwise
for customers;
2) The records of the Custodian with respect to
securities of the Trust which are maintained in a
Securities System shall identify by book-entry
those securities belonging to the Trust;
3) The Custodian shall pay for securities purchased
for the account of the Trust upon (i) receipt of
advice from the Securities System that such
securities have been transferred to the Account,
and (ii) the making of an entry on the records of
the Custodian to reflect such payment and transfer
for the account of the Trust. The Custodian shall
transfer securities sold for the account of the
Trust upon (i) receipt of advice from the
Securities System that payment for such securities
has been transferred to the Account, and (ii) the
making of an entry on the records of the Custodian
to reflect such transfer and payment for the
account of the Trust. Copies of all advices from
the Securities System of transfers of securities
for the account of the Trust shall identify the
Trust, be maintained for the Trust by the
Custodian and be provided to the Trust at its
request. Upon request, the Custodian shall
furnish the Trust confirmation of each transfer to
or from the account of the Trust in the form of a
written advice or notice and shall furnish to the
Trust copies of daily transaction sheets
reflecting each day's transactions in the
Securities System for the account of the Trust;
4) The Custodian shall provide the Trust with any
report obtained by the Custodian on the Securities
System's accounting system, internal accounting
control and procedures for safeguarding securities
deposited in the Securities System;
5) The Custodian shall have received the initial or
annual certificate, as the case may be, required
by Article 9 hereof;
6) Anything to the contrary in this Contract
notwithstanding, the Custodian shall be liable to
the Trust for any loss or damage to the Trust
resulting from use of the Securities System by
reason of any negligence, misfeasance or
misconduct of the Custodian or any of its agents
or of any of its or their employees or from
failure of the Custodian or any such agent to
enforce effectively such rights as it may have
against the Securities System; at the election of
the Trust, it shall be entitled to be subrogated
to the rights of the Custodian with respect to any
claim against the Securities System or any other
person which the Custodian may have as a
consequence of any such loss or damage if and to
the extent that the Trust has not been made whole
for any such loss or damage.
2.9A Trust Assets Held in the Custodian's Direct Paper System.
The Custodian may deposit and/or maintain securities owned
by the Trust in the Direct Paper System of the Custodian
subject to the following provisions:
1) No transaction relating to securities in the
Direct Paper System will be effected in the
absence of Proper Instructions;
2) The Custodian may keep securities of the Trust in
the Direct Paper System only if such securities
are represented in an account ("Account") of the
Custodian in the Direct Paper System which shall
not include any assets of the Custodian other than
assets held as a fiduciary, custodian or otherwise
for customers;
3) The Custodian shall have received the initial or
annual certificate, as the case may be, required
by Article 9 hereof;
4) The records of the Custodian with respect to
securities of the Trust which are maintained
in the Direct Paper System shall identify by book-
entry those securities belonging to the Trust;
5) The Custodian shall pay for securities purchased
for the account of the Trust upon the making of an
entry on the records of the Custodian to reflect
such payment and transfer of securities to the
account of the Trust. The Custodian shall
transfer securities sold for the account of the
Trust upon the making of an entry on the records
of the Custodian to reflect such transfer and
receipt of payment for the account of the Trust;
6) The Custodian shall furnish the Trust confirmation
of each transfer to or from the account of the
Trust, in the form of a written advice or notice,
of Direct Paper on the next business day following
such transfer and shall furnish to the Trust
copies of daily transaction sheets reflecting each
day's transaction in the Securities System for the
account of the Trust;
7) The Custodian shall provide the Trust with any
report on its system of internal accounting
control as the Trust may reasonably request from
time to time.
2.10 Segregated Account. The Custodian shall upon receipt of
Proper Instructions establish and maintain a segregated
account or accounts for and on behalf of the Trust, into
which account or accounts may be transferred cash and/or
securities, including securities maintained in an account by
the Custodian pursuant to Section 2.9 hereof, (i) in
accordance with the provisions of any agreement among the
Trust, the Custodian and a broker-dealer registered under
the Exchange Act and a member of the NASD (or any futures
commission merchant registered under the Commodity Exchange
Act), relating to compliance with the rules of The Options
Clearing Corporation and of any registered national
securities exchange (or the Commodity Futures Trading
Commission or any registered contract market), or of any
similar organization or organizations, regarding escrow or
other arrangements in connection with transactions by the
Trust, (ii) for purposes of segregating cash or government
securities in connection with options purchased, sold or
written by the Trust or commodity futures contracts or
options thereon purchased or sold by the Trust, (iii) for
the purposes of compliance by the Trust with the procedures
required by Investment Company Act Release No. 10666, or any
subsequent release or releases of the Securities and
Exchange Commission relating to the maintenance of
segregated accounts by registered investment companies and
(iv) for other proper corporate purposes, but only, in the
case of clause (iv), upon receipt of, in addition to Proper
Instructions, a certified copy of a resolution of the Board
of Trustees or of the Executive Committee signed by an
officer of the Trust and certified by the Secretary or an
Assistant Secretary, setting forth the purpose or purposes
of such segregated account and declaring such purposes to be
proper corporate purposes.
2.11 Ownership Certificates for Tax Purposes. The Custodian
shall execute ownership and other certificates and
affidavits for all federal and state tax purposes in
connection with receipt of income or other payments with
respect to securities of the Trust held by it and in
connection with transfers of securities.
2.12 Proxies. The Custodian shall, with respect to the
securities held hereunder, cause to be promptly executed by
the registered holder of such securities, if the securities
are registered otherwise than in the name of the Trust or a
nominee of the Trust, all proxies, without indication of the
manner in which such proxies are to be voted, and shall
promptly deliver to the Trust such proxies, all proxy
soliciting materials and all notices relating to such
securities.
2.13 Communications Relating to Trust Portfolio Securities.
Subject to the provisions of Section 2.3, the Custodian
shall transmit promptly to the Trust all written information
(including, without limitation, pendency of calls and
maturities of securities and expirations of rights in
connection therewith and notices of exercise of call and put
options written by the Trust and the maturity of futures
contracts purchased or sold by the Trust) received by the
Custodian from issuers of the securities being held for the
Trust. With respect to tender or exchange offers, the
Custodian shall transmit promptly to the Trust all written
information received by the Custodian from issuers of the
securities whose tender or exchange is sought and from the
party (or his agents) making the tender or exchange offer.
If the Trust desires to take action with respect to any
tender offer, exchange offer or any other similar
transaction, the Trust shall notify the Custodian at least
three business days (or such shorter period as the Custodian
may agree) prior to the date on which the Custodian is to
take such action.
2.14 Proper Instructions. Proper Instructions as used throughout
this Article 2 means a writing signed or initialed by one or
more person or persons as the Board of Trustees shall have
from time to time authorized. Each such writing shall set
forth the specific transaction or type of transaction
involved, including a specific statement of the purpose for
which such action is requested. Oral instructions will be
considered Proper Instructions if the Custodian reasonably
believes them to have been given by a person authorized to
give such instructions with respect to the transaction
involved. The Trust shall cause all oral instructions to be
confirmed in writing. Upon receipt of a certificate of the
Secretary or an Assistant Secretary as to the authorization
by the Board of Trustees of the Trust accompanied by a
detailed description of procedures approved by the Board of
Trustees, Proper Instructions may include communications
effected directly between electro-mechanical or electronic
devices provided that the Board of Trustees and the
Custodian are satisfied that such procedures afford adequate
safeguards for the Trust's assets. For purposes of this
Section, Proper Instructions shall include instructions
received by the Custodian pursuant to any three-party
agreement which requires a segregated asset account in
accordance with Section 2.10.
2.15 Actions Permitted without Express Authority. The Custodian
may in its discretion, without express authority from the
Trust:
1) make payments to itself or others for minor out of
pocket expenses of handling securities or other
similar items relating to its duties under this
Contract, provided that all such payments shall be
accounted for to the Trust;
2) surrender securities in temporary form for
securities in definitive form;
3) endorse for collection, in the name of the Trust,
checks, drafts and other negotiable instruments;
and
4) in general, attend to all non-discretionary
details in connection with the sale, exchange,
substitution, purchase, transfer and other
dealings with the securities and property of the
Trust except as otherwise directed by the Board of
Trustees of the Trust.
2.16 Evidence of Authority. The Custodian shall be protected in
acting upon any instructions, notice, request, consent,
certificate or other instrument or paper reasonably believed
by it to be genuine and to have been properly executed by or
on behalf of the Trust. The Custodian may receive and
accept a certified copy of a vote of the Board of Trustees
of the Trust as conclusive evidence (a) of the authority of
any person to act in accordance with such vote or (b) of any
determination or of any action by the Board of Trustees
pursuant to the Declaration of Trust as described in such
vote, and such vote may be considered as in full force and
effect until receipt by the Custodian of written notice to
the contrary.
3. Duties of Custodian with Respect to the Books of Account
and Calculation of Net Asset Value and Net Income
The Custodian shall keep the books of account of the Trust
and compute the net asset value per share of the outstanding
shares of the Trust.
4. Records
The Custodian shall create and maintain all records relating
to its activities and obligations under this Contract in such
manner as will meet the obligations of the Trust under the
Investment Company Act of 1940, with particular attention to
Section 31 thereof and Rules 31a-1 and 31a-2 thereunder. All
such records shall be the property of the Trust and shall at all
times during the regular business hours of the Custodian be open
for inspection by duly authorized officers, employees or agents
of the Trust and employees and agents of the Securities and
Exchange Commission. The Custodian shall, at the Trust's
request, supply the Trust with a tabulation of securities owned
by the Trust and held by the Custodian and shall, when requested
to do so by the Trust and for such compensation as shall be
agreed upon between the Trust and the Custodian, include
certificate numbers in such tabulations.
5. Opinion of Trust's Independent Accountant
The Custodian shall take all reasonable action, as the Trust
may from time to time request, to obtain from year to year
favorable opinions from the Trust's independent accountants with
respect to its activities hereunder in connection with the
preparation of the Trust's Form N-2, and Form N-SAR or other
annual reports to the Securities and Exchange Commission and with
respect to any other requirements of such Commission.
6. Reports to Trust by Independent Public Accountants
The Custodian shall provide the Trust, at such times as the
Trust may reasonably require, with reports by independent public
accountants on the accounting system, internal accounting control
and procedures for safeguarding securities, futures contracts and
options on futures contracts, including securities deposited
and/or maintained in a Securities System, relating to the
services provided by the Custodian under this Contract; such
reports, shall be of sufficient scope and in sufficient detail,
as may reasonably be required by the Trust to provide reasonable
assurance that any material inadequacies would be disclosed by
such examination, and, if there are no such inadequacies, the
reports shall so state.
7. Compensation of Custodian
The Custodian shall be entitled to reasonable compensation
for its services and expenses as Custodian, as agreed upon from
time to time between the Trust and the Custodian. The Custodian
shall provide monthly to the Trust a calculation of the fees
payable to the Custodian.
8. Responsibility of Custodian
So long as and to the extent that it is in the exercise of
good faith and reasonable care, the Custodian shall not be
responsible for the title, validity or genuineness of any
property or evidence of title thereto received by it or delivered
by it pursuant to this Contract and shall be held harmless in
acting upon any notice, request, consent, certificate or other
instrument reasonably believed by it to be genuine and to be
signed by the proper party or parties, including any futures
commission merchant acting pursuant to the terms of a three-party
futures or options agreement. The Custodian shall be held to the
exercise of good faith and non-negligence in carrying out the
provisions of this Contract.
The Custodian shall be entitled to receive, and act upon,
advice of counsel (which counsel shall be selected by the
Custodian with reasonable care based on such counsel's
professional competence and reputation or shall be counsel for
the Trust) and shall be without liability for any action
reasonable taken pursuant to such advice in good faith and
without negligence.
The Custodian shall be indemnified and held harmless by the
Trust for any action taken by it in carrying out terms and
provisions of this Contract if done in good faith and without
negligence or willful misconduct on the Custodian s part;
provided that: (i) the Custodian shall not be entitled to
indemnification in those situations where the Custodian is liable
to the Trust pursuant to Section 2.9(6) hereof, (ii) the
Custodian will use all reasonable care to identify and notify the
Trust promptly concerning any situation which presents, or
appears likely to present, the probability of such a claim for
indemnification against the Trust, and (iii) in any case in which
the Trust may be asked to so indemnify and hold harmless the
Custodian, the Trust shall have been fully and promptly advised
of all pertinent facts concerning the situation in question. The
Trust, using counsel of its choice, shall have the option to
defend the Custodian against any claim which may be a subject of
this indemnification and shall be given timely notice by the
Custodian to permit it to exercise that option as early as
possible with respect to such claim. In the event the Trust so
elects to defend the Custodian, the Trust will notify the
Custodian, and thereupon the Trust shall take over complete
defense of the claim, and after it does so, the Custodian shall
incur no further legal or other expenses for which it shall be
entitled to indemnification from the Trust. The Custodian shall
in no case confess any claim or make any compromise in any case
in which the Trust will be asked to indemnify the Custodian,
except with the Trust's prior written consent.
If the Trust requires the Custodian, its affiliates,
subsidiaries or agents, to advance cash or securities for any
purpose (including but not limited to securities settlements and
settlement of foreign exchange contracts) or in the event that
the Custodian or its nominee shall incur or be assessed any
taxes, charges, expenses or assessments in connection with the
performance of this Contract, except such as may arise from its
or its nominee's own negligent action, negligent failure to act,
willful misconduct or lack of good faith, any property at any
time held for the account of the Trust shall be security therefor
and should the Trust fail to repay the Custodian promptly, the
Custodian shall be entitled to utilize available cash and to
dispose of the Trust assets to the extent necessary to obtain
reimbursement.
9. Effective Period, Termination and Amendment
This Contract shall become effective as of its execution,
shall continue in full force and effect until terminated as
hereinafter provided, may be amended at any time by mutual
agreement of the parties hereto and may be terminated by either
party by an instrument in writing delivered or mailed, postage
prepaid to the other party, such termination to take effect not
sooner than ninety (90) days after the date of such delivery or
mailing; provided, however that the Custodian shall not act under
Section 2.9 hereof in the absence of receipt of an initial
certificate of the Secretary or an Assistant Secretary that the
Board of Trustees of the Trust has approved the initial use of a
particular Securities System and the receipt of an annual
certificate of the Secretary or an Assistant Secretary that the
Board of Trustees has reviewed the use by the Trust of such
Securities System, as required in each case by Rule 17f-4 under
the Investment Company Act of 1940, as amended and that the
Custodian shall not act under Section 2.9A hereof in the absence
of receipt of an initial certificate of the Secretary or an
Assistant Secretary that the Board of Trustees has approved the
initial use of the Direct Paper System and the receipt of an
annual certificate of the Secretary or an Assistant Secretary
that the Board of Trustees has reviewed the use by the Trust of
the Direct Paper System; provided further, however, that the
Trust shall not amend or terminate this Contract in contravention
of any applicable federal or state regulations, or any provision
of the Declaration of Trust, and further provided, that the Trust
may at any time by action of its Board of Trustees (i) substitute
another bank or trust company for the Custodian by giving notice
as described above to the Custodian, or (ii) immediately
terminate this Contract in the event of the appointment of a
conservator or receiver for the Custodian or upon the happening
of a like event at the direction of an appropriate regulatory
agency or court of competent jurisdiction.
Upon termination of the Contract, the Trust shall pay to the
Custodian such compensation as may be due as of the date of such
termination and shall likewise reimburse the Custodian for its
reasonable out of pocket, costs, expenses and disbursements.
10. Successor Custodian
If a successor custodian shall be appointed by the Board of
Trustees of the Trust, the Custodian shall, upon termination,
deliver to such successor custodian at the office of the
Custodian, duly endorsed and in the form for transfer, all
securities then held by it hereunder and shall transfer to an
account of the successor custodian all of the Trust's securities
held in a Securities System or Direct Paper System.
If no such successor custodian shall be appointed, the
Custodian shall, in like manner, upon receipt of a certified copy
of a vote of the Board of Trustees of the Trust, deliver at the
office of the Custodian and transfer such securities, funds and
other properties in accordance with such vote.
In the event that no written order designating a successor
custodian or certified copy of a vote of the Board of Trustees
shall have been delivered to the Custodian on or before the date
when such termination shall become effective, then the Custodian
shall have the right to deliver to a bank or trust company, which
is a "bank" as defined in the Investment Company Act of 1940,
doing business in Boston, Massachusetts or New York, New York, of
its own selection, having an aggregate capital, surplus, and
undivided profits, as shown by its last published report, of not
less than $250,000,000, all securities, funds and other
properties held by the Custodian and all instruments held by the
Custodian relative thereto and all other property held by it
under this Contract and to transfer to an account of such
successor custodian all of the Trust's securities held in any
Securities System or Direct Paper System. Upon agreeing to be
bound by the terms of this contract such bank or trust company
shall be the successor of the Custodian under this Contract.
In the event that securities, funds and other properties
remain in the possession of the Custodian after the date of
termination hereof owing to failure of the Trust to procure the
certified copy of the vote referred to or of the Board of
Trustees to appoint a successor custodian, the Custodian shall be
entitled to fair compensation for its services during such period
as the Custodian retains possession of such securities, funds and
other properties and the provisions of this Contract relating to
the duties and obligations of the Custodian shall remain in full
force and effect.
11. Interpretive and Additional Provisions
In connection with the operation of this Contract, the
Custodian and the Trust may from time to time agree on such
provisions interpretive of or in addition to the provisions of
this Contract as may in their joint opinion be consistent with
the general tenor of this Contract. Any such interpretive or
additional provisions shall be in a writing signed by both
parties and shall be annexed hereto, provided that no such
interpretive or additional provisions shall contravene any
applicable federal or state regulations or any provision of the
Declaration of Trust of the Trust. No interpretive or additional
provisions made as provided in the preceding sentence shall be
deemed to be an amendment of this Contract.
12. Massachusetts Law to Apply
This Contract shall be construed and the provisions thereof
interpreted under and in accordance with laws of The Commonwealth
of Massachusetts.
13. Prior Contracts
This Contract supersedes and terminates, as of the date
hereof, all prior contracts between the Trust and the Custodian
relating to the custody of the Trust's assets.
14. Shareholder Communications
Securities and Exchange Commission Rule 14b-2 requires banks
which hold securities for the account of customers to respond to
requests by issuers of securities for the names, addresses and
holdings of beneficial owners of securities of that issuer held
by the bank unless the beneficial owner has expressly objected to
disclosure of this information. In order to comply with the
rule, we need you to indicate whether you authorize us to provide
your name, address, and share position to requesting companies
whose stock you own. If you tell us "no", we will not provide
this information to requesting companies. If you tell us "yes"
or do not check either "yes" or "no" below, we are required by
the rule to treat you as consenting to disclosure of this
information for all securities owned by you or any funds or
accounts established by you. For your protection, the Rule
prohibits the requesting company from using your name and address
for any purpose other than corporate communications. Please
indicate below whether you consent or object by checking one of
the alternatives below.
YES [ ] You are authorized to release our name, address,
and share positions.
NO [X] You are not authorized to release our name,
address, and share positions.
15. Disclaimer of Liability
Notwithstanding anything to the contrary contained in this
Agreement, the parties hereto acknowledge and agree that, as
provided in Section 4.4 of the Declaration of Trust, this
Agreement is executed by the Trustees and/or officers of the
Trust, not individually but as such Trustees and/or officers of
the Trust, and the obligations hereunder are not binding upon any
of the Trustees or Shareholders individually but bind only the
estate of the Trust.
IN WITNESS WHEREOF, each of the parties has caused this
instrument to be executed in its name and behalf by its duly
authorized representative and its seal to be hereunder affixed as
of the 21st day of December, 1994.
ATTEST BLACKROCK FUND INVESTORS I
By:
Name: Wesley R. Edens
Title: Chief Operating Officer
ATTEST STATE STREET BANK AND TRUST COMPANY
By:
Executive Vice President
BLACKROCK FUND INVESTORS I
ADMINISTRATION AGREEMENT
ADMINISTRATION AGREEMENT, made as of the 21st day of
December, 1994 between BlackRock Fund Investors I, a Delaware
business trust (the "Trust"), and State Street Bank and Trust
Company, a Massachusetts trust company (the "Administrator").
W I T N E S E T H :
WHEREAS, the Trust is a non-diversified, closed-end
investment company that proposes to register under the Investment
Company Act of 1940, as amended (the "Investment Company Act");
and
WHEREAS, the Trust has retained BlackRock Financial
Management L.P. ("BlackRock") as investment advisor for the
purpose of investing its assets, arranging for the provision of
administrative services and supervising the provision of such
services and desires to retain the Administrator to provide
certain administrative services, and the Administrator is willing
to furnish such administrative services on the terms and
conditions hereinafter set forth;
NOW, THEREFORE, the parties hereto agree as follows:
1. The Trust hereby appoints the Administrator to provide the
services set forth below, subject to the overall supervision of
the Board of Trustees of the Trust and BlackRock, for the period
and on the terms set forth in this Agreement. The Administrator
hereby accepts such appointment and agrees during such period to
render the services herein described and to assume the
obligations herein set forth, for the compensation herein
provided.
2. Subject to the supervision of the Board of Trustees and
officers of the Trust and BlackRock, the Administrator shall
provide the following services with respect to the Trust:
(a) Oversee the determination and reporting of the Trust's
net asset value in accordance with the Trust's policy
as adopted from time to time by the Board of Trustees;
(b) Oversee the maintenance by State Street Bank and Trust
Company of those books and records of the Trust that
State Street Bank and Trust Company is required to
maintain;
(c) Prepare the Trust's federal, state and local income tax
returns for review by the Trust's independent
accountants and filing by the treasurer;
(d) Review with BlackRock the appropriateness of and
arrange for payment of the Trust's expenses;
(e) Prepare for review and approval by BlackRock financial
information for the Trust's semi-annual and annual
reports, proxy statements and other communications with
shareholders required or otherwise to be sent to Trust
shareholders, and arrange for the printing and
dissemination of such reports and communications to
shareholders and regulatory authorities;
(f) Prepare for review by BlackRock and counsel to the
Trust the Trust's periodic financial reports required
to be filed with the Securities and Exchange Commission
("SEC") on Form N-SAR and such other reports, forms or
filings, as may be mutually agreed upon;
(g) Prepare reports relating to the business and affairs of
the Trust as may be mutually agreed upon and not
otherwise appropriately prepared by BlackRock, the
Trust's custodian, counsel or auditors;
(h) Make such reports and recommendations to the Board
concerning the performance of the Trust's independent
accountants as the Board may reasonably request or
deems appropriate;
(i) Make such reports and recommendations to the Board
concerning the performance and fees of the Trust's
custodian and transfer and dividend disbursing agent as
the Board may reasonably request or deems appropriate;
(j) Calculate for review by BlackRock and authorization by
an officer of the Trust, the fees payable to the
Administrator, BlackRock, the custodian, and the
transfer agent;
(k) Consult with the Trust's officers, independent
accountants, legal counsel, custodian and transfer and
dividend disbursing agent in establishing the
accounting policies of the Trust;
(l) Assist BlackRock in drawing capital pursuant to the
Trust's subscription agreements and in making
distributions to the Trust's shareholders;
(m) Assist BlackRock in facilitating bank or other
borrowings by the Trust;
(n) Prepare such information and reports as may be required
by any bank from which the Trust borrows funds;
(o) Provide such assistance to BlackRock, the custodian,
the transfer agent and the Trust's counsel and
accountants as generally may be required to properly
carry on the business and operations of the Trust; and
(p) Respond to or refer to BlackRock or the Trust's
transfer agent, shareholder inquiries relating to the
Trust.
All services are to be furnished through the medium of any
officers or employees of the Administrator as the Administrator
deems appropriate in order to fulfill its obligations hereunder.
Certain details of the scope of the Administrator's services
hereunder shall be documented in the Compliance Manual and Fund
Profile, which outlines the administrative requirements of the
Trust as consistent with this Agreement and the Trust's
Declaration of Trust, as amended from time to time (the
"Declaration of Trust").
The Administrator will rely on the Partnership's outside
counsel and other servicers to determine that the loans purchased
by BlackRock Capital Finance and subsequent securitizations and
other securities held by BlackRock Capital Finance comply with
the requirements of the Trust. To the extent that the
Administrator does not receive information required to verify
compliance, the Administrator will assume that the instruments
held by BlackRock Capital Finance with respect to which such
information is unavailable are "In-Compliance" unless advised
otherwise.
3. The Trust will pay the Administrator a monthly fee as
described in the Administration Fee Schedule between the
Administrator and the Trust (See Schedule A). Except as provided
in such fee schedule, the Administrator and the Trust shall bear
all its own expenses incurred in connection with this Agreement.
4. (a) The Administrator shall be responsible for the
performance of only such duties as are set forth herein and in no
event shall be responsible for any investment advice to the
Trust. The Administrator shall have no liability for any loss or
damage resulting from the performance or nonperformance of its
duties hereunder unless directly caused by or resulting from the
willful misfeasance, bad faith or gross negligence of the
Administrator, its officers or employees or from reckless
disregard by any thereof of the Administrator's duties under this
Agreement.
(b) The Administrator will not be liable for any error of
judgement or mistake of law or for any loss suffered by the Trust
or its shareholders in connection with the performance of its
duties under this Agreement, except a loss resulting from willful
misfeasance, bad faith or gross negligence on its part in the
performance of its duties or from reckless disregard by it of its
duties under this Agreement.
(c) The Trust shall indemnify and hold the Administrator
harmless from all loss, cost, damage and expense, including
expenses for counsel, reasonably incurred by it resulting from
any claim, demand, action or suit in connection with its
acceptance of this Agreement, any action or omission by it in the
performance of its duties hereunder, or as a result of acting
upon any instructions reasonably believed by it to have been
executed by a duly authorized officer of BlackRock or of the
Trust, provided that this indemnification shall not apply to
actions or omissions of the Administrator, its officers,
employees or agents in cases of loss resulting from willful
misfeasance, bad faith or gross negligence on its part in the
performance of its duties or from reckless disregard by it of its
duties under this Agreement.
(d) The Trust will be entitled to participate at its own
expense in the defense, or, if it so elects, to assume the
defense of any suit brought to enforce any liability subject to
the indemnification provided above, and, if the Trust elects to
assume the defense, such defense shall be conducted by counsel
chosen by it. In the event the Trust elects to assume the
defense of any such suit and retain such counsel, the
Administrator or any of its affiliated persons, named as
defendant or defendants in the suit, may retain additional
counsel but shall bear the fees and expenses of such counsel
unless the Trust shall have specifically authorized the retaining
of such counsel.
(e) The indemnification contained herein shall survive the
termination of this Agreement.
(f) Section 4 (c) shall not apply with respect to services
covered by the Trust's Custodian Contract, dated December 21,
1994 or the Trust's Registrar and Transfer Agency Agreement,
dated December 21, 1994, each as may be amended from time to
time.
5. This Agreement shall become effective as of the date on
which the Trust first draws down capital from those who executed
subscription agreements in favor of the Trust and shall
thereafter continue in effect unless terminated as herein
provided. This Agreement may be terminated by either party
hereto (without penalty) at any time upon not less than 90 days
prior written notice to the other party hereto.
6. The services of the Administrator to the Trust hereunder are
not exclusive and nothing in this Agreement shall limit or
restrict the right of the Administrator to engage in any other
business or to render services of any kind to any other
corporation, firm, individual or association. The Administrator
shall be deemed to be an independent contractor, unless otherwise
expressly provided or authorized by this Agreement.
7. During the term of this Agreement, the Trust agrees to
furnish the Administrator at the principal office of the
Administrator prior to use thereof all offering memoranda, proxy
statements, reports to shareholders, sales literature, or other
material prepared for distribution to shareholders (or
prospective shareholders) of the Trust that refer in any way to
the Administrator. If the Administrator reasonably objects in
writing to such references within five business days (or such
other time as may be mutually agreed) after receipt thereof, the
Trust will modify such references in a manner reasonably
satisfactory to the Administrator. In the event of termination
of this Agreement, the Trust will continue to furnish to the
Administrator copies of any of the above-mentioned materials that
refer in any way to the Administrator. The Trust shall furnish
or otherwise make available to the Administrator such other
information relating to the business affairs of the Trust as the
Administrator at any time, or from time to time, reasonably
requests in order to discharge its obligations hereunder.
8. This Agreement may be amended by mutual written consent.
9. Any notice or other communication required to be given
pursuant to this Agreement shall be deemed duly given if
delivered or mailed by registered mail, postage prepaid, (1) to
the Administrator at State Street Bank and Trust Company, 1776
Heritage Drive, North Quincy, Massachusetts 02171, Attention:
BlackRock Asset Investors or (2) to the Trust at 345 Park Avenue,
New York, New York, 10154, Attention: President.
10. This Agreement (and the Compliance Manual and Fund Profile)
sets forth the entire agreement and understanding of the parties
hereto solely with respect to the matters covered hereby and the
relationship between the Trust and State Street Bank and Trust
Company as Administrator. Nothing in this Agreement shall
govern, restrict or limit in any respect any other business
dealings between the parties hereto unless otherwise expressly
provided herein.
11. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts
without reference to choice of law principles thereof and in
accordance with the Investment Company Act. In the case of any
conflict, the Investment Company Act shall control.
12. Notwithstanding anything to the contrary contained in this
Agreement, the parties hereto acknowledge and agree that, as
provided in Section 4.4 of the Declaration of Trust, this
Agreement is executed by the Trustees and/or officers of the
Trust, not individually but as such Trustees and/or officers of
the Trust, and the obligations hereunder are not binding upon any
of the Trustees or Shareholders individually but bind only the
estate of the Trust.
IN WITNESS WHEREOF, the parties hereto have caused this
instrument to be executed by their officers designated below as
of the day and year first above written.
BLACKROCK FUND INVESTORS I
By:________________________________
Name: Wesley R. Edens
Title: Chief Operating Officer
STATE STREET BANK AND TRUST COMPANY
By:________________________________
Name: Ronald E. Logue
Title: Executive Vice President
___________________________________________________________________________
EXHIBIT B
REGISTRAR AND
TRANSFER AGENCY AGREEMENT
between
BLACKROCK FUND INVESTORS I
and
STATE STREET BANK AND TRUST COMPANY
TABLE OF CONTENTS
Page
Article 1 Terms of Appointment; Duties of the Bank.............1
Article 2 Fees and Expenses....................................5
Article 3 Representations and Warranties of the Bank...........5
Article 4 Representations and Warranties of the Trust..........5
Article 5 Data Access and Proprietary Information..............6
Article 6 Indemnification......................................7
Article 7 Standard of Care.....................................9
Article 8 Covenants of the Trust and the Bank..................9
Article 9 Termination of Agreement............................10
Article 10 Assignment..........................................10
Article 11 Amendment...........................................11
Article 12 Massachusetts Law to Apply..........................11
Article 13 Force Majeure.......................................11
Article 14 Consequential Damages...............................11
Article 15 Merger of Agreement.................................11
Article 16 Disclaimer of Liability.............................11
REGISTRAR AND TRANSFER AGENCY AGREEMENT
AGREEMENT made as of the 21st day of December, 1994, by and
between BlackRock Fund Investors I, a Delaware business trust
having its principal office and place of business at 345 Park
Avenue, New York, NY 10154 (the "Trust"), and STATE STREET BANK
AND TRUST COMPANY, a Massachusetts trust company having its
principal office and place of business at 225 Franklin Street,
Boston, Massachusetts 02110 (the "Bank").
WHEREAS, the Trust desires to appoint the Bank as its
registrar, transfer agent, and dividend disbursing agent and the
Bank desires to accept such appointment;
NOW, THEREFORE, in consideration of the mutual covenants
herein contained, the parties hereto agree as follows:
Article 1 Terms of Appointment; Duties of the Bank
1.01 Subject to the terms and conditions set forth in
this Agreement, the Trust hereby appoints the Bank to act as, and
the Bank agrees to act as registrar, transfer agent and dividend
disbursing agent for the Trust s authorized and issued shares of
its beneficial interest ( Shares ).
1.02 The Bank agrees that it will perform the
following services:
(a) In accordance with procedures established from
time to time by agreement between the Trust and the Bank, the
Bank shall:
(i) Issue and record the appropriate number of Shares
as authorized and hold such Shares in the
appropriate Shareholder account;
(ii) Effect transfers of Shares by the registered
owners thereof upon receipt of appropriate
documentation including the written consent of the
Trust;
(iii) Prepare and transmit payments for dividends and
distributions declared by the Trust;
(iv) Mail to the purchaser confirmation of its purchase
and notice of the holding referred to in clause
(i);
(v) In connection with dividends and other
distributions, instruct the Custodian to wire or
otherwise electronically transfer net investment
income and capital gain dividends or distributions
to each Shareholder specifying the amount thereof
to be so transferred to such Shareholder;
(vi) Prepare and file with the Internal Revenue Service
and with the appropriate state agencies, and, if
required, mail to Shareholders such returns for
reporting any information as to the federal income
tax consequences of dividends and distributions
paid, credited or withheld as are required on the
part of the Trust to be so filed and mailed;
(vii) Prepare and mail an individual monthly statement
to each Shareholder showing all activity in such
Shareholder's account for the month. Upon request
from a Shareholder, the Bank shall prepare and
mail a year-to-date statement showing all activity
in such Shareholder's account on a year-to-date
basis;
(viii) Mail to Shareholders reports and proxy material,
proxy cards and other material supplied to it by
the Trust in connection with Shareholder meetings
of the Trust and receive, examine and tabulate
returned proxies and certify the vote to the
Trust, all as and to the extent requested by the
Trust;
(ix) Promptly answer all inquires by Shareholders
pertaining to their accounts maintained by the
Bank hereunder; and
(x) Cooperate with the Trust and the Trust's
independent public accountants in connection with
(a) the preparation of reports to Shareholders, to
the Securities and Exchange Commission (including
all required periodic and other reports), to state
securities commissioners, and to others, (b)
annual and other audits of the books and records
of the Trust, and (c) other matters of a like
nature.
1.03 Listed herein are additional services that more
fully define the services listed in Section 1.02. The Bank shall
perform the following services:
(a) Account Maintenance Services:
+ Establishing new accounts
+ Preparation and mailing of W-9 solicitation to new
accounts without T.I.N. s
+ Address changes
+ Processing T.I.N. changes
+ Processing routine and non-routine transfers of
ownership
+ Issuance of credit certificates
+ Posting debit and credit transactions
+ Providing a daily transfer journal of ownership
changes
+ Responding to written shareholder communications
+ Responding to shareholder telephone inquiries
+ Placing stop transfers
+ Releasing stop transfers
+ Replacing lost certificates
+ Registration of credit certificates
+ Effect transfers of shares by the registered
owners thereof upon receipt of appropriate
documentation including written consent of the
Trust.
(b) Dividend and Interest Disbursement Services:
+ Generate and mail dividend checks with one
enclosure
+ Generate and mail interest checks with one
enclosure
+ Electronic transfer of funds
+ Replace lost dividend and interest checks
+ Processing of backup withholding and remittance
+ Preparation and filing of Federal Tax Forms 1099
and 1042
+ Preparation and filing of State Tax information as
directed
+ Preparation of escheatment information (shares and
dividends)
(c) Dividend Reinvestment Services Provided:
+ Processing optional cash investments and
acknowledging same
+ The reinvestment of dividend proceeds for
participants
+ Participant withdrawal or sell requests
+ Preparation, mailing and filing of Federal Tax
Form 1099B for sales
(d) Annual Meeting Service:
+ Preparation for the mailing of proxies: proxy
statement, annual report and business reply
envelope
+ Providing one set of labels of banks, brokers and
nominees for broker search
+ Providing record date list
+ Tabulation of returned proxies
+ Daily reporting of tabulation results
+ Interface support during solicitation effort
+ Providing one inspector of election at annual
meeting
+ Providing an annual meeting voted list
(e) Addressing and Mailing Services:
+ Preparation for the addressing and mailing of
quarterly or semi-annual reports
(f) Informational Services Provided:
+ One (1) complete statistical report
- shareholders by state
- shareholders by classification code
- shareholders by share grouping
Article 2 Fees and Expenses
2.01 For the performance by the Bank pursuant to this
Agreement, the Trust agrees to pay the Bank an annual maintenance
fee as set out in the initial fee schedule attached hereto. Such
fees and out-of-pocket expenses and advances identified under
Section 2.02 below may be changed from time to time subject to
mutual written agreement between the Trust and the Bank.
2.02 In addition to the fee paid under Section 2.01
above, the Trust agrees to reimburse the Bank for reasonable out-
of-pocket expenses, including but not limited to confirmation
production, postage, forms, telephone, microfilm, microfiche,
tabulating proxies, records storage, or advances incurred by the
Bank for the items set out in the fee schedule attached hereto.
In addition, any other expenses incurred by the Bank at the
request or with the consent of the Trust, will be reimbursed by
the Trust.
2.03 The Trust agrees to pay all fees and reimbursable
expenses within five days following the receipt of the respective
billing notice. Postage and the cost of materials for mailing of
dividends, proxies, Trust reports and other mailings to all
Shareholder accounts shall upon the Bank s request, be advanced
to the Bank by the Trust at least seven (7) days prior to the
mailing date of such materials.
Article 3 Representations and Warranties of the Bank
The Bank represents and warrants to the Trust that:
3.01 It is a trust company duly organized and existing
and in good standing under the laws of the Commonwealth of
Massachusetts.
3.02 It is duly registered as a transfer agent with
the Securities Exchange Commission as a transfer agent pursuant
to Section 17A(c) of the Securities Exchange Act of 1934, as
amended.
3.03 It is duly qualified to carry on its business in
the Commonwealth of Massachusetts.
3.04 It is empowered under applicable laws and by its
Charter and By-Laws to enter into and perform this Agreement.
3.05 All requisite corporate proceedings have been
taken to authorize it to enter into and perform this Agreement.
3.06 It has and will continue to have access to the
necessary facilities, equipment and personnel to perform its
duties and obligations under this Agreement.
Article 4 Representations and Warranties of the Trust
The Trust represents and warrants to the Bank that:
4.01 It is a business trust duly organized and
existing and in good standing under the laws of the State of
Delaware.
4.02 It is empowered under applicable laws and by its
Declaration of Trust and By-Laws to enter into and perform this
Agreement.
4.03 All corporate proceedings required by said
Declaration of Trust and By-Laws have been taken to authorize it
to enter into and perform this Agreement.
4.04 It is a closed-end, non-diversified investment
company registered under the Investment Company Act of 1940, as
amended.
4.05 It shall make all required filings under federal
and state securities laws.
Article 5 Data Access and Proprietary Information
5.01 The Trust acknowledges that the data bases,
computer programs, screen formats, report formats, interactive
design techniques, and documentation manuals furnished to the
Trust by the Bank as part of the Trust's ability to access
certain Trust-related data ("Customer Data") maintained by the
Bank on data bases under the control and ownership of the Bank or
other third party ("Data Access Services") constitute
copyrighted, trade secret, or other proprietary information
(collectively, "Proprietary Information") of substantial value to
the Bank or other third party. In no event shall Proprietary
Information be deemed Customer Data. The Trust agrees to treat
all Proprietary Information as proprietary to the Bank and
further agrees that it shall not divulge any Proprietary
Information to any person or organization except as may be
provided hereunder. Without limiting the foregoing, the Trust
agrees for itself and its employees and agents:
(a) to access Customer Data solely from locations
as may be designated in writing by the Bank
and solely in accordance with the Bank's
applicable user documentation;
(b) to refrain from copying or duplicating
in any way the Proprietary Information;
(c) to refrain from obtaining unauthorized access to
any portion of the Proprietary Information, and if
such access is inadvertently obtained, to inform
the Bank in a timely manner of such fact and
dispose of such information in accordance with the
Bank's instructions;
(d) to refrain from causing or allowing Proprietary
Information acquired hereunder from being
retransmitted to any other computer facility or
other location, except with the prior written
consent of the Bank;
(e) that the Trust shall have access only to those
authorized transactions agreed upon by the
parties;
(f) to honor all reasonable written requests made by
the Bank to protect at the Bank's expense the
rights of the Bank in Proprietary Information at
common law, under federal copyright law and under
other federal or state law.
Each party shall take reasonable efforts to advise its employees
of their obligations pursuant to this Article 5. The obligations
of this Article shall survive any earlier termination of this
Agreement.
5.02 If the Trust notifies the Bank that any of the
Data Access Services do not operate in material compliance with
the most recently issued user documentation for such services,
the Bank shall endeavor in a timely manner to correct such
failure. Organizations from which the Bank may obtain certain
data included in the Data Access Services are solely responsible
for the contents of such data and the Trust agrees to make no
claim against the Bank arising out of the contents of such third-
party data, including, but not limited to, the accuracy thereof.
DATA ACCESS SERVICES AND ALL COMPUTER PROGRAMS AND SOFTWARE
SPECIFICATIONS USED IN CONNECTION THEREWITH ARE PROVIDED ON AN AS
IS, AS AVAILABLE BASIS. THE BANK EXPRESSLY DISCLAIMS ALL
WARRANTIES EXCEPT THOSE EXPRESSLY STATED HEREIN INCLUDING, BUT
NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE.
5.03 If the transactions available to the Trust
include the ability to originate electronic instructions to the
Bank in order to (i) effect the transfer or movement of cash or
Shares or (ii) transmit Shareholder information or other
information then in such event the Bank shall be entitled to rely
on the validity and authenticity of such instruction without
undertaking any further inquiry as long as such instruction is
undertaken in conformity with security procedures established by
the Bank from time to time.
Article 6 Indemnification
6.01 The Bank shall not be responsible for, and the
Trust shall indemnify and hold the Bank harmless from and
against, any and all losses, damages, costs, charges, reasonable
counsel fees, payments, expenses and liability arising out of or
attributable to:
(a) All actions of the Bank or its agents or
subcontractors required to be taken pursuant to
this Agreement, provided that such actions are
taken in good faith and without negligence or
willful misconduct.
(b) The Trust's lack of good faith, negligence or
willful misconduct which arise out of the breach
of any representation or warranty of the Trust
hereunder.
(c) The reliance on or use by the Bank or its agents
or subcontractors of information, records,
documents or services which (i) are received by
the Bank or its agents or subcontractors, and (ii)
have been prepared, maintained or performed by the
Trust or any other person or firm on behalf of the
Trust including but not limited to any previous
transfer agent or registrar.
(d) The reliance on, or the carrying out by the Bank
or its agents or subcontractors of any
instructions or requests of the Trust.
(e) The offer or sale of Shares in violation of any
requirement under the federal securities laws or
regulations or the securities laws or regulations
of any state that such Shares be registered in
such state or in violation of any stop order or
other determination or ruling by any federal
agency or any state with respect to the offer or
sale of such Shares in such state.
6.02 The Bank shall be responsible for any and all
losses, damages, costs,. charges, reasonable counsel fees,
payments, expenses and liability arising out of acts attributed
to the bad faith, negligence or willful misconduct of the Bank
and its agents or subcontractors.
6.03 At any time the Bank may apply to any officer of
the Trust for instructions, with respect to any matter arising in
connection with the services to be performed by the Bank under
this Agreement, and the Bank and its agents or subcontractors
shall not be liable and shall be indemnified by the Trust for any
action taken or omitted by it in reasonable reliance upon such
instructions provided that such action is taken in good faith and
without negligence. The Bank shall be entitled to receive, and
act upon, advice of counsel (which counsel shall be selected by
the Bank with reasonable care based on such counsel's
professional competence and reputation or shall be counsel for
the Trust) and shall be without liability for any action
reasonably taken pursuant to such advice in good faith and
without negligence. The Bank, its agents and subcontractors
shall be protected and indemnified in acting upon any paper or
document furnished by or on behalf of the Trust, reasonably
believed to be genuine and to have been signed by the proper
person or persons, or upon any instruction, information, data,
records or documents provided the Bank or its agents or
subcontractors by telephone, in person, machine readable input,
telex, CRT data entry or other similar means authorized by the
Trust and reasonably believed to be genuine, and shall not be
held to have notice of any change of authority of any person,
until receipt of written notice thereof from the Trust.
6.04 In order that the indemnification provisions
contained in this Article 6 shall apply, upon the assertion of a
claim for which the Trust may be required to indemnify the Bank,
its agents or subcontractors (the Covered Persons ), the Covered
Persons shall promptly notify the Trust of such assertion, and
shall keep the Trust advised with respect to all developments
concerning such claim. The Trust shall have the option, at its
election, to participate with the Covered Persons in the defense
of such claim or to defend against said claim in its own name or
in the name of the Covered Persons and, in the event that the
Trust elects to defend against said claim in its own name or in
the name of the Covered Persons, the Covered Persons shall incur
no further legal or other expenses for which they shall be
entitled to indemnification from the Trust. No Covered Person
shall in any case confess any claim or make any compromise in any
case in which the Trust may be required to indemnify the Covered
Persons except with the Trust's prior written consent.
Article 7 Standard of Care
7.01 The Bank shall at all times act in good faith and
without negligence or willful misconduct and agrees to use its
best efforts within reasonable limits to insure the accuracy of
all services performed under this Agreement, but assumes no
responsibility and shall not be liable for loss or damage due to
errors unless said errors are caused by its negligence, bad
faith, or willful misconduct or that of its employees.
Article 8 Covenants of the Trust and the Bank
8.01 The Trust shall promptly furnish to the Bank the
following:
(a) A certified copy of the resolution of the Board of
Trustees of the Trust authorizing the appointment
of the Bank and the execution and delivery of this
Agreement.
(b) A copy of the Declaration of Trust and By-Laws of
the Trust and all amendments thereto.
8.02 The Bank hereby agrees to establish and maintain
facilities and procedures reasonably acceptable to the Trust for
safekeeping of stock certificates, check forms and facsimile
signature imprinting devices, if any; and for the preparation or
use, and for keeping account of, such certificates, forms and
devices.
8.03 The Bank shall keep records relating to the
services to be performed hereunder, in the form and manner
required by applicable law and otherwise as it may deem
advisable. The Bank agrees that all such records prepared or
maintained by the Bank relating to the services to be performed
by the Bank hereunder are the property of the Trust and will be
preserved, maintained and made available in accordance with
Section 31 of the Investment Company Act of 1940, as amended, and
the Rules thereunder, and will be surrendered promptly to the
Trust on and in accordance with its request.
8.04 The Bank and the Trust agree that all books,
records, information and data pertaining to the business of the
other party which are exchanged or received pursuant to the
negotiation or the carrying out of this Agreement shall remain
confidential, and shall not be voluntarily disclosed to any other
person, except as may be required by law.
8.05 In cases of any requests or demands for the
inspection of the Shareholder records of the Trust, the Bank will
endeavor to notify the Trust and to secure instructions from an
authorized officer of the Trust as to such inspection. The Bank
reserves the right, however, to exhibit the Shareholder records
to any person whenever it is advised by its counsel that it may
be held liable for the failure to exhibit the Shareholder records
to such person.
Article 9 Termination of Agreement
9.01 This Agreement may be terminated by either party
upon sixty (60) days written notice to the other.
9.02 Should the Trust exercise its right to terminate,
all reasonable out-of-pocket expenses of the Bank associated with
the movement of records and material will be borne by the Trust.
Article 10 Assignment
10.01 Except as provided in Section 10.03 below,
neither this Agreement nor any rights or obligations hereunder
may be assigned by either party without the written consent of
the other party.
10.02 This Agreement shall inure to the benefit of and
be binding upon the parties and their respective permitted
successors and assigns.
10.03 The Bank may, without further consent on the
part of the Trust, subcontract for the performance hereof with
(i) Boston Financial Data Services, Inc., a Massachusetts
corporation ("BFDS") which is duly registered as a transfer agent
pursuant to Section 17A(c) of the Securities Exchange Act of
1934, as amended ("Section 17A(c)"), (ii) a BFDS subsidiary duly
registered as a transfer agent pursuant to Section 17A(c) or
(iii) a BFDS affiliate duly registered as a transfer agent
pursuant to Section 17A(c); provided, however, that the Bank
shall be as fully responsible to the Trust for the acts and
omissions of any subcontractor as it is for its own acts and
omissions.
Article 11 Amendment
11.01 This Agreement may be amended or modified by a
written agreement executed by both parties and authorized or
approved by a resolution of the Board of Trustees of the Trust.
Article 12 Massachusetts Law to Apply
12.01 This Agreement shall be construed and the
provisions thereof interpreted under and in accordance with the
laws of the Commonwealth of Massachusetts.
Article 13 Force Majeure
13.01 In the event either party is unable to perform
its obligations under the terms of this Agreement because of acts
of God, strikes, equipment or transmission failure or damage
reasonably beyond its control, or other causes reasonably beyond
its control, such party shall not be liable for damages to the
other resulting from such failure to perform or otherwise from
such causes.
Article 14 Consequential Damages
14.01 Neither party to this Agreement shall be liable
to the other party for consequential damages under any provision
of this Agreement or for any consequential damages arising out of
any act or failure to act hereunder.
Article 15 Merger of Agreement
15.01 This Agreement constitutes the entire agreement
between the parties hereto and supersedes any prior agreement
with respect to the subject hereof whether oral or written.
Article 16 Disclaimer of Liability
16.01 Notwithstanding anything to the contrary
contained in this Agreement, the parties hereto acknowledge and
agree that, as provided in Section 4.4 of the Declaration of
Trust, this Agreement is executed by the Trustees and/or officers
of the Trust by them not individually but as such Trustees and/or
officers of the Trust, and the obligations hereunder are not
binding upon any of the Trustees or Shareholders individually but
bind only the estate of the Trust.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed in their names and on their behalf by
and through their duly authorized officers, as of the day and
year first above written.
BLACKROCK FUND INVESTORS I
By:
Wesley R. Edens
Chief Operating Officer
ATTEST:
STATE STREET BANK AND TRUST
COMPANY
By:
ATTEST:
SUBSCRIPTION PROCEDURES
Dear Prospective BlackRock Fund Investors I Shareholder:
To become a shareholder of BlackRock Fund Investors I, which
will in turn invest all of it assets in BlackRock Asset Investors,
please carefully follow the subscription procedures detailed below:
1. Please read the Confidential Private Placement
Memorandum dated December 21, 1994 (together with any supplements
thereto) and appendices thereto and the Subscription Agreement
(collectively, the "Offering Documents"). If you would like to
receive any additional information, or if you have any questions
regarding BlackRock Fund Investors I (the "Fund") or BlackRock Asset
Investors (the "Trust") or the terms of the offering, please contact
Laurence D. Fink ((212) 754-5546), Ralph L. Schlosstein ((212) 754-
5547), Susan L. Wagner ((212) 754-5534) or Wesley R. Edens ((212) 754-
5346) at BFM Advisory L.P.;
2. Please complete and sign the Subscription Agreement
enclosed herein (the "Subscription Agreement"). When completing the
Subscription Agreement, please be sure to respond to the inquiries
contained in Sections 6 and 7 of the Subscription Agreement. Please
mail your completed Subscription Agreement to:
BlackRock Fund Investors I
c/o BFM Advisory L.P.
Subscriptions Department
345 Park Avenue
New York, New York 10154
3. If you are subscribing for shares on behalf of an entity
(i.e., other than a natural person), please complete the applicable
Exhibit A, B or C attached to the Subscription Agreement and Exhibit D
if you are an individual subscribing for shares.
4. The minimum capital commitment (the "Capital
Commitment") per investor for BlackRock Fund Investors I, which may be
waived at the sole discretion of BlackRock Financial Management, L.P.
(the "Advisor"), is the lesser of (a) $5 million or (b) 0.83% of the
Trust's maximum amount of Capital Commitments ($600 million; the
"Maximum Commitments"). Your Capital Commitment will be subject to
periodic drawdowns as described in the Offering Documents and the
Subscription Agreement. All capital calls must be paid for by wire of
immediately available funds on the date specified in the written
notice of a capital call, which date shall be no sooner than 14 days
after the date the written notice of the capital call is sent to you
by the Fund. Payment for subscription of shares will only be accepted
by same day wire transfer.
5. An initial closing is scheduled to take place on or
about January 6, 1995 (the "Initial Closing") at which time the Fund
will accept initial Subscription Agreements but will not sell any
Shares. The Fund reserves the right to delay the Initial Closing, but
the Initial Closing shall not be held on a date later than March 31,
1995.
The Subscription Agreement is not binding on the Fund or the
Advisor until accepted by the Fund and the Advisor, each of which
reserves the right to reject, in whole or in part, in its sole
discretion, the subscription made hereby. If within 14 days of the
Fund's acknowledged receipt of the Subscription Agreement, the
Subscription Agreement is not accepted by the Fund and the Advisor and
an accepted copy is not delivered to you, the Subscription Agreement
shall be of no further force and effect unless you agree in writing to
an extension of such 14 day period.
Thank you for your interest in BlackRock Fund Investors I
and BlackRock Asset Investors.
BFM Advisory L.P.
SUBSCRIPTION AGREEMENT
SUBSCRIPTION AGREEMENT (this "Agreement") made as of this ___ day of
________, 1995 among BlackRock Fund Investors I, a Delaware business
trust, with its principal offices at 345 Park Avenue, New York, New
York 10154 (the "Fund"), BlackRock Financial Management L.P., a
Delaware limited partnership with its principal office at 345 Park
Avenue, New York, New York 10154 (the "Advisor") and the undersigned
(the "Subscriber").
W I T N E S S E T H:
WHEREAS, the Fund is authorized to issue an aggregate of up
to 200,000,000 shares of beneficial interest, par value $.01 per
share, of the Fund (the "Shares"), upon the terms and subject to the
conditions hereinafter set forth, and the Subscriber desires to
irrevocably commit, upon the terms and subject to the conditions
hereinafter set forth, to purchase up to a specified aggregate dollar
amount of Shares ("Capital Commitment") as set forth on the signature
page hereof;
NOW, THEREFORE, for and in consideration of the premises and
the mutual representations and covenants hereinafter set forth, the
parties hereto do hereby agree as follows:
1. Subscription for shares and Representations and Agreements of
Subscriber
1.1 The Subscriber hereby acknowledges that (a) the Fund
was organized solely for the purpose of investing in BlackRock Asset
Investors (the "Trust"); (b) by executing this Agreement, the
Subscriber irrevocably commits, upon the terms and subject to the
conditions hereinafter set forth, to purchase up to a specified
aggregate dollar amount (net of cash distributions of capital from the
Fund to the Subscriber) of Shares of the Fund as set forth upon the
signature page hereof; and (c) the Fund will, in turn, be obligated to
irrevocably commit, subject to parallel terms, to purchase the same
aggregate dollar amount of shares of beneficial interest of the Trust
as the Capital Commitment of the Subscriber and the capital
commitments of all other subscribers whose subscription agreements are
accepted by the Fund.
1.2 The initial closing is expected to occur on or about
January 6, 1995 (the "Initial Closing"), although the Initial Closing
may occur on any date, prior to March 31, 1995, after which at least
$200 million of total capital commitments ("Total Trust Commitments")
have been secured from all investors in the Trust. Subsequent
closings may be held on or before March 31, 1995.
1.3 Within 14 days after March 31, 1995, the Trust will
give the Subscriber written notice of the Total Trust Commitments and
the Subscriber's Capital Commitment expressed as a percentage of Total
Trust Commitments.
1.4 As summarized in the Confidential Private Placement
Memorandum dated December 21, 1994 (the "Memorandum"), pursuant to and
subject to all of the terms of the Fund's Declaration of Trust, as
amended from time to time (the "Declaration"), under certain
circumstances following a Trigger Notification Date (as defined in the
Declaration), each Subscriber will be given the right to cancel its
unfunded Capital Commitment and, if so approved by holders of a
majority of the Trust's shares, all unfunded Capital Commitments will
be cancelled and, if so approved, the Trust, the Fund and the Other
Funds (as defined below) will terminate and promptly wind up their
affairs. In addition, pursuant to and subject to all of the terms of
the Declaration, all unfunded Capital Commitments will be cancelled
and the Trust, the Fund and the Other Funds will terminate and
promptly wind up their affairs at any time if so approved by holders
of 75% of the Trust's shares. Subject to the foregoing, the period
during which the Capital Commitment may be drawn down by the Fund (the
"Commitment Period") will expire on the third anniversary of the
Initial Closing; provided, however, that the Advisor, upon approval by
holders of a majority of the outstanding shares of beneficial interest
of the Trust, may extend the Commitment Period for up to one
additional year if (i) at least 50% of the Total Trust Commitments
have been drawn down and invested prior to such expiration date and
(ii) the Advisor determines, in its reasonable judgment, that
sufficient opportunities exist to deploy the unused Total Trust
Commitments during the extension period.
1.5 The Fund will draw down capital from time to time to
make investments in the Trust upon receiving, simultaneously with each
other investment company investing in the Trust (the "Other Funds" and
collectively with the Fund, the "Funds"), a written capital call from
the Trust. Undrawn Capital Commitments by the Funds may be called by
the Trust during the Commitment Period in any amount not less than $10
million in the aggregate; provided that each such capital call to each
of the Funds shall be expressed as a pro rata percentage of such
Fund s undrawn Capital Commitment to the Trust and each capital call
from the Fund to the Subscribers will be expressed as a pro rata
percentage of each Subscriber's undrawn Capital Commitment to the
Fund.
1.6 In order to make a capital call on the Subscriber, the
Fund must provide at least 14 days prior written notice of the amount
of the call (both as a percentage of the unpaid portion of the
Subscriber's Capital Commitment and as a dollar amount) and the date
(no sooner than 14 days following the capital call) on which
immediately available funds must be received by the Fund. Upon
receipt of such funds in the amount of the call, the Fund will issue
in the name of and for the account of the Subscriber that number of
full and fractional Shares having an aggregate net asset value equal
to the amount of the capital call from the Subscriber as determined by
the Fund at any time within 48 hours, excluding Saturdays, Sundays and
holidays on which banks in the City of New York or the New York Stock
Exchange are not open for business, prior to the date of such
issuance. Upon the Subscriber's payment in full of the amount of a
call, the Subscriber's undrawn Capital Commitment shall be reduced by
such amount; provided, however, that the Subscriber's undrawn Capital
Commitment shall be increased (but not in excess of the original
amount) by any cash distributions of capital from the Fund to the
Subscriber during the Commitment Period. At or prior to the date of
each capital call, the Fund will advise the Subscriber of the total
amount of such Subscriber's undrawn Capital Commitment, together with
details of any return of capital subsequent to the previous capital
call.
1.7 If the Subscriber fails to pay the full amount of a
capital call by the date specified in the notice, the Fund will send a
second notice of such call. If the Subscriber fails to pay the full
amount of such capital call in immediately available funds on or prior
to 5:30 p.m. on the 14th day (the "Default Date") after the date of
such second notice, the Fund shall be entitled at any time prior to
the 120th day after the Default Date to repurchase, retire and cancel
all Shares previously purchased by the Subscriber at a price per Share
equal to 50% of the net asset value per Share utilized for purposes of
the capital call which the Subscriber failed to satisfy. Other than
as set forth in this Section 1.7, the Funds shall not purchase, redeem
or otherwise acquire their Shares.
1.8 If this Agreement is accepted by the Fund after the
date on which the Trust receives funds in satisfaction of its first
capital call (the "Initial Funding Date"), the Fund will specify in
such acceptance, and the Fund and each Other Fund will specify in a
written notice to each of its respective subscribers that has a
Capital Commitment expressed as a percentage of the Total Trust
Commitments, the amount that the new Subscriber and each such
percentage subscriber, respectively, shall pay in immediately
available funds within 14 days after such acceptance or notice, which
amount shall be sufficient to permit all future capital calls to be
made on a pro rata basis; provided that the Trust will accept new or
additional subscriptions no more frequently than biweekly after the
Initial Funding Date. Payments due will not be treated as capital
calls subject to the minimum as set forth in Section 1.5.
1.9 The Subscriber understands and acknowledges (i) that
the Subscriber must bear the economic risk of his investment in the
Shares; (ii) that the Shares have not been registered under the
Securities Act of 1933 (the "1933 Act") or any state or foreign
securities laws, that the Fund has no intention of doing so and that
the Subscriber has no right to require it to do so and that therefore
such Shares cannot be resold or transferred unless they are
subsequently registered under the 1933 Act and applicable state laws
or unless an exemption from such registration is available; (iii) that
the Subscriber is purchasing the Shares for investment purposes only
for the account of the Subscriber and not with any view toward a
distribution thereof; (iv) that the Subscriber has no contract,
undertaking, agreement or arrangement with any person to sell,
transfer or pledge to such person or anyone else any of the Shares
which the Subscriber hereby subscribes to purchase or any part thereof
or interest therein, and the Subscriber has no present plans to enter
into any such contract, undertaking, agreement or arrangement; (v)
that the Subscriber understands that, except as otherwise provided in
the Declaration, the Shares cannot be transferred without the prior
written consent of the Fund, which will not be unreasonably withheld;
(vi) that there will be no public market for the Shares; (vii) that
any disposition of the Shares or any interest therein may result in
unfavorable tax consequences to the Subscriber; and (viii) that this
Agreement represents an interest in Shares and is subject to the
foregoing to the same extent as the Shares.
1.10 The Subscriber recognizes that the purchase of Shares
involves a high degree of risk in that (i) the Fund has no operating
history; (ii) an investment in the Fund is highly speculative, and
only investors who can afford the loss of their entire investment
should consider investing in the Fund and the Shares; (iii) the
Subscriber may not be able to dispose of his investment; (iv)
transferability of the Shares is extremely limited and (v) in the
event of a disposition, the Subscriber could sustain the loss of his
entire investment.
1.11 The Subscriber represents that he is an "accredited
investor" as such term is defined in Rule 501 of Regulation D
promulgated under the 1933 Act, as indicated by the responses to the
questions contained in Section 6 hereof.
1.12 The Subscriber hereby represents that he has been
afforded the opportunity to ask questions of and obtain additional
information concerning the terms and conditions of the offering of the
Shares or to verify the information contained in the Confidential
Private Placement Memorandum dated December 21, 1994, as supplemented
from time to time, and the appendices thereto (collectively, the
"Offering Documents") or otherwise relative to the Fund and the Trust,
to the extent that the officers and representatives of the Fund
possess such information or can acquire it without unreasonable effort
or expense. All such questions if asked have been answered
satisfactorily and all such information provided has been found to be
fully satisfactory.
1.13 The Subscriber hereby represents that the Subscriber
has received, reviewed carefully and understands fully the Offering
Documents and has consulted with his own investment advisor, attorney
or accountant with respect to the investment contemplated hereby and
its suitability for the Subscriber. The Subscriber has evaluated the
risks of investing in the Shares, and has determined that the Shares
are a suitable investment for the Subscriber. The Subscriber can bear
the economic risk of this investment and can afford a complete loss of
his investment. In evaluating the suitability of an investment in the
Shares, the Investor has not relied upon any representations or other
information (whether oral or written) other than as set forth in the
Offering Documents and other than independent investigations made by
the Subscriber or representative(s) of the Subscriber.
1.14 The Subscriber hereby acknowledges that the offering of
the Shares has not been reviewed, endorsed or recommended by the
United States Securities and Exchange Commission (the "Commission") or
any state or foreign regulatory authority and that no federal, state
or foreign authority has made any finding or determination as to the
fairness of the offering of the Shares.
1.15 The Subscriber understands that there is no market for
the Shares and that no market is expected to develop for the Shares.
The Subscriber hereby agrees that it will not dispose of an interest
in this Agreement or any of the Shares by way of sale, transfer,
assignment, pledge, hypothecation or any other means other than in
accordance with the provisions set forth in the Declaration (which
provisions are summarized in the Memorandum).
1.16 Any information which the Subscriber has furnished to
the Fund in Section 6 or on the signature page hereof is correct and
complete as of the date of this Agreement and if there should be any
material change, prior to the Initial Closing, in such information or
in any representation or warranty made by the Subscriber herein, the
Subscriber will immediately furnish such revised or corrected
information to the Fund.
1.17 The Subscriber hereby represents that the address or
the addresses of the Subscriber furnished by him on the signature page
hereof is the undersigned's principal residence if he is a natural
person or its principal business address or addresses if it is a
corporation or other entity.
1.18 The representations, warranties, agreements,
undertakings and acknowledgements made by the Subscriber in this
Agreement (the "Covered Items") are made with the intent that they be
relied upon by the Fund in determining the Subscriber's suitability as
a purchaser of the Shares, and shall survive any such purchase. The
Subscriber recognizes that the offer of the Shares to him was made in
reliance upon his representations and warranties and the
acknowledgments and agreements set forth herein, and hereby agrees to
indemnify, to the extent of the Subscriber's undrawn Capital
Commitment and the Subscriber's interest in the Fund (which shall be
the maximum indemnification liability of the Subscriber for all
purposes hereof), the Fund, the Advisor and each of their respective
Affiliates (as defined in the Declaration), and to hold each of them
harmless against, all liabilities, costs or expenses (including
reasonable attorneys' fees) arising as a result of the sale or
distribution of the Shares by the Subscriber in violation of the
registration requirements of the 1933 Act (or other applicable law) or
any material misrepresentation or material breach by the Subscriber of
the Covered Items.
2. Representations by, and Covenants of, the Advisor and the Fund
2.1 As of the Initial Closing, the Advisor, and as of each
subsequent closing date, the date of notice of each call and the date
of each sale of Shares by the Fund (each, a "Subsequent Date"), the
Advisor (but only to the best of its knowledge insofar as the Fund is
concerned) and the Fund (but solely as to the Fund and not as to any
Other Fund or as to the Advisor) represent, warrant and, where
applicable, covenant that (A) the Fund has been duly organized, and is
subsisting and in good standing, as a business trust under the laws of
the State of Delaware and has the requisite power and authority to
conduct its business as described in the Offering Documents and the
Declaration and (B) each of the Declaration, the Declaration of Trust
of each of the Other Funds, the Investment Advisory Agreement (the
"Advisory Agreement") in effect between the Fund and the Advisor, this
Agreement, the subscription agreements with respect to the Other Funds
and any other documents executed and delivered by the Fund, the Other
Funds, their respective Trustees or the Advisor in connection
therewith or herewith have been duly authorized, executed and
delivered by such persons, and are the legal, valid and binding
obligations of such persons enforceable in accordance with their
respective terms, except (i) that such enforcement may be subject to
bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect relating to creditors' rights and (ii)
that the remedy of specific performance and injunctive and other forms
of equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may be
brought.
2.2 As of the Initial Closing and as of each Subsequent
Date, the Advisor represents, warrants and, where applicable,
covenants that it has been duly organized, and is subsisting and in
good standing, under the laws of the state of its organization and has
the requisite power and authority to enter into and perform its
obligations under the Advisory Agreement.
2.3 As of the Initial Closing, the Advisor, and as of each
Subsequent Date, the Advisor and the Fund represent, warrant and,
where applicable, covenant that the Shares have been duly and validly
authorized and, when delivered and paid for in accordance with this
Agreement, will be duly and validly issued units of beneficial
interest in the Fund and that the Subscriber shall be entitled to all
the benefits of a beneficial owner of the Fund under the Declaration
and the Delaware Act (as defined in the Declaration).
2.4 As of the Initial Closing, the Advisor represents and
warrants that the Fund is duly qualified to do business and is in good
standing in the State of New York and is not required by virtue of the
conduct of its business to be qualified as a foreign corporation in
any other jurisdiction.
2.5 As of the Initial Closing, the Advisor, and as of each
Subsequent Date, the Advisor, to the extent within its control, and
the Fund represent, warrant and, where applicable, covenant that the
Fund will use the proceeds from the sale of the Shares solely to
invest in the Trust and to pay the Fund's expenses.
2.6 As of the Initial Closing, the Advisor, and as of each
Subsequent Date, the Advisor, to the extent within its control, and
the Fund represent, warrant and, where applicable, covenant that
commencing on the Initial Funding Date, the Fund will (i) be an
investment company within the meaning of the Investment Company Act of
1940 (the "1940 Act") and be registered as such under the 1940 Act and
(ii) qualify for and be entitled to receive the special tax treatment
afforded a regulated investment company under Subchapter M of the
Internal Revenue Code of 1986, as amended. Without limiting the
generality of the foregoing, to the extent within the control of the
Advisor, commencing on the Initial Funding Date, the Fund will be
deemed to have outstanding securities (other than short-term paper)
beneficially owned by more than 100 persons as determined in
accordance with provisions of Section 3(c)(1) of the 1940 Act and the
Fund will not be a company described in Sections 3(c)(5) and/or
3(c)(6) of the 1940 Act.
2.7 As of the Initial Closing, the Advisor, and as of each
Subsequent Date, the Advisor (to the best of its knowledge insofar as
the Fund and any Other Fund is concerned) and the Fund (but solely as
to the Fund and not as to any Other Fund or as to the Advisor), to the
best of its knowledge, represent, warrant and, where applicable,
covenant that neither the Fund, any Other Fund, nor the Advisor is in
default (nor has any event occurred which with notice, lapse of time,
or both, would constitute a default) in the performance of any
obligation, agreement or condition contained in the Declaration or the
Declaration of Trust of the respective Other Fund, or in any
indenture, mortgage, deed of trust, credit agreement, note or other
evidence of indebtedness or any lease or other agreement or
understanding, or any license, permit, franchise or certificate, to
which any such person is a party or by which any thereof is bound or
to which the properties of any thereof are subject, nor is any such
person in violation of any statute, regulation, law, order, writ,
injunction, judgment or decree to which it is subject, which default
or violation would materially adversely affect the business or
financial condition of such person or impair such person's ability to
carry out its obligations under this Agreement, any subscription
agreement with respect to any Other Fund, the Declaration or the
Declaration of Trust of the respective Other Fund, as the case may be,
or impair the Advisor's ability to carry out its obligations under the
Advisory Agreement.
2.8 As of the Initial Closing, the Advisor, and as of each
Subsequent Date, the Advisor, and the Fund (but solely as to the Fund
and not as to any Other Fund or as to the Advisor), represent, warrant
and, where applicable, covenant that there is no litigation,
investigation, or other proceeding pending or, to the best of its or
their knowledge, threatened against the Fund, any Other Fund, the
Advisor or any of their respective Affiliates (excluding from such
term solely for this purpose any investor in the Fund or in any Other
Fund other than the Advisor or its Affiliates) which, if adversely
determined, would materially adversely affect the business or
financial condition of the Fund, any Other Fund or the Advisor or the
ability of such person to carry out its obligations under this
Agreement, any subscription agreement with respect to any Other Fund,
the Declaration or the Declaration of Trust of the respective Other
Fund, as the case may be, or impair the Advisor's ability to carry out
its obligations under the Advisory Agreement.
2.9 As of the Initial Closing, the Advisor, and as of each
Subsequent Date, the Advisor, to the best its knowledge, and the Fund,
to the best of its knowledge, represent, warrant and, where
applicable, covenant that neither the Fund nor any person acting on
its behalf has taken any actions that would subject the issuance and
sale of the Shares to the registration and prospectus delivery
provisions of the 1933 Act.
2.10 As of the Initial Closing, the Advisor, and as of each
Subsequent Date occurring on or prior to March 31, 1995, the Advisor,
and the Fund, represent, warrant and, where applicable, covenant that
the Offering Documents do not contain any untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements contained therein not misleading in light of the
circumstances under which they are or were made.
2.11 As of the Initial Closing, the Advisor, and as of each
Subsequent Date, the Advisor and the Fund represent, warrant and,
where applicable, covenant, that the terms and rights offered to
investors that enter into subscription agreements with the Fund on any
date after the Initial Closing will be no more favorable than those
offered to the Fund's subscribers as of the Initial Closing, and the
terms and rights offered to investors that enter into subscription
agreements with any Other Fund on any date after the Initial Closing
will be no more favorable than those offered to such Other Fund's
subscribers as of the Initial Closing.
2.12 As of the Initial Closing and as of each Subsequent
Date, the Advisor represents, warrants and, where applicable,
covenants that the Subscriber has been provided true, complete and
correct copies or forms of all letters, agreements, undertakings and
other documents by and among the Fund or any Other Fund or the Advisor
or an Affiliate thereof relative to any such person's purchase of
shares of the Fund or any Other Fund or any terms, conditions,
operations, obligations or other understandings affecting the Fund or
such Other Fund.
2.13 As of the Initial Closing and as of each Subsequent
Date, the Advisor represents, warrants and, where applicable,
covenants that the Advisor will reimburse the Trust, BlackRock Capital
Finance, the Fund and the Other Funds for, or cause to be paid on
behalf of the Trust, BlackRock Capital Finance, the Fund and the Other
Funds, each such entity's allocable share of the aggregate offering
and organizational expenses of the Trust, BlackRock Capital Finance,
the Fund and the Other Funds in excess of $750,000.
2.14 The Advisor and/or the Fund, as case may be,
acknowledges that the representations, warranties and covenants made
by the Advisor and/or the Fund, as the case may be, are made with the
intent that they be relied upon by the Subscriber in committing to
purchase and in purchasing Shares and shall survive any such purchase
and that the commitment to purchase, and each purchase of, Shares by
the Subscriber was and will be made in reliance upon the
representations, warranties and covenants set forth herein. To the
extent such representations, warranties and covenants are made by the
Advisor and the Fund, they are made jointly and severally: provided,
however, that if the Subscriber brings action against only the Fund or
only the Advisor, the defending party may implead or seek contribution
from the other and the other will, in addition to any liability or
contribution imposed, be liable to the defending party for the
incremental costs incurred by the defending party in connection with
such impleader or contribution proceeding if (a) the other is found to
be responsible for 25% or more of the aggregate recovery, (b) the
other is found to be responsible for $1,250,000 or more or (c) the
defending party is found to be not responsible for any amount and the
other is found to be responsible for some amount. The Advisor hereby
agrees to indemnify, to the extent of the dollar amount of the
Subscriber's Capital Commitment (which shall be the maximum
indemnification liability of the Advisor for all purposes hereof), the
Subscriber and any Affiliates, and to hold each of them harmless
against liabilities, costs or expenses (including reasonable
attorneys' fees) arising as a result of the sale or distribution of
the Shares by the Fund or the Advisor (or any Affiliate of the
Advisor) in violation of the registration requirements of the 1933 Act
(or other applicable law) or any material misrepresentation or
material breach by the Advisor of its representations, warranties and
covenants made herein.
3. Closing Conditions
3.1 The Subscriber's obligations hereunder are subject to
the fulfillment (or waiver by the Subscriber), prior to or at the time
of the Initial Closing, of the following conditions:
(a) The representations and warranties set forth
herein on the part of the Advisor shall be true and correct as if made
on and as of the time of the Initial Closing.
(b) The Initial Closing shall have occurred not later
than March 31, 1995; the Total Trust Commitments at the time of the
Initial Closing shall be at least $200 million and such Total Trust
Commitments shall include a capital commitment on the part of the
Advisor (either directly or through one or more affiliates) to one or
more of the Fund and the Other Funds in an aggregate amount equal to
the lesser of 5% of such Total Trust Commitments and $27 million.
(c) The certificate of trust with respect to the Fund
shall have been duly filed in the Office of the Secretary of State of
the State of Delaware.
(d) The Advisor shall have executed and delivered to
the Subscriber a certificate satisfactory in form and substance to the
Subscriber certifying the fulfillment of the conditions specified in
clauses (a) through (c) above.
(e) The Subscriber shall have received opinions dated
the date of the Initial Closing from Skadden, Arps, Slate, Meagher &
Flom in substantially the form attached hereto as Schedule 1.
3.2 If at the Initial Closing the Advisor fails to tender
to the Subscriber the documents specified herein which are required to
be delivered to the Subscriber at the Initial Closing or if any of the
conditions specified in Section 3.1 above shall not have been
fulfilled, the Subscriber shall, at its election, be relieved of all
further obligations under this Agreement.
4. Miscellaneous
4.1 Any notice or other communication given hereunder shall
be deemed sufficient if in writing and sent by facsimile with written
confirmation of receipt and a copy of the notice sent by overnight
courier, or if delivered by hand against written receipt therefor,
addressed to BlackRock Fund Investors I, c/o BFM Advisory L.P., 345
Park Avenue, New York, New York 10154, Attention: Ralph L.
Schlosstein, President (Fax: 212-754-8760), BlackRock Financial
Management L.P., 345 Park Avenue, New York, New York 10154, Attention:
Ralph L. Schlosstein, President, (Fax: 212-754-8760) or to the
Subscriber at his address or facsimile number indicated on the
signature page of this Agreement, or in either case such other person,
address or facsimile number as shall have been given by notice to the
other party. Notices shall be deemed to have been given on the date
sent or delivered by hand in accordance with the provisions of this
Section 4.1.
4.2 This Agreement shall not be changed, modified or
amended except by a writing signed by the parties hereto, and this
Agreement may not be discharged except by performance in accordance
with its terms or by a writing signed by such parties.
4.3 This Agreement shall be binding upon and inure to the
benefit of the parties hereto and to their respective heirs, legal
representatives, successors and assigns. This Agreement and any other
agreements referred to herein sets forth the entire agreement and
understanding between the parties as to the subject matter thereof and
merges and supersedes all prior discussions, agreements and
understandings of any and every nature among them with respect to such
subject matter. This Agreement may not be assigned without the prior
written consent of each party hereto or the successor to substantially
all of the business of any such person.
4.4 Upon the execution and delivery of this Agreement by
the Subscriber, this Agreement shall become a binding obligation of
the Subscriber with respect to the purchase of Shares as herein
provided and shall survive insolvency, merger, consolidation, share
exchange, sale of assets and the death or disability of the
Subscriber; provided, however, if within 14 days of the Fund's
acknowledged receipt of the Subscription Agreement, the Subscription
Agreement is not accepted by the Fund and the Advisor and an accepted
copy is not delivered to the Subscriber, the Subscription Agreement
shall be of no further force and effect unless the Subscriber agrees
in writing to an extension of such 14 day period.
4.5 Notwithstanding the place where this Agreement may be
executed by any of the parties hereto, the parties expressly agree
that all the terms and provisions hereof shall be construed in
accordance with and governed by the laws of the State of New York,
without regard to principles of conflicts of law.
4.6 The holding of any provision of this Agreement to be
invalid or unenforceable by a court of competent jurisdiction shall
not affect any other provision of this Agreement, which shall remain
in full force and effect.
4.7 It is agreed that a waiver by either party of a breach
of any provision of this Agreement shall not operate, or be construed,
as a waiver of any subsequent breach by that same party.
4.8 This Agreement may be executed in one or more
counterparts each of which shall be deemed an original, but all of
which shall together constitute one and the same instrument.
5. Notice to Certain State Residents
5.1 In making an investment decision investors must rely on
their own examination of the issuer and the terms of the offering,
including the merits and risks involved. These securities have not
been recommended by any federal or state securities commission or
regulatory authority in any jurisdiction. Furthermore the foregoing
authorities have not confirmed the accuracy or determined the adequacy
of this document. Any representation to the contrary is a criminal
offense.
5.2 These securities are subject to restrictions on
transferability and resale and may not be transferred or resold except
as permitted under the 1933 Act, as amended, and the applicable state
securities laws, pursuant to registration or exemption therefrom.
Investors should be aware that they will be required to bear the
financial risks of this investment.
5.3 The Attorney General of the State of New York has not
passed on or endorsed the merits of this offering. Any representation
to the contrary is unlawful.
5.4 Florida Residents: Where sales are made to five or
more persons in Florida (excluding certain institutional purchasers
described in section 517.061(7) of the Florida Securities and Investor
Protection Act) (the "Act"), any such sale made pursuant to section
517.061(11) of the Act shall be voidable by the purchaser either
within three days after the first tender of consideration is made by
such purchaser to the issuer, or an agent of the issuer, or an escrow
agent or within three days after the availability of that privilege is
communicated to such purchaser, whichever occurs later.
5.5 New Hampshire Residents: Neither the fact that a
registration statement or an application for license has been filed
under Chapter 421-B with the State of New Hampshire nor the fact that
a security is effectively registered or a person is licensed in the
State of New Hampshire constitutes a finding by the Secretary of State
that any document filed under RSA 421-B is true, complete and not
misleading. Neither any such fact nor the fact that an exemption or
exception is available for a security or a transaction means that the
Secretary of State has passed in any way upon the merits or
qualification of, or recommended or given approval to, any person,
security or transaction. It is unlawful to make, or cause to be made,
to any prospective purchaser, customer or client any representation
inconsistent with the provisions of this paragraph.
5.6 Pennsylvania Residents: If a purchaser is a resident
of the Commonwealth of Pennsylvania, he acknowledges and agrees that
(a) the securities purchased by such purchaser cannot be sold for a
period of twelve (12) months from the date of purchase, except as
permitted under section 204.011 of the Pennsylvania Securities
Regulations, and (b) pursuant to section 207(M) of the Pennsylvania
Securities Act, each Pennsylvania resident who accepts an offer to
purchase securities exempted from registration under section 203(D) of
the Pennsylvania Securities Act directly from an issuer or an
affiliate of an issuer has the right to withdraw his acceptance
without incurring any liability to the seller, underwriter, if any, or
any other person within two (2) business days from the date of receipt
by the issuer of his written binding contract of purchase or, in the
case of a transaction in which there is no written binding contract of
purchase, within two (2) business days after he makes the initial
payment for the securities being offered.
6. CONFIDENTIAL INVESTOR QUESTIONNAIRE
The Subscriber represents and warrants that he, she or it
comes within each category marked below, and that for any category
marked, he or she has truthfully set forth the factual basis or reason
the Subscriber comes within that category. ALL INFORMATION IN
RESPONSE TO THIS PARAGRAPH WILL BE KEPT STRICTLY CONFIDENTIAL. The
undersigned agrees to furnish such additional information as is
reasonably necessary in order for the Fund or the Advisor to verify
the answers set forth below.
Please mark each applicable box
( ) a. The undersigned is an individual (not a
partnership, corporation, etc.) whose individual
net worth, or joint net worth with his or her
spouse, presently exceeds $ 1,000,000.
Explanation. In calculating net worth you may
include equity in personal property and real
estate, including your principal residence, cash,
short-term investments, stock and securities.
Equity in personal property and real estate should
be based on the appraised fair market value of such
property less debt secured by such property.
( ) b. The undersigned is an individual (not a partnership,
corporation, etc.) who had an income in excess of
$200,000 in each of the two most recent years, or joint
income with their spouse in excess of $300,000 in each of
those years (in each case including foreign income, tax
exempt income and full amount of capital gains and losses
but excluding any income of other family members and any
unrealized capital appreciation) and has a reasonable
expectation of reaching the same income level in the
current year.
( ) c. The undersigned is a director or executive officer of the
Fund which is issuing and selling the Shares.
( ) d. The undersigned is a bank; a savings and loan
association, insurance company, registered investment
company; registered business development company;
licensed small business investment company ("SBIC"); a
plan established and maintained by a state, its political
subdivisions, or any agency or instrumentality of a state
or its political subdivisions, for the benefit of its
employees, if such plan has total assets in excess of
$5,000,000; or an employee benefit plan within the
meaning of Title 1 of ERISA and (a) the investment
decision is made by a plan fiduciary which is either a
bank, savings and loan association, insurance company or
registered investment advisor, or (b) the plan has total
assets in excess of $5,000,000 or is a self directed plan
with investment decisions made solely by persons that are
accredited investors.
(describe entity)
( ) e. The undersigned is a business development company as
defined in section 202(a)(22) of the Investment Advisors
Act of 1940;
(describe entity)
( ) f. The undersigned is a corporation, partnership,
Massachusetts or other business trust, or a non-profit
organization within the meaning of Section 501 (c)(3) of
the Internal Revenue Code, in each case not formed for
the specific purpose of acquiring the Shares and with
total assets in excess of $5,000,000;
(describe entity)
( ) g. The undersigned is a trust with total assets in excess of
$5,000,000, not formed for the specific purpose of
acquiring the Shares, where the purchase is directed by a
"sophisticated person" as defined in Regulation
506(b)(2)(ii). Such "sophisticated person" has the
knowledge and experience in financial and business
matters to capably evaluate the merits and risks of the
prospective investment.
( ) h. The undersigned is an entity all the equity owners of
which are "accredited investors" within one or more of
the above categories. If relying upon this category
alone, each equity owner must complete and sign a
separate copy of this Confidential Investor
Questionnaire.
(describe entity)
( ) i. The undersigned is not within any of the categories above
and is therefore a nonaccredited investor.
( ) j. The undersigned is (i) an individual or company whose
subscription is for at least $500,000 or (ii) an
individual or company whose net worth at the time of
entering into such person's or company's subscription
agreement is at least $1,000,000. For this purpose, the
term "company" generally means a corporation,
partnership, association, joint-stock company, trust, or
any organized group of persons (which may include a
contractual arrangement), whether incorporated or not, or
any receiver, trustee in bankruptcy or liquidating agent
for any of the foregoing. However, the term "company"
does not include a registered investment company, a
business development company as defined in Section
202(a)(22) of the Investment Advisors Act of 1940 (which
would include a registered business development company)
or any "company" which would be required to register as
an investment company except by virtue of the operation
of Section 3(c)(1) of the Investment Company Act of 1940
unless each of such company's equity holders satisfies
the requirements of clause (i) or (ii) above (taking into
account the definition of company used in such clauses).
THE UNDERSIGNED IS INFORMED OF THE SIGNIFICANCE OF THE FOREGOING
REPRESENTATIONS, AND THEY ARE MADE WITH THE INTENTION THAT THE FUND
WILL RELY ON THEM.
7. Manner in Which Title to be Held (check one)
a. ( ) Individual Ownership*
b. ( ) Community Property
c. ( ) Joint Tenant with Right of Survivorship (both parties must sign)
d. ( ) Partnership*
e. ( ) Tenants in Common
f. ( ) Corporation*
g. ( ) Trust*
h. ( ) Other
* If Shares are being subscribed for by any person other than a
natural person, please complete Exhibit A, B or C, as applicable,
which are attached. If Shares are being subscribed for by an
individual, please complete Exhibit D, which is attached.
Capital Commitment (please fill in (a) or (b) below): The minimum
Capital Commitment is the lesser of (x) $5 million or (y) 0.83% of the
Maximum Commitments.
(a) $ million
(b) _________ % of the aggregate Capital Commitments of
the Trust, subject to a maximum of $_________
million
Name(s) Exactly as to Appear on Stock Register
Signature Signature (if purchasing jointly)
Name Typed or Printed Name Typed or Printed
Residence Address Residence Address
City. State and Zip Code City, State and Zip Code
Telephone Telephone
Facsimile Number Facsimile Number
Tax Identification or Tax Identification or
Social Security Number Social Security Number
Dated: , 199 Dated: , 199
This Subscription Agreement is agreed to and
accepted as of ________ __, 1995
BlackRock Fund Investors I
By:
Name: Wesley R. Edens
Title: Chief Operating Officer
BlackRock Financial Management L.P.
By:
Name: Ralph L. Schlosstein
Title: President
EXHIBIT A
CERTIFICATE OF PARTNERSHIP INVESTOR
CERTIFICATE OF (the "Partnership")
(Name of Partnership)
The undersigned, constituting all of the partners of the
Partnership who must consent to the proposed investment by the
Partnership hereby certify as follows:
1. That the Partnership commenced business on ____________
and was established pursuant to a Partnership Agreement dated
____________ (the "Agreement").
2. That, as the partners or managing or general partner or
partners of the Partnership, we have the authority to determine, and
have determined, (i) that the investment in, and the purchase of an
interest in BlackRock Fund Investors I is of benefit to the
Partnership and (ii) to make such investment on behalf of the
Partnership.
3. That _____________________ is authorized to execute all
necessary documents in connection with our investment in
.
IN WITNESS WHEREOF, we have executed this certificate as the
partners of the Partnership this __ day of , 199 , and
declare that it is truthful and correct.
(Name of
Partnership)
By:
Partner
By:
Partner
By:
Partner
EXHIBIT B
CERTIFICATE OF CORPORATE INVESTOR
CERTIFICATE OF (the "Corporation")
(Name of Corporation)
The undersigned, being the duly elected and acting
Secretary or Assistant Secretary of the Corporation, hereby
certifies as follows:
1. That the Corporation commenced business on
and was incorporated under the laws of the State of
____________ on ____________.
2. That the following named individuals are duly
elected officers of the Corporation, who hold the
offices set opposite their respective names and who are
duly authorized to execute any and all documents in
connection with the Corporation's investment in
, and that the signatures written
opposite their names and titles are their correct and
genuine signatures.
Name Title Signature
IN WITNESS WHEREOF, I have executed this certificate
and affixed the seal of the Corporation this ___ day of
, 199 , and declared that it is truthful and
correct.
[SEAL]
(Name of Corporation)
By:
Name:
Title:
EXHIBIT C
CERTIFICATE OF TRUST INVESTOR
CERTIFICATE OF (the "Trust")
(Name of Trust or Custodial Relationship)
The undersigned, constituting the Custodian or all of the
Trustees of the Trust, hereby certify as follows:
1. That the Trust was established pursuant to a Trust
Agreement dated ______________ (the "Agreement").
2. That the undersigned is authorized to execute, on
behalf of the Trust, any and all documents in connection with the
Trust's investment in the Fund.
IN WITNESS WHEREOF, I have executed this certificate as an
officer or Trustee of the Trust authorized to execute this
certificate this __ day of , 199 , and declare that
it is truthful and correct.
(Name of Trust or
Custodial Relationship)
By:
Name:
Title:
EXHIBIT D
CERTIFICATE OF INDIVIDUAL
CERTIFICATE OF (the "Individual")
(Name of Individual)
The undersigned hereby certifies as follows:
1. The Individual (if not using a Purchaser
Representative) has such knowledge and experience in financial
and business matters that he is capable of evaluating the merits
and risks of investing in the Shares. The aggregate amount of
the investments of the Individual in, and his commitments to, all
similar investments that are illiquid is reasonable in relation
to his net worth.
2. That the undersigned is authorized to execute on behalf
of the Individual, any and all documents in connection with the
Individual's investment in the Fund, if applicable.
IN WITNESS WHEREOF, the undersigned has executed this
certificate this day of , 199 , and
declared that it is truthful and correct.
(Name of Individual)
By:
Name:
Title:
