STRUCTURING FEE AGREEMENT

Exhibit (h)(7)

STRUCTURING FEE AGREEMENT (the “Agreement”), dated as of —, 2012, by and among Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (“Xxxxxxx Xxxxx”) and Xxxx Xxxxx Partners Fund Advisor, LLC (the “Investment Adviser”).

WHEREAS, ClearBridge Energy MLP Total Return Fund Inc. (the “Fund”) is a newly organized, non-diversified, closed-end management investment company registered under the Investment Company Act of 1940, as amended (the “1940 Act”), and its shares of common stock (“Common Stock”) are registered under the Securities Act of 1933, as amended;

WHEREAS, the Fund and the Investment Adviser have entered into an underwriting agreement (the “Underwriting Agreement”), dated —, 2012, with Xxxxxxx Xxxxx and the other underwriters named therein (the “Underwriters”);

WHEREAS, the Investment Adviser is the investment manager of the Fund;

WHEREAS, Xxxxxxx Xxxxx is acting as a lead underwriter in an offering of the Common Stock, made under the terms of the Fund’s prospectus dated — , 2012 (the “Prospectus”); and

WHEREAS, the Investment Adviser desires to provide a structuring fee to Xxxxxxx Xxxxx for providing the advice and services described below;

NOW, THEREFORE, in consideration of the mutual terms and conditions set forth below, the parties hereto agree as follows:

In consideration of Xxxxxxx Xxxxx’x providing advice relating to the structure and design and the organization of the Fund as well as services related to the sale and distribution of the Common Stock, the Investment Adviser shall pay Xxxxxxx Xxxxx an aggregate fee equal to __% of the total price to the public of the Common Stock issued by the Fund sold by Xxxxxxx Xxxxx pursuant to the Prospectus (including all Underwritten Securities and Option Securities as such terms are described in the Underwriting Agreement) (the “Fee”). The Fee shall be paid on the Closing Date (as defined in the Underwriting Agreement) in an aggregate amount equal to __% of the total price to the public of the shares of Common Stock issued by the Fund sold by Xxxxxxx Xxxxx, or as otherwise agreed to by the parties. The sum total of all compensation to or reimbursement of the Underwriters in connection with the offering, including sales load and all forms of additional compensation, shall not exceed [ ]% of the total price of the shares of Common Stock sold in the offering. In the event the offering does not proceed, Xxxxxxx Xxxxx will not receive any fees under this Agreement; however, for the avoidance of doubt, accountable expenses actually incurred may be payable to Xxxxxxx Xxxxx pursuant to the Underwriting Agreement.

2.	Nothing herein shall be construed as prohibiting Xxxxxxx Xxxxx or its affiliates from providing similar or other services to any other clients (including other registered investment companies or other investment advisers).

The Investment Adviser acknowledges that Xxxxxxx Xxxxx did not provide and is not providing any advice hereunder as to the value of securities or regarding the advisability of purchasing or selling any securities for the Fund’s portfolio. No provision of this Agreement shall be considered as creating, nor shall any provision create, any obligation on the part of Xxxxxxx Xxxxx, and Xxxxxxx Xxxxx is not hereby agreeing, to: (i) furnish any advice or make any recommendations regarding the purchase or sale of portfolio securities or (ii) render any opinions, valuations or

recommendations of any kind or to perform any such similar services in connection with acting as lead underwriter in an offering of the Common Stock.

4.	This Agreement shall terminate upon the payment of the entire amount of the Fee, as specified in Paragraph 1 hereof.

The Investment Adviser will xxxxxxx Xxxxxxx Xxxxx with such information as Xxxxxxx Xxxxx believes appropriate to its assignment hereunder (all such information so furnished being the “Information”). The Investment Adviser recognizes and confirms that Xxxxxxx Xxxxx (a) has used and relied primarily on the Information and on information available from generally recognized public sources in performing the services contemplated by this Agreement without having independently verified the same and (b) does not assume responsibility for the accuracy or completeness of the Information and such other information. To the best of the Investment Adviser’s knowledge, the Information furnished by the Investment Adviser, when delivered, was true and correct in all material respects and did not contain any material misstatement of fact or omit to state any material fact necessary to make the statements contained therein not misleading. The Investment Adviser will promptly notify Xxxxxxx Xxxxx if it learns of any material inaccuracy or misstatement in, or material omission from, any Information delivered to Xxxxxxx Xxxxx.

The Investment Adviser agrees that Xxxxxxx Xxxxx shall have no liability to the Investment Adviser or the Fund for any act or omission to act by Xxxxxxx Xxxxx in the course of its performance under this Agreement, in the absence of gross negligence or willful misconduct on the part of Xxxxxxx Xxxxx. The Investment Adviser agrees to the terms set forth in the Indemnification Agreement attached hereto, the provisions of which are incorporated herein by reference and shall survive the termination, expiration or supersession of this Agreement.

7.	This Agreement and any claim, counterclaim or dispute of any kind or nature whatsoever arising out of or in any way relating to this Agreement (“Claim”) shall be governed by and construed in accordance with the laws of the State of New York.

No Claim may be commenced, prosecuted or continued in any court other than the courts of the State of New York located in the City and County of New York or in the United States District Court for the Southern District of New York, which courts shall have exclusive jurisdiction over the adjudication of such matters, and the Fund, the Investment Adviser and Xxxxxxx Xxxxx consent to the jurisdiction of such courts and personal service with respect thereto. Each of Xxxxxxx Xxxxx and the Investment Adviser waives all right to trial by jury in any proceeding (whether based upon contract, tort or otherwise) in any way arising out of or relating to this Agreement. Each Adviser agrees that a final judgment in any proceeding or counterclaim brought in any such court shall be conclusive and binding upon that Adviser and may be enforced in any other courts to the jurisdiction of which the Adviser is or may be subject, by suit upon such judgment.

9.	This Agreement may not be assigned by any party without the prior written consent of the other party.

10.

This Agreement (including the attached Indemnification Agreement) embodies the entire agreement and understanding between the parties hereto and supersedes all prior agreements and understandings relating to the subject matter hereof. If any provision of this Agreement is determined to be invalid or unenforceable in any respect, such determination will not affect such provision in any other respect or any other provision of this Agreement, which will remain in full force and effect. This Agreement may not be amended or otherwise modified or waived except by an instrument in writing signed by Xxxxxxx Xxxxx and the Investment Adviser.

11.	All notices required or permitted to be sent under this Agreement shall be sent, if to the Investment Adviser:

Xxxx Xxxxx Partners Fund Advisor, LLC

000 Xxxxxx Xxxxxx, 00xx Xxxxx

Xxx Xxxx, Xxx Xxxx 00000

Attention: General Counsel

or if to Xxxxxxx Xxxxx:

Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated

Xxx Xxxxxx Xxxx

Xxx Xxxx, Xxx Xxxx 00000

Attention: Xxxxxx Xxxxxx

or such other name or address as may be given in writing to the other party. Any notice shall be deemed to be given or received on the third day after deposit in the U.S. mail with certified postage prepaid or when actually received, whether by hand, express delivery service or facsimile electronic transmission, whichever is earlier.

12.	This Agreement may be executed in separate counterparts, each of which is deemed to be an original and all of which taken together constitute one and the same agreement.

[signatures on following page]

IN WITNESS WHEREOF, the parties hereto have duly executed this Structuring Fee Agreement as of the date first above written.

XXXX XXXXX PARTNERS FUND ADVISOR, LLC


By:
		Name:
		Title:

XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED


By:
		Name:
		Title:

Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated Indemnification Agreement

—, 2012

Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated

Xxx Xxxxxx Xxxx

Xxx Xxxx, Xxx Xxxx 00000

Ladies and Gentlemen:

In connection with the engagement of Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (“Xxxxxxx Xxxxx”) to advise and assist the undersigned (together with its affiliates and subsidiaries, the “Company”) with the matters set forth in the Structuring Fee Agreement dated —, 2012, between the Company and Xxxxxxx Xxxxx (the “Agreement”), in the event that Xxxxxxx Xxxxx becomes involved in any capacity in any claim, suit, action, proceeding, investigation or inquiry (including, without limitation, any shareholder or derivative action or arbitration proceeding) (collectively, a “Proceeding”) in connection with any matter in any way relating to or referred to in the Agreement or arising out of the matters contemplated by the Agreement, the Company agrees to jointly and severally indemnify, defend and hold Xxxxxxx Xxxxx harmless to the fullest extent permitted by law, from and against any losses, claims, damages, liabilities and expenses in connection with any matter in any way relating to or referred to in the Agreement or arising out of the matters contemplated by the Agreement, except to the extent that it shall be determined by a court of competent jurisdiction in a judgment that has become final in that it is no longer subject to appeal or other review, that such losses, claims, damages, liabilities and expenses resulted solely from the gross negligence or willful misconduct of Xxxxxxx Xxxxx. In addition, in the event that Xxxxxxx Xxxxx becomes involved in any capacity in any Proceeding in connection with any matter in any way relating to or referred to in the Agreement or arising out of the matters contemplated by the Agreement, the Company shall jointly and severally reimburse Xxxxxxx Xxxxx for its legal and other expenses (including the cost of any investigation and preparation) as such expenses are incurred by Xxxxxxx Xxxxx in connection therewith, except to the extent that it shall be determined by a court of competent jurisdiction in a judgment that has become final in that it is no longer subject to appeal or other review, that such legal and other expenses resulted solely from the gross negligence or willful misconduct of Xxxxxxx Xxxxx. Promptly as reasonably practicable after receipt by Xxxxxxx Xxxxx of notice of the commencement of any Proceeding, Xxxxxxx Xxxxx will, if a claim in respect thereof is to be made under this paragraph, notify the Company in writing of the commencement thereof; but the failure to so notify the Company (i) will not relieve the Company from liability under this paragraph to the extent it is not materially prejudiced as a result thereof and (ii) in any event shall not relieve the Company from any liability which it may have otherwise than on account of this Indemnification Agreement. Counsel to Xxxxxxx Xxxxx shall be selected by Xxxxxxx Xxxxx. An indemnifying party may participate at its own expense in the defense of any such action; provided, however, that counsel to the indemnifying party shall not (except with the consent of Xxxxxxx Xxxxx) also be counsel to Xxxxxxx Xxxxx. No indemnifying party shall, without the prior written consent of the Xxxxxxx Xxxxx, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought hereunder (whether or not Xxxxxxx Xxxxx is an actual or potential party thereto), unless such settlement, compromise or consent (i) includes an unconditional release of Xxxxxxx Xxxxx from all liability arising out of such litigation, investigation or Proceeding and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of Xxxxxxx Xxxxx.

If such indemnification were not to be available for any reason, the Company agrees to contribute to the losses, claims, damages, liabilities and expenses involved (i) in the proportion appropriate to reflect the relative benefits received or sought to be received by the Company and its stockholders and affiliates

and other constituencies, on the one hand, and Xxxxxxx Xxxxx, on the other hand, in the matters contemplated by the Agreement or (ii) if (but only if and to the extent) the allocation provided for in clause (i) is for any reason held unenforceable, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) but also the relative fault of the Company and its stockholders and affiliates, on the one hand, and Xxxxxxx Xxxxx, on the other hand, as well as any other relevant equitable considerations. The Company agrees that for the purposes of this paragraph the relative benefits received, or sought to be received, by the Company and its stockholders and affiliates, on the one hand, and Xxxxxxx Xxxxx, on the other hand, of a transaction as contemplated shall be deemed to be in the same proportion that the total value received or paid or contemplated to be received or paid by the Company or its stockholders or affiliates, as the case may be, as a result of or in connection with the transaction (whether or not consummated) for which Xxxxxxx Xxxxx has been retained to perform services bears to the fees paid to Xxxxxxx Xxxxx under the Agreement; provided, that in no event shall the Company contribute less than the amount necessary to assure that Xxxxxxx Xxxxx is not liable for losses, claims, damages, liabilities and expenses in excess of the amount of fees actually received by Xxxxxxx Xxxxx pursuant to the Agreement. Relative fault shall be determined by reference to, among other things, whether any alleged untrue statement or omission or any other alleged conduct relates to information provided by the Company or other conduct by the Company (or its employees or other agents), on the one hand, or by Xxxxxxx Xxxxx, on the other hand.

The Company shall not settle any Proceeding in respect of which indemnity may be sought hereunder, whether or not Xxxxxxx Xxxxx is an actual or potential party to such Proceeding, without Xxxxxxx Xxxxx’x prior written consent. For purposes of this Indemnification Agreement, Xxxxxxx Xxxxx shall include Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, any of its affiliates, each other person, if any, controlling Xxxxxxx Xxxxx Xxxxxx, Xxxxxx & Xxxxx Incorporated or any of its affiliates, their respective officers, current and former officers, directors, employees and agents, and the successors and assigns of all of the foregoing persons. The foregoing indemnity and contribution agreement shall be in addition to any rights that any indemnified party may have at common law or otherwise.

The Company agrees that neither Xxxxxxx Xxxxx nor any of its affiliates, officers, directors, agents, employees or controlling persons shall have any liability to the Company or any person asserting claims on behalf of or in right of the Company in connection with or as a result of either Xxxxxxx Xxxxx’x engagement under the Agreement or any matter referred to in the Agreement, including, without limitation, related services and activities prior to the date of the Agreement, except to the extent that it shall be determined by a court of competent jurisdiction in a judgment that has become final in that it is no longer subject to appeal or other review that any losses, claims, damages, liabilities or expenses incurred by the Company resulted solely from the gross negligence or willful misconduct of Xxxxxxx Xxxxx in performing the services that are the subject of the Agreement.

For clarification, the parties to this Indemnification Agreement agree that the term “affiliate” as used in the definition of “Company” herein does not include any registered investment company, except for the Fund, for which the Company or any of its affiliates serves as investment adviser.

THIS INDEMNIFICATION AGREEMENT AND ANY CLAIM, COUNTERCLAIM OR DISPUTE OF ANY KIND OR NATURE WHATSOEVER ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT (“CLAIM”), DIRECTLY OR INDIRECTLY, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EXCEPT AS SET FORTH BELOW, NO CLAIM MAY BE COMMENCED, PROSECUTED OR CONTINUED IN ANY COURT OTHER THAN THE COURTS OF THE STATE OF NEW YORK LOCATED IN THE CITY AND COUNTY OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, WHICH COURTS SHALL HAVE EXCLUSIVE JURISDICTION OVER THE ADJUDICATION OF SUCH MATTERS, AND THE COMPANY AND XXXXXXX XXXXX CONSENT TO THE JURISDICTION OF SUCH

COURTS AND PERSONAL SERVICE WITH RESPECT THERETO. THE COMPANY HEREBY CONSENTS TO PERSONAL JURISDICTION, SERVICE AND VENUE IN ANY COURT IN WHICH ANY CLAIM ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT IS BROUGHT BY ANY THIRD PARTY AGAINST XXXXXXX XXXXX OR ANY INDEMNIFIED PARTY. EACH OF XXXXXXX XXXXX AND THE COMPANY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING OR CLAIM (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT. THE COMPANY AGREES THAT A FINAL JUDGMENT IN ANY PROCEEDING OR CLAIM ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT BROUGHT IN ANY SUCH COURT SHALL BE CONCLUSIVE AND BINDING UPON THE COMPANY AND MAY BE ENFORCED IN ANY OTHER COURTS TO THE JURISDICTION OF WHICH THE COMPANY IS OR MAY BE SUBJECT, BY SUIT UPON SUCH JUDGMENT.

The foregoing Indemnification Agreement shall remain in full force and effect notwithstanding any termination of Xxxxxxx Xxxxx’x engagement. This Indemnification Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same agreement.


Very truly yours,

XXXX XXXXX PARTNERS FUND ADVISOR, LLC

By:
		Name:
		Title:

Accepted and agreed to as of

the date first above written:


XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED

By
		Name:
		Title:

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STRUCTURING FEE AGREEMENT

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