EXHIBIT h.5
STRUCTURING FEE AGREEMENT
March __, 2004
Ladies and Gentlemen:
Reference is made to the Underwriting Agreement dated the date hereof
(the "Underwriting Agreement"), by and among Calamos Strategic Total Return Fund
(the "Fund"), Calamos Asset Management, Inc. (the "Adviser") and each of the
Underwriters named therein, with respect to the issue and sale of the Fund's
Common Shares, as described therein. Capitalized terms used herein and not
otherwise defined shall have the meanings given to them in the Underwriting
Agreement.
1. Structuring Fee. In consideration of your services in offering
ongoing advice relating to the structure and design of the Fund, as well as
advisory services with respect to the organization of the Fund and the
suitability and marketability of its securities, the Adviser shall pay a
structuring fee to you in the aggregate amount of $_______ (the "Structuring
Fee"). The Structuring Fee shall be paid on or before September __, 2004 and
shall be made by wire transfer to the order of Citigroup Global Markets Inc.
2. Term. This Agreement shall terminate upon the payment of the entire
amount of the Structuring Fee, as specified in Section 1 hereof.
3. Indemnification. The Adviser agrees to the indemnification and other
agreements set forth in the Indemnification Agreement attached hereto, the
provisions of which are incorporated herein by reference and shall survive the
termination, expiration or supersession of this Agreement.
4. Not an Investment Adviser. The Adviser acknowledges that you are not
providing any advice hereunder as to the value of securities or regarding the
advisability of purchasing or selling any securities for the Fund's portfolio.
No provision of this Agreement shall be considered as creating, nor shall any
provision create, any obligation on the part of you, and you are not agreeing
hereby, to: (i) furnish any advice or make any recommendations regarding the
purchase or sale of portfolio securities; or (ii) render any opinions,
valuations or recommendations of any kind or to perform any such similar
services.
5. Not Exclusive. Nothing herein shall be construed as prohibiting you
or your affiliates from acting as an underwriter or financial adviser or in any
other capacity for any other persons (including other registered investment
companies or other investment managers).
6. Assignment. This Agreement may not be assigned by any party without
prior written consent of the other party.
7. Amendment; Waiver. No provision of this Agreement may be amended or
waived except by an instrument in writing signed by the parties hereto.
8. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
9. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, and all of which, when taken
together, shall constitute one agreement. Delivery of an executed signature page
of this Agreement by facsimile transmission shall be effective as delivery of a
manually executed counterpart hereof.
This Agreement shall be effective as of the date first written above.
[END OF TEXT]
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CALAMOS ASSET MANAGEMENT, INC.
By: __________________________
Name:
Title:
Agreed and Accepted:
CITIGROUP GLOBAL MARKETS INC.
By: ____________________________
Name:
Title:
INDEMNIFICATION AGREEMENT
March __, 2004
Citigroup Global Markets Inc.
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Ladies and Gentlemen:
In connection with the engagement of Citigroup Global Markets Inc. (the
"Bank") to advise and assist the undersigned (together with its affiliates and
subsidiaries, referred to as the "Company") with the matters set forth in the
Structuring Fee Agreement dated March __, 2004 between the Company and the Bank
(the "Agreement"), in the event that the Bank 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 indemnify, defend and hold
the Bank 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 the Bank. In addition, in the event that the
Bank 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 will reimburse the Bank
for its legal and other expenses (including the cost of any investigation and
preparation) as such expenses are incurred by the Bank in connection therewith.
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 the Bank, 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 and other constituencies, on the one
hand, and the party entitled to contribution, on the other hand, as well as any
other relevant equitable considerations. The Company agrees that for the
purposes of this paragraph the relative benefits received, or sought to be
received, by the Company and its stockholders and affiliates, on the one hand,
and the party entitled to contribution, on the other hand, of a transaction as
contemplated shall be deemed to be in the same proportion that the total value
received or paid or contemplated to be received or paid by the Company or its
stockholders
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or affiliates and other constituencies, as the case may be, as a result of or in
connection with the transaction (whether or not consummated) for which the Bank
has been retained to perform financial services bears to the fees paid to the
Bank under the Agreement; provided, that in no event shall the Company
contribute less than the amount necessary to assure that the Bank is not liable
for losses, claims, damages, liabilities and expenses in excess of the amount of
fees actually received by the Bank pursuant to the Agreement. Relative fault
shall be determined by reference to, among other things, whether any alleged
untrue statement or omission or any other alleged conduct relates to information
provided by the Company or other conduct by the Company (or its employees or
other agents), on the one hand, or by the Bank, on the other hand. The Company
will not settle any Proceeding in respect of which indemnity may be sought
hereunder, whether or not the Bank is an actual or potential party to such
Proceeding, without the Bank's prior written consent. For purposes of this
Indemnification Agreement, the Bank shall include the Bank, any of its
affiliates, each other person, if any, controlling the Bank or any of its
affiliates, their respective officers, current and former directors, employees
and agents, 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 the Bank nor any of its affiliates,
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 the Bank's 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 the Bank in performing the services that are the subject
of the Agreement.
THIS INDEMNIFICATION AGREEMENT AND ANY CLAIM, COUNTERCLAIM OR DISPUTE
OF ANY KIND OR NATURE WHATSOEVER 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 THE BANK 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
THE BANK OR ANY INDEMNIFIED PARTY. EACH OF THE BANK AND THE COMPANY WAIVES ALL
RIGHT TO TRIAL BY JURY IN ANY PROCEEDING OR CLAIM (WHETHER BASED
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UPON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR IN ANY WAY RELATING TO THIS
AGREEMENT. THE COMPANY AGREES THAT A FINAL JUDGMENT IN ANY PROCEEDING OR CLAIM
ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT BROUGHT IN ANY SUCH
COURT SHALL BE CONCLUSIVE AND BINDING UPON THE COMPANY AND MAY BE ENFORCED IN
ANY OTHER COURTS TO THE JURISDICTION OF WHICH THE COMPANY IS OR MAY BE SUBJECT,
BY SUIT UPON SUCH JUDGMENT.
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The foregoing Indemnification Agreement shall remain in full force and
effect notwithstanding any termination of the Bank's engagement. 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,
CALAMOS ASSET MANAGEMENT, INC.
By: ______________________
Name:
Title:
Accepted and agreed to as of the date first above written:
CITIGROUP GLOBAL MARKETS INC.
By: ______________________
Name:
Title: