EXHIBIT 10.4
[FORM OF
FEE AND INDEMNITY AGREEMENT]
This Fee and Indemnity Agreement (the "Fee and Indemnity Agreement"), dated
as of __________, 1997, is among Bankers Trust (Delaware), as Delaware Trustee
under the Amended and Restated Declaration and Agreement of Trust (the "Trust
Agreement") of even date herewith (the "Delaware Trustee"); Bankers Trust
Company, as Certificate Trustee under the Trust Agreement (the "Certificate
Trustee") and as Note Trustee under the Note Indenture hereinafter mentioned
(the "Note Trustee"); ____________________, as Note Issuer under the Note
Indenture (the "Note Issuer"); and California Infrastructure and Economic
Development Bank, as Originator under the Trust Agreement (the "Originator").
All capitalized terms used herein and not otherwise defined herein shall
have the meanings attributed to them in the Trust Agreement.
Section 1. Payment of Fees and Expenses of Certificate Trustee; Authorized
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Agents. (a) The Note Issuer hereby covenants and agrees to pay to the
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Certificate Trustee (or any successor trustee) from time to time reasonable
compensation for its services under the Trust Agreement and to reimburse it for
its reasonable expenses (including legal fees and expenses), it being understood
that the Certificate Trustee shall have no recourse against the Originator or
the Trust Property for payment of such amounts.
(b) In addition, the Note Issuer covenants and agrees to reimburse the
Certificate Trustee for any tax incurred without negligence, bad faith or
willful misconduct, on its part, arising out of or in connection with the
acceptance or administration of the Trust under the Trust Agreement (other than
any tax attributable to the Certificate Trustee's compensation for serving as
such), including any costs and expenses incurred in contesting the imposition of
any such tax.
(c) The Note Issuer further covenants and agrees to pay, or cause to be
paid, from time to time to each Authorized Agent reasonable compensation for its
services and to reimburse it for its reasonable expenses, and no Authorized
Agent shall have any recourse against the Originator or the Trust Property for
payment of such amounts. The appointment of any Authorized Agent shall be
subject to the approval of the Originator.
Section 2. Payment of Fees and Expenses of Delaware Trustee. The Note
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Issuer covenants and agrees to pay to the Delaware Trustee (or any successor
trustee) from time to
time reasonable compensation for its services under the Trust Agreement and to
reimburse it for its reasonable expenses (including legal fees and expenses), it
being understood that the Delaware Trustee shall have no recourse against the
Originator or the Trust Property for payment of such amounts.
Section 3. Indemnity. The Note Issuer hereby covenants and agrees to
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indemnify, defend and hold harmless the Delaware Trustee, the Certificate
Trustee and the Originator and any of their respective affiliates, officers,
directors, employees and agents (the "Indemnified Persons") from and against any
and all losses, claims, taxes, damages, expenses (including legal fees and
expenses) and liabilities (including liabilities under state or federal
securities laws) of any kind and nature whatsoever (collectively, "Expenses"),
to the extent that such Expenses arise out of or are imposed upon or asserted
against such Indemnified Persons with respect to the creation, operation or
termination of the Trust, the execution, delivery or performance of the Trust
Agreement or the transactions contemplated thereby, or the failure of the Note
Issuer to perform its obligations hereunder; provided, however, that the Note
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Issuer is not required to indemnify any Indemnified Person for any Expenses that
result from the willful misconduct or gross negligence of such Indemnified
Person. The obligations of the Note Issuer to indemnify the Indemnified Persons
as provided herein and in the Trust Agreement shall survive the termination of
the Trust Agreement or the resignation or removal of the Delaware Trustee or the
Certificate Trustee.
Section 4. Payment. All amounts owed by the Note Issuer to the
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Certificate Trustee, the Delaware Trustee and the Originator under the Trust
Agreement shall be paid to the Certificate Trustee, the Delaware Trustee and the
Originator, as appropriate, upon written demand, unless a fee agreement or fee
schedule has been provided to the Note Issuer in which event payment shall be
made in accordance with said agreement or schedule until the Note Issuer is
otherwise notified by the Certificate Trustee, the Delaware Trustee or the
Originator. As security for payment of such amounts, the Note Issuer hereby
irrevocably directs the Note Trustee to pay such amounts from monies on deposit
in the Collection Account as provided pursuant to Section 8.02 (d) of the Note
Indenture upon receipt of such written demand from the Certificate Trustee, the
Delaware Trustee and the Originator, as the case may be.
Section 5. Notices. Unless otherwise specifically provided herein, all
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notices, directions, consents and waivers required under the terms and
provisions of this Fee and Indemnity Agreement shall be in English and in
writing, and any such notice, direction, consent or waiver may be given by
United States mail, courier service, telegram, telex, telemessage, telecopy,
telefax, cable or facsimile (confirmed by telephone or in writing in the case of
notice by telegram, telex, telemessage, telecopy, telefax, cable or facsimile)
or any other customary means of communication, and any such notice, direction,
consent or waiver
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shall be effective when delivered, or if mailed, three days after deposit in the
United States mail with proper postage for ordinary mail prepaid,
if to the Originator, to:
California Infrastructure and Economic Development Bank
c/o California Trade and Commerce Agency
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Attention: Executive Director
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
if to the Delaware Trustee, to:
Bankers Trust (Delaware)
E.A. Delle Donne Corporate Center
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Attention: M. ▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
if to the Certificate Trustee, to:
Bankers Trust Company
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Attention: Structured Finance Group
Facsimile: ____________________
Telephone: ____________________
if to the Note Issuer, to:
____________________
Attention: ____________________
Facsimile: ____________________
Telephone: ____________________
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if to the Note Trustee, to:
Bankers Trust Company
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Attention: Structured Finance Group
Facsimile: ____________________
Telephone: ____________________
Section 6. Survival of Agreements. This Fee and Indemnity Agreement shall
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terminate upon the termination of the Trust and the payment and discharge of all
Certificates, provided, however, the agreements of the Note Issuer set forth in
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Section 3 herein shall survive the termination of this Fee and Indemnity
Agreement or the resignation or removal of the Delaware Trustee or the
Certificate Trustee.
Section 7. Counterparts. This Fee and Indemnity Agreement may be executed
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in one or more counterparts, each of which shall be an original and all of which
taken together shall constitute one and the same agreement.
Section 8. Governing Law. This Fee and Indemnity Agreement shall be
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governed by and construed in accordance with the laws of the laws of the State
of California except that the rights, duties, obligations, immunities and
standard of care of the Delaware Trustee or the Certificate Trustee shall be
governed by the laws of the State of New York.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Originator, the Delaware Trustee, the
Certificate Trustee, the Note Issuer and the Note Trustee have caused this Fee
and Indemnity Agreement to be duly executed by duly authorized officers, all as
of the day and year first above written.
CALIFORNIA INFRASTRUCTURE AND ECONOMIC
DEVELOPMENT BANK,
as Originator
By:_______________________________________
Name:__________________________________
Title:_________________________________
BANKERS TRUST (DELAWARE),
as Delaware Trustee
By:_______________________________________
Name:__________________________________
Title:_________________________________
BANKERS TRUST COMPANY,
as Certificate Trustee
By:_______________________________________
Name:__________________________________
Title:_________________________________
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
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[NOTE ISSUER],
as Note Issuer
By:_______________________________________
Name:__________________________________
Title:_________________________________
BANKERS TRUST COMPANY,
as Note Trustee
By:_______________________________________
Name:__________________________________
Title:_________________________________
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