Exhibit 10.5
EXECUTION COPY
BEC FUNDING II,
LLC
AND
CEC FUNDING, LLC,
as Note issuers
THE BANK OF NEW
YORK,
in its separate capacity as
Certificate Trustee
THE BANK OF NEW YORK
(DELAWARE),
in its separate capacity as
Delaware Trustee,
MASSACHUSETTS RRB SPECIAL PURPOSE
TRUST 2005-1,
as Certificate
Issuer
and
MASSACHUSETTS DEVELOPMENT FINANCE
AGENCY
acting jointly
with
MASSACHUSETTS HEALTH AND
EDUCATIONAL FACILITIES AUTHORITY
as Settlors
FEE AND INDEMNITY
AGREEMENT
Dated as of March 1,
2005
FEE AND INDEMNITY
AGREEMENT dated as of _
March 1, 2005 (as amended or restated from time to time, the
“Agreement”), among THE BANK OF NEW YORK (DELAWARE), in
its separate capacity as Delaware Trustee (the “Delaware
Trustee”) under the Declaration of Trust (the
“Declaration of Trust”), dated as of January 26, 2005,
the MASSACHUSETTS DEVELOPMENT FINANCE AGENCY and the MASSACHUSETTS
HEALTH AND EDUCATIONAL FACILITIES AUTHORITY (collectively herein,
the “Agencies”), acting jointly pursuant to Chapter 164
of the Massachusetts Acts of 1997 (the “Statute”) as
Settlors under the Declaration of Trust, MASSACHUSETTS RRB SPECIAL
PURPOSE TRUST 2005-1, as Certificate Issuer (the “Certificate
Issuer” or the “Trust”), THE BANK OF NEW YORK, in
its separate capacity as Certificate Trustee (the
“Certificate Trustee”) under the Certificate Indenture
(the “Certificate Indenture”) of even date herewith,
BEC FUNDING II, LLC and CEC FUNDING, LLC, as Note Issuers (the
“Note Issuers” and individually, a “Note
Issuer”) under the Note Indentures (the “Note
Indentures”) of even date herewith. All capitalized terms
used herein and not otherwise defined herein shall have the
meanings attributed to them in the Certificate
Indenture.
Section 1. Payment of Fees and
Expenses of Certificate Trustee; Authorized Agents .
(a) Subject to Section 4 hereof,
each Note Issuer hereby covenants and agrees to pay to the
Certificate Trustee (or any successor trustee) from time to time
its pro rata share of the reasonable compensation for its services
under the Certificate Indenture and to reimburse it for its
reasonable expenses (including, without limitation, reasonable
legal fees and expenses and amounts owed to the Note Trustee and/or
the Delaware Trustee that have been or are to be paid by the
Certificate Trustee pursuant to Section 6.16 of the Certificate
Indenture) incurred in connection therewith, it being understood
that the Certificate Trustee shall have no recourse against the
Agencies or against the Notes or the payments thereon and proceeds
thereof, for payment of such amounts. The foregoing shall not
adversely affect the right of the Certificate Trustee to receive
payment of such amounts from amounts on deposit in the Collection
Account (as defined in the related Note Indenture) in the
priorities described in Section 8.02 of the related Note Indenture.
The Note Issuers’ obligations to make payments of such
amounts to the Certificate Trustee shall be subject to the
priorities set forth in Section 8.02 of the Note Indentures. For
purposes of this Agreement, the term “pro rata share”
shall mean amounts incurred directly on behalf of a Note Issuer
(e.g. expenses owed to the BEC Note Trustee by the BEC Note Issuer
and paid by the Certificate Trustee, shall be an expense of that
Note Issuer), and amounts that are not directly allocable to a
particular Note Issuer (e.g. the reasonable compensation of the
Certificate Trustee) shall be allocated to the Note Issuers in
proportion to the original principal amount of the Notes of each
Note Issuer.
(b) Subject to Section 4 hereof,
each Note Issuer further covenants and agrees to pay, or cause to
be paid, from time to time to each Authorized Agent its pro rata
share of the reasonable compensation for its services and to
reimburse it for its expenses incurred in connection with such
service, it being understood that no Authorized Agent shall have
any recourse against the Agencies or against the Notes or the
payments thereon and proceeds thereof, for payment of such amounts.
The appointment of any Authorized Agent shall be subject to the
approval of the Agencies and the Note Issuers.
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(c) In addition, subject to Section
4 hereto, each Note Issuer covenants and agrees to reimburse the
Certificate Trustee its pro rata share for any tax incurred other
than through gross negligence, bad faith or willful misconduct on
the part of the Certificate Trustee, arising out of or in
connection with the acceptance or administration of the Trust
Property under the Certificate Indenture (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.
(d) Notwithstanding anything herein
to the contrary, if the Certificate Trustee shall have entered into
a fee agreement in writing with the Certificate Issuer with respect
to the Certificate Trustee’s compensation for services under
the Certificate Indenture, the terms of such fee agreement shall
control and the provisions of this Agreement shall not entitle the
Certificate Trustee to greater compensation than that due and owing
pursuant to such fee agreement.
Section 2. Payment of Fees and
Expenses of Delaware Trustee .
(a) Each Note Issuer covenants and
agrees to pay to the Delaware Trustee (or any successor trustee)
from time to time its pro rata share of the reasonable compensation
for the Delaware Trustee’s services under the Declaration of
Trust and the Certificate Indenture and to reimburse the Delaware
Trustee for its pro rata share of the reasonable expenses
(including, without limitation, reasonable legal fees and expenses)
incurred in connection therewith, it being understood that the
Delaware Trustee shall have no recourse against the Agencies or
against the Notes or the payments thereon and proceeds thereof, for
payment of such amounts. Each Note Issuers’ obligations to
make payments of such amounts to the Delaware Trustee shall be
subject to the priorities set forth in Section 8.02 of the Note
Indentures.
(b) In addition, subject to Section
4 hereof, each Note Issuer covenants and agrees to reimburse the
Delaware Trustee for its pro rata share of any tax incurred other
than through gross negligence, bad faith or willful misconduct on
the part of the Delaware Trustee, arising out of or in connection
with the acceptant or administration of the Trust Property under
the Declaration of Trust (other than any tax attributable to the
Delaware Trustee’s compensation for serving as such),
including any costs and expenses incurred in contesting the
imposition of any such tax.
(c) Notwithstanding anything herein
to the contrary, if the Delaware Trustee shall have entered into a
fee agreement in writing with the Certificate Issuer with respect
to its compensation for services under the Declaration of Trust and
the Certificate Indenture, the terms of such other fee agreement
shall control and the provisions of this Agreement shall not
entitle the Delaware Trustee to greater compensation than that due
and owing pursuant to such fee agreement.
Section 3. Indemnity and
Contribution .
(a) Each Note Issuer hereby
covenants and agrees to indemnify, defend and hold harmless the
Delaware Trustee, the Certificate Trustee, the Certificate holders,
the Trust, the Agencies and any of their respective affiliates,
officers, directors, employees and agents (the “Indemnified
Persons”) from and against the Note Issuer’s pro rata
share of any and all losses, claims, actions, suits, taxes,
damages, expenses (including, without limitation, legal fees and
expenses) and liabilities (including liabilities under state or
federal securities laws) of any kind
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and nature whatsoever (collectively,
“Expe
