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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,
“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
Certificate Issuer, the execution, delivery or performance of the
Declaration of Trust or the Certificate Indenture, as the case may
be, or the transactions contemplated thereby, the failure of a Note
Issuer or any other person (other than the person being
indemnified) to perform its obli
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