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Exhibit 10.5
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BEC FUNDING LLC,
AS NOTE ISSUER
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
AND
MASSACHUSETTS DEVELOPMENT FINANCE AGENCY
ACTING JOINTLY WITH
MASSACHUSETTS HEALTH AND EDUCATIONAL FACILITIES AUTHORITY
AS SETTLORS
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FEE AND INDEMNITY AGREEMENT
DATED AS OF [ ], 1999
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FEE AND INDEMNITY AGREEMENT dated as of [ ], 1999 (as amended or
restated from time to time, the "Agreement"), between 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 [ ], 1999, 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, 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, and BEC Funding LLC, as Note Issuer (the "Note Issuer") under the
Note Indenture (the "Note Indenture") 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, the Note Issuer hereby covenants and
agrees to pay to the Certificate Trustee (or any successor trustee) from time to
time reasonable compensation for its services under the Certificate Indenture
and to reimburse it for its expenses (including, without limitation, reasonable
legal fees and expenses) incurred in connection therewith, it being understood
that the Certificate Trustee shall have no recourse against the Agencies or the
Trust Property for payment of such amounts.
(b) Subject to Section 4 hereof, 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 expenses
incurred in connection with such service, and no Authorized Agent shall have any
recourse against the Agencies or the Trust Property for payment of such amounts.
The appointment of any Authorized Agent shall be subject to the approval of the
Agencies and the Note Issuer.
(c) 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) The Note 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 Declaration of Trust and the Certificate Indenture and to
reimburse it for its 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 the Trust Property for payment of such amounts.
(b) In addition, subject to Section 4 hereof, the Note Issuer covenants
and agrees to reimburse the Delaware Trustee for any tax incurred other than
through gross negligence, bad
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faith or willful misconduct on the part of the Delaware Trustee, arising out of
or in connection with the acceptance 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; CONTRIBUTION.
(a) The Note Issuer hereby covenants and agrees to indemnify, defend
and hold harmless the Delaware Trustee, the Certificate Trustee, the Agencies
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, without limitation, 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 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, or the failure of the Note Issuer or any
other person (other than the person being indemnified) to perform its
obligations hereunder; PROVIDED, HOWEVER, that the Note 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 shall survive the termination of the Declaration of Trust, the
termination, satisfaction or discharge of the Certificate Indenture and the
resignation or removal of the Delaware Trustee or the Certificate Trustee.
(b) [Contribution language to come.]
Section 4. PAYMENT. All amounts owed by the Note Issuer to the
Certificate Trustee, the Delaware Trustee, any Authorized Agent or the Agencies
under the Declaration of Trust or the Certificate Indenture, as the case may be,
shall be paid to the Certificate Trustee, the Delaware Trustee, any Authorized
Agent or the Agencies, as appropriate, pursuant to the Declaration of Trust or
the Certificate Indenture, as the case may be, or, if a fee agreement or fee
schedule has been provided to the Note Issuer, 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, such Authorized Agent
or such Agency; PROVIDED, HOWEVER, that notwithstanding anything to the contrary
in this Agreement or in any fee agreement or fee schedule, not later than 30
days following the selection of a successor Delaware Trustee pursuant to the
provisions of Section 4.7 of the Declaration of Trust, the Note Issuer shall pay
to the appropriate parties all amounts described in this Section 4 which have
accrued through the date of selection of such successor Delaware Trustee; and,
PROVIDED, FURTHER, that notwithstanding anything to the contrary in this
Agreement or in any fee agreement or fee schedule, each of the parties to this
Agreement
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agrees that the Note Issuer's obligations to make payments to it shall be
subject to the priorities set forth in Section 8.02 of the Note Indenture and
the Note Issuer shall have no obligation to make any payment except to the
extent consistent with Section 8.02 of the Note Indenture. 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.
Section 5. NOTICES. Unless otherwise specifically provided herein, all
notices, directions, consents and waivers required under the terms and
provisions of this 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 shall be
effective when delivered,
if to the Agencies, to:
Massachusetts Development Finance Agency
00 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: General Counsel
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
and
Massachusetts Health and Educational Facilities Authority
00 Xxxxxx Xxxxxx
00xx Xxxxx
Xxxxxx, XX 00000
Attention: General Counsel
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
if to the Certificate Issuer, to:
The Bank of New York (Delaware), as Delaware Trustee for the
Massachusetts RRB Special Purpose Trust BEC-1
x/x Xxx Xxxx xx Xxx Xxxx
000 Xxxxxxx Xxxxxx
Xxxxx 00 Xxxx
Xxx Xxxx, XX 00000
Attention: Asset Backed Finance Unit
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
with copies to:
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Massachusetts Development Finance Agency
00 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: General Counsel
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
and
Massachusetts Health and Educational Facilities Authority
00 Xxxxxx Xxxxxx
00xx Xxxxx
Xxxxxx, XX 00000
Attention: General Counsel
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
if to the Delaware Trustee, to:
The Bank of New York (Delaware)
x/x Xxx Xxxx xx Xxx Xxxx
000 Xxxxxxx Xxxxxx
Xxxxx 00 Xxxx
Xxx Xxxx, XX 00000
Attention: Asset Backed Finance Unit
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
if to the Certificate Trustee, to:
The Bank of New York
000 Xxxxxxx Xxxxxx
Xxxxx 00 Xxxx
Xxx Xxxx, XX 00000
Attention: Asset Backed Finance Unit
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
if to the Note Issuer, to:
BEC Funding LLC
000 Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Treasurer
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
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if to the Note Trustee, to:
The Bank of New York
000 Xxxxxxx Xxxxxx
Xxxxx 00 Xxxx
Xxx Xxxx, XX 00000
Attention: Asset Backed Finance Unit
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Section 6. SURVIVAL OF AGREEMENTS. This Agreement shall terminate upon
the termination of the Certificate Issuer and the payment and discharge of all
Certificates; PROVIDED, HOWEVER, that the agreements of the Note Issuer set
forth in Section 3 hereof shall survive the termination of this Agreement or the
resignation or removal of the Delaware Trustee, the Certificate Trustee or the
Note Trustee.
Section 7. NONPETITION COVENANT. Notwithstanding any prior termination
of this Agreement, but subject to the Massachusetts Department of Transportation
and Energy's right to order the sequestration and payment of revenues arising
with respect to the Transition Property notwithstanding any bankruptcy,
reorganization or other insolvency proceedings with respect to the debtor,
pledgor or transferor of the Transition Property pursuant to the Statute, the
Agencies, the Certificate Issuer, the Delaware Trustee and the Certificate
Trustee agree that they shall not, prior to the date which is one year and one
day after the termination of the Note Indenture with respect to the Note Issuer,
acquiesce, petition or otherwise invoke or cause the Note Issuer to invoke the
process of any court or government authority for the purpose of commencing or
sustaining a case against the Note Issuer under any federal or state bankruptcy,
insolvency or similar law, appointing a receiver, liquidator, assignee, trustee,
custodian, sequestrator or other similar official of the Note Issuer or any
substantial part of the property of the Note Issuer, or ordering the winding up
of the affairs of or the liquidation of the Note Issuer.
Section 8. COUNTERPARTS. This Agreement may be executed 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 9. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS, WITHOUT REFERENCE
TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF
THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 10. NON-CONSOLIDATION. The parties hereby acknowledge and agree
that the Note Issuer and Boston Edison Company shall not be substantively
consolidated, and that Boston Edison Company shall have no liability or
obligation of any kind with respect to this Agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Agencies, the Delaware Trustee, the Certificate
Trustee and the Note Issuer have caused this Agreement to be duly executed by
duly authorized officers, all as of the day and year first above written.
MASSACHUSETTS DEVELOPMENT FINANCE
AGENCY, as a Settlor
By: ________________________________________________
Name:
Title:
MASSACHUSETTS HEALTH AND EDUCATIONAL FACILITIES
AUTHORITY, as a Settlor
By: ________________________________________________
Name:
Title:
THE BANK OF NEW YORK (DELAWARE),
in its separate capacity as Delaware Trustee
By: ________________________________________________
Name:
Title:
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
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THE BANK OF NEW YORK,
in its separate capacity as Certificate Trustee
By: ________________________________________________
Name:
Title:
BEC FUNDING LLC,
as Note Issuer
By: ________________________________________________
Name:
Title:
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