EBS Building, LLC Exhibit 10.39 to Form 10-QSB






Exhibit 10.39






FEE AND INDEMNITY
AGREEMENT 



        This
Fee Agreement (this “Agreement”) is made as of April 15, 2005 (the “Closing
Date”), by and between Wilmington Trust Company, a Delaware banking corporation
(“Wilmington Trust”), and EBS Liquidating Trust, a Delaware statutory trust (the
“Trust”). 



W I T N E S S E T H 



        WHEREAS,
pursuant to a Trust Agreement, dated as of April 15, 2005 (the “Trust
Agreement”), between among EBS Building L.L.C., FTI Consulting Inc. and Wilmington
Trust, Wilmington Trust will act as resident trustee (the “Trustee”) of the
Trust; 



        WHEREAS,
pursuant to Section 5.2 of the Trust Agreement, Wilmington Trust is entitled to
compensation for its services as Trustee; 



        WHEREAS,
Wilmington Trust and the Trust desire to set forth with greater particularity the specific
agreement as to the compensation owing to Wilmington Trust pursuant to the Trust
Agreement; 



        NOW,
THEREFORE, for good and valuable consideration, the parties hereto hereby agree as
follows. 



             1.    
          The compensation due and owing to Wilmington Trust pursuant to Section 5.2 of
          the Trust Agreement shall be as follows: 


		a.	Initial Fee:	 	$     3,500.00	
		b.	Annual Administration Fee (paid annually in advance):	 	$     2,500.00	
		c.	Closing Attendance Fee:
(ONLY IF INCURRED)	 	$     2,000.00	






        (The
Closing Attendance Fee is payable only if incurred. Such fee is incurred for attendance by
a representative of Wilmington Trust at closing. For closings other than in New York City
or Washington D.C., additional expenses may apply.) 


		d.	Tax Preparation Fee: (ONLY IF INCURRED)	 	to be determined	
		e.	Wire charge (per transfer):  (ONLY IF INCURRED):	 	 	
			Outgoing:        $25.00	 	 	
			Incoming:        $10.00	 	 	
			*Transfers made by associate banks may result in additional wire charges.	 	 	
		f.	Statutory Trust Cancellation Fee:	 	$     1,000.00	


















The Statutory Trust  Cancellation Fee will be imposed if the trust is a statutory trust requiring  cancellation
of the  certificate of trust with the Delaware  Secretary of State's Office.  The Statutory Trust  Cancellation
Fee includes  expenses in connection with the  preparation  and filing of the certificate of cancellation  with
the  Delaware  Secretary  of  State's  Office.  If  the  transaction  terminates  in  a  manner  that  involves
participation  by counsel,  legal fees and expenses in connection  with the  cancellation  are  additional  and
billed separately.


		g.	Extraordinary Termination Fee:	 	$     3,000.00	




(Wilmington  Trust reserves the right to charge a fee (the  "Termination  Fee" as referenced above) relating to
the  termination of the Trust and the final  distribution  of the property held by the Trust.  The  Termination
Fee will be  imposed if the  transaction  terminates  in a manner  other than as  outlined  in the  transaction
documents  and,  as a  result,  such  termination  involves  extraordinary  involvement  by  Wilmington  Trust.
Expenses in connection  with the  preparation  and filing of a certificate  of  cancellation  with the Delaware
Secretary of State's Office are additional and billed separately.)



        2.     
In the event of a  substantive  change in the nature of the Trustee's  duties,  and in any event after
the  expiration of three years from the Closing Date,  Wilmington  Trust reserves the right to adjust its fees.
Such fees to be agreed between the parties hereto.



        3.     
Wilmington  Trust  requires that the Initial Fee, the first year's Annual  Administration  Fee and the
Closing  Attendance  Fee (if  incurred) be paid on the Closing Date by wire  transfer  per the  following  wire
transfer instructions:


	  	Wilmington Trust Company

                  Wilmington, Delaware

                  ABA No. 031100092

                  For credit to the account of

                  Corporate Trust Administration - Income Account

                  Account No. 069934-000

                  Attn:  Joseph B. Feil

                  Reference: Trustee Fees and Expenses

                  Transaction Name:  EBS Liquidating Trust 






Thereafter, the Annual Administration
Fee is due and payable as contemplated in Section 1(b). All fees are non-refundable and
will not be pro rated in the event of an early termination of the Trust. 



             4.     
          Out of pocket expenses (including outside counsel’s fees and expenses in
          connection with the closing and in connection with any post-closing matters) are
          additional and are billed separately. Details with respect to counsel fees are
          coordinated separately with counsel. 



             5.     
          Invoices should be sent to the Trust at its address set forth below, or at such
          other address as such party shall hereafter furnish in writing: 


	  	EBS Liquidating Trust





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	  	c/o FTI Consulting

                  1201 W. Peachtree St., Suite 500

                  Atlanta, GA 30309

                  Attn:  Keith F. Cooper

                  Phone:  (404) 460-6265

                  Facsimile:  (404) 460-6230

                  E-mail:  keith.cooper@fticonsulting.com





             6.     
          This Agreement may be executed by the parties hereto in separate counterparts,
          each of which when so executed and delivered shall be an original, but all of
          such counterparts shall together constitute but one and the same Agreement. 



             7.     
          No waiver, modification or amendment of this Agreement shall be valid unless
          executed in writing by the parties hereto. 



             8.     
          This Agreement shall be governed by and construed in accordance with the laws of
          the State of Delaware, without regard to conflicts of laws principles. 



             9.     
          Capitalized terms used herein and not otherwise defined shall have the meanings
          assigned such terms in the Trust Agreement. 



             10.     
          In the exercise or administration of its obligations under the Trust Agreement,
          Wilmington Trust (a) may, at the expense of the Trust, consult with counsel,
          accountants, advisors, agents and other experts and shall not be liable for
          anything done, suffered or omitted in good faith by it in accordance with the
          advice or opinion of any such person and (b) may act directly or, at the expense
          of the Trust, through agents or attorneys, and Wilmington Trust shall not be
          liable for the default or misconduct of such agents or attorneys if such agents
          or attorneys shall have been selected in good faith. 



             11.     
          To the extent not otherwise paid to Wilmington Trust by any other person within
          30 days of a request for payment thereof, the Trust hereby agrees to (a)
          compensate Wilmington Trust for its services hereunder as set forth herein, (b)
          reimburse Wilmington Trust for all reasonable expenses (including reasonable
          fees and expenses of counsel, agents and other experts) and (c) indemnify,
          defend and hold harmless Wilmington Trust, and any of the officers, directors,
          employees and agents of Wilmington Trust (collectively, the “Indemnified
          Persons”) from and against any and all losses, damages, liabilities,
          claims, actions, suits, costs, expenses, disbursements (including reasonable
          fees and expenses of its counsel, agents and other experts), taxes and penalties
          of any kind and nature whatsoever (collectively, “Expenses”), to the
          extent that such Expenses arise out of or are imposed upon or asserted at any
          time against such Indemnified Person with respect to the performance of the
          Trust Agreement, the creation, operation or termination of the obligations and
          rights thereunder or the transactions contemplated thereby, except to the extent
          that such Expenses arise out of or result from (i) Wilmington Trust’s own
          willful misconduct, bad faith or gross negligence, (ii) the inaccuracy of any of
          Wilmington Trust’s representations or warranties contained in the Trust
          Agreement, (iii) taxes based on or measured by any fees, commissions or
          compensation received by Wilmington Trust for acting as Trustee, and (iv)
          Wilmington Trust’s failure to use reasonable care to receive, manage and
          disburse moneys actually received by it in accordance with the terms of the
          Trust 






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     Agreement. The indemnity in this Fee Agreement shall survive the
          resignation or removal of Wilmington Trust as Trustee and the termination of the
          Trust Agreement. 


[SIGNATURE PAGE FOLLOWS]



























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        IN
WITNESS WHEREOF, the parties hereto have caused this Fee Agreement to be executed by their
duly authorized officers effective as of the day first above written. 


	  	 WILMINGTON TRUST COMPANY 






	  	By: 	/s/ Michael W. Diaz 
 
	  		Name:    Michael W. Diaz 

Title:     Authorized Signer





	  	  EBS LIQUIDATING TRUST 




	  	By: 	FTI Consulting, Inc., as administrator






	  	By: 	/s/ Keith F. Cooper
 
	  		Name:    Keith F. Cooper

Title:     Senior Managing Director


















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