GOOD STANDING UNDER THE LAWS OF THE STATE OF
DELAWARE.
(B)
PURCHASER HAS ALL REQUISITE LIMITED LIABILITY POWER AND AUTHORITY
TO ENTER INTO AND PERFORM THIS AGREEMENT AND TO CARRY OUT THE TRANSACTIONS
CONTEMPLATED HEREIN.
(C)
PURCHASER'S EXECUTION, DELIVERY AND PERFORMANCE OF THIS AGREEMENT
HAVE BEEN DULY AUTHORIZED BY, AND ARE IN ACCORDANCE WITH, ITS CERTIFICATE OF
FORMATION AND OPERATING AGREEMENT; THIS AGREEMENT HAS BEEN DULY EXECUTED AND
DELIVERED FOR IT BY THE SIGNATORY SO AUTHORIZED; AND THIS AGREEMENT CONSTITUTES
ITS LEGAL, VALID, AND BINDING OBLIGATION, ENFORCEABLE AGAINST IT IN ACCORDANCE
WITH THE TERMS HEREOF, EXCEPT AS SUCH ENFORCEABILITY MAY BE LIMITED BY
APPLICABLE BANKRUPTCY LAWS, OR BY GENERAL PRINCIPLES OF EQUITY (REGARDLESS OF
WHETHER SUCH ENFORCEMENT IS CONSIDERED IN EQUITY OR AT LAW).
ARTICLE III
PROVISION OF SERVICES
3.1
SERVICES.
(A)
MFFB SHALL PROVIDE, OR CAUSE TO
BE PROVIDED, THE SERVICES SET
FORTH ON EXHIBIT A TO THIS AGREEMENT (INDIVIDUALLY, A "SERVICE" AND
COLLECTIVELY, THE "SERVICES") TO PURCHASER, OR TO AN AFFILIATE OF PURCHASER, AS
PURCHASER MAY DIRECT, IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS
AGREEMENT, INCLUDING WITHOUT LIMITATION THE TERMS AND CONDITIONS SET FORTH ON
EXHIBIT A, DURING THE TERM (AS DEFINED BELOW).
IN THE EVENT OF ANY
INCONSISTENCY BETWEEN THE TERMS AND CONDITIONS OF THIS AGREEMENT AND THE TERMS
AND CONDITIONS OF ANY EXHIBIT HERETO, THE TERMS AND CONDITIONS OF THIS AGREEMENT
SHALL GOVERN, EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED HEREIN.
(B)
MFFB HEREBY COVENANTS, AGREES, AND WARRANTS:
(I) THAT THE
SERVICES TO BE PROVIDED BY MFFB SHALL BE PERFORMED IN A GOOD AND WORKMANLIKE
MANNER, (II) THAT THE SERVICES AND ANY REPORTS OR ADVICE PROVIDED BY MFFB WITH
RESPECT TO THE SERVICES SHALL COMPLY IN ALL MATERIAL RESPECTS WITH ALL
APPLICABLE LEGAL REQUIREMENTS, AND (III) THAT THE SERVICES SHALL COMPLY IN ALL
MATERIAL RESPECTS WITH GAAP, IF APPLICABLE.
3.2
SERVICE FEES AND EXPENSES.
(A)
IN CONSIDERATION FOR THE SERVICES PROVIDED TO PURCHASER BY MFFB
HEREUNDER AND IN ACCORDANCE HEREWITH, PURCHASER SHALL PAY, OR CAUSE TO BE PAID,
TO MFFB THE MONTHLY FEE SET FORTH IN EXHIBIT B (THE "SERVICE FEE"). IN ADDITION,
PURCHASER SHALL REIMBURSE, OR CAUSE TO BE REIMBURSED TO, MFFB FOR ALL REASONABLE
OUT-OF-POCKET EXPENSES MFFB INCURS IN THE PERFORMANCE OR PROVISION OF THE
SERVICES HEREUNDER ("EXPENSES") AS SET FORTH ON EXHIBIT A; PROVIDED, HOWEVER,
THAT MFFB SHALL OBTAIN PURCHASER'S PRIOR WRITTEN APPROVAL BEFORE INCURRING ANY
OUT-OF-POCKET EXPENSES EXCEEDING $5,000 IN THE AGGREGATE.
IN ADDITION,
PURCHASER SHALL REIMBURSE MFFB, IN ACCORDANCE WITH EXHIBIT C, FOR ANY RETENTION
PAYMENTS MADE BY MFFB TO RETAIN A EMPLOYEE LISTED ON EXHIBIT C WHO WILL PROVIDE
THE SERVICES; PROVIDED, THAT MFFB SHALL OBTAIN THE PURCHASER'S PRIOR WRITTEN
APPROVAL BEFORE AGREEING TO PAY ANY ADDITIONAL AMOUNTS OTHER THAN SET FORTH ON
EXHIBIT C; PROVIDED, FURTHER, THAT PURCHASER'S OBLIGATIONS TO REIMBURSE THE
AMOUNTS
2
SET FORTH ON EXHIBIT C SHALL BE CONTINGENT UPON SUCH EMPLOYEES STAYING TO THE
EARLIER OF (I) THE TERMINATION OF THIS AGREEMENT, (II) NINETY (90) DAYS AFTER
THE DATE HEREOF, AND (III) A DATE