Common use of Payment for Services; Invoice Clause in Contracts

Payment for Services; Invoice. (a) During the term of this Agreement, MLP shall pay or reimburse Services Provider for Services provided hereunder, without duplication to any amounts payable or reimbursements for costs charged under any Operating Agreement, in an amount equal to all reasonable costs and expenses incurred by Services Provider and attributable to the provision of the Services for any Month, including (x) actual salaries, wages and employee benefits paid by Services Provider to employees and personnel of Services Provider or its Affiliates or permitted contractors in proportion to the percentage of such employee’s and personnel’s time that is dedicated to the provision of the Services in accordance with the terms and conditions of this Agreement, (y) any necessary overtime, and (z) the actual cost to maintain any licenses or authorizations necessary for Services Provider’s continued use of intellectual property in connection with the Services (“Service Charges”); provided, however, with respect to the foregoing clauses (x), (y) and (z), such amounts shall not exceed 110% of the amount identified with respect to such employee and personnel for such Month in the Budget. Notwithstanding the foregoing, except as to the Management Fee described below, no overhead under any Operating Agreement shall be charged by Services Provider or any its Affiliates, as applicable, to MLP or any of its Subsidiaries. Other than the immediately preceding limitation on overhead charges to MLP, nothing in this Agreement shall amend or otherwise modify the terms of the Operating Agreements. For the avoidance of doubt, Service Charges shall exclude (except as specifically set forth below in this Section 3.2(a)) (i) any costs, expenses and liabilities of Services Provider relating to its overhead, severance expenses to the extent above the Retention and Severance Cap (as defined below), discretionary bonus payments and taxes assessed against Services Provider; (ii) any increase or change to the amounts that Services Provider pays directly or indirectly to its or its Affiliates’ employees and personnel, including salary increases, or any increases to bonuses or benefits paid or incurred by Services Provider; (iii) indirect costs and expenses incurred by any Affiliate of Services Provider that are not Service Charges and reflected in the Budget; (iv) other than the Management Fee described below, overhead charged under any Operating Agreement; and (v) any other normal and customary expenses and costs of Services Provider and its Affiliates that are classified as Services Provider’s overhead costs, including Third Party consulting fees, rent, supplies, travel and entertainment, insurance, accounting and legal fees of Services Provider to the extent above the Professional Fees Cap, Third Party engineering and broker fees (collectively, “Excluded Charges”). Services Provider (or its Affiliates) shall be solely responsible for the payment of all Excluded Charges. If any material out-of-pocket costs and expenses incurred by Services Provider in relation to the Services are anticipated to exceed amounts set forth therefor in the Budget, Services Provider will submit an approval request to MLP prior to spending the out-of-pocket expenses (such approval not to be unreasonably withheld). In addition to the Service Charges, MLP shall pay or reimburse Services Provider for (x) a management fee equal to eight percent (8%) of the sum of (A) the Service Charges, plus (B) the charges to MLP by Services Provider under the Operating Agreements (the “Management Fee”), which Management Fee shall be paid by MLP to Services Provider on or before December 1, 2020, together with interest on the Management Fee at a per annum rate equal to six percent (6%) from the date each such Service Charge was due until December 1, 2020, and twelve percent (12%) thereafter until such Management Fee is paid; (y) Services Provider’s reasonable out of pocket costs in connection with the recapitalization transactions described in the recitals of this Agreement, including professional fees of its external legal, accounting and financial advisors, in an aggregate amount not to exceed $100,000 (the “Professional Fees Cap”), (z) retention and severance payments made to employees of Services Provider necessary to provide the Services on behalf of MLP in an aggregate amount not to exceed $155,000 (the “Retention and Severance Cap”); provided, however, to the extent Services Provider is in material breach of any material covenant or obligation of Services Provider contained in this Agreement, and Services Provider fails to cure such breach within thirty (30) days after receiving written notice thereof from MLP, then MLP shall not be obligated to pay that portion of the Management Fee, or any interest thereon, that relates to such breach. (b) MLP shall pay the Service Charges and other amounts due under this Agreement and the amounts due from MLP under the Operating Agreements as incurred or otherwise as specifically set forth in this Agreement. For any other amounts due under this Agreement that are not paid as incurred or on a date otherwise specifically set forth in this Agreement, then on or before the fifteenth (15th) day following the end of each Month, Services Provider shall tender to MLP an invoice setting forth the amounts due for such prior Month (the “Invoice”). The Invoice shall include supporting documentation, information and calculations that substantiate the costs and expenses described in the Invoice, in form and detail reasonably satisfactory to MLP. MLP shall pay in full the undisputed amounts set forth in the Invoice on or before the tenth (10th) day following receipt of the Invoice by MLP (the “Due Date”); provided, however, if the Due Date is on a Saturday, Sunday or a federal holiday, the Due Date shall be the succeeding Business Day. (c) MLP may object in good faith to any Invoice (or any portion thereof) at any point up to and including the Due Date. If MLP desires to make such an objection, it must provide written notice of such objection to Services Provider with such notice describing the dispute in reasonable detail, including any alleged errors in charges and attaching written documentation to reasonably support such objection. The Parties shall work together in good faith to resolve any dispute regarding an Invoice; provided, if the Parties fail to agree on the existence or amount of any such adjustment within thirty (30) days following Services Provider’s receipt of MLP’s written notice delivered pursuant to this Section 3.2(c), the Parties may submit the dispute to an independent third-party regionally or nationally recognized auditing firm that is mutually agreeable to the Parties. The Parties shall cooperate with such auditing firm and each Party shall provide access to its books and records as may be reasonably necessary to permit a determination by such auditing firm. The resolution by such auditing firm shall be final and binding on the Parties. (d) If any undisputed amount due under an Invoice remains unpaid for more than ten (10) days following MLP’s receipt of such Invoice, Services Provider shall have the right to immediately suspend or discontinue Services hereunder until any such undisputed past-due amount is paid in full. (e) If MLP fails to pay the undisputed amount of any Invoice within ten (10) days after MLP’s receipt of such Invoice, interest on such amounts will accrue from the Due Date through, and including, the date MLP actually makes payment for the undisputed amount, at the Overdue Rate. (f) All references in this Agreement to an “undisputed amount” mean amounts that are not disputed in good faith in accordance with the procedures set forth in Section 3.2(c).

Payment for Services; Invoice. (a) During the term Term, MLP shall (i) pay Services Provider a total of $333,333.00 per Month for each Month (the “Monthly Services Fee”) for which the Services are provided pursuant to the terms of this Agreement, MLP shall pay or reimburse with such Monthly Services Provider for Services provided hereunderFee covering, without duplication to any amounts payable or reimbursements for costs charged under any Operating Agreementamong other things, in an amount equal to all reasonable costs and expenses incurred by Services Provider and attributable to the provision of the Services for any Month, including (x) actual salaries, wages and employee benefits benefits, including discretionary bonus payments with respect to the performance of the Properties, paid by Services Provider to employees and personnel of Services Provider or its Affiliates or permitted contractors in proportion to the percentage of such employee’s and personnel’s time that is dedicated to the provision of the Services in accordance with the terms and conditions of this Agreement, (y) any necessary overtime, and (z) the actual cost to maintain any licenses or authorizations necessary for Services Provider’s continued use of intellectual property in connection with the Services (“Service Charges”); provided, however, with respect to the foregoing clauses (x), (y) and (z), such amounts shall not exceed 110% of the amount identified with respect to such employee and personnel for such Month in the Budget. Notwithstanding the foregoing, except as to the Management Fee described below, no overhead under any Operating Agreement shall be charged by Services Provider or any its Affiliates, as applicable, to MLP or any of its Subsidiaries. Other than the immediately preceding limitation on overhead charges to MLP, nothing in this Agreement shall amend or otherwise modify the terms of the Operating Agreements. For the avoidance of doubt, Service Charges shall exclude (except as specifically set forth below in this Section 3.2(a)) (i) any costs, expenses and liabilities of Services Provider relating to its overhead, severance expenses to the extent above the Retention and Severance Cap (as defined below), discretionary bonus payments and taxes assessed against Services Provider; (ii) without duplication to any increase amounts payable or change to the amounts that Services Provider pays directly or indirectly to its or its Affiliates’ employees and personnel, including salary increases, or any increases to bonuses or benefits paid or incurred by Services Provider; (iii) indirect reimbursements for costs and expenses incurred by any Affiliate of Services Provider that are not Service Charges and reflected in the Budget; (iv) other than the Management Fee described below, overhead charged under any Operating Agreement; and (v) any other normal and customary expenses and costs of , reimburse Services Provider and its Affiliates that are classified as Services Provider’s overhead costs, including Third Party consulting fees, rent, supplies, travel and entertainment, insurance, accounting and legal fees of Services Provider to the extent above the Professional Fees Cap, Third Party engineering and broker fees (collectively, “Excluded Charges”). Services Provider (or its Affiliates) shall be solely responsible for the payment of all Excluded Charges. If any material out-of-pocket costs and expenses incurred by Services Provider in relation and solely and directly attributable to the provision of the Services are anticipated to exceed amounts set forth therefor in the Budget, Services Provider will submit an approval request to MLP prior to spending the out-of-pocket expenses for any Month (such approval or any portion thereof) and not to be unreasonably withheld). In addition to the otherwise Service Charges, MLP shall pay or reimburse including all amounts incurred by Services Provider in favor of Third Parties and attributable to Services Provider’s performance of the Services, together with any amounts incurred by or for the benefit of MLP (xwhether directly by MLP or by Services Provider on MLP’s behalf) a management fee but excluding normal lease operating expenses and amounts payable under Operating Agreements and Applicable Contracts (collectively, “Direct Charges”); (iii) on or prior to the expiration of ten (10) Business Days following the Effective Date, issue in favor of Services Provider Warrants to acquire Common Units of MLP, on terms consistent with that certain Term Sheet on or about the date of this Agreement and in form otherwise reasonably satisfactory to Services Provider; and (iv) upon the termination of this Agreement an amount equal to eight percent (8%) of the sum product of (A) the Service Charges, plus number of Months in which the Term was in effect and (B) the charges to MLP by Services Provider under the Operating Agreements $166,666.66 (the “Management FeeTermination Payment”), which Management Fee shall be paid by MLP to Services Provider on or before December 1, 2020, together with interest on the Management Fee at a per annum rate equal to six percent (6%) from the date each such Service Charge was due until December 1, 2020, and twelve percent (12%) thereafter until such Management Fee is paid; (y) Services Provider’s reasonable out of pocket costs in connection with the recapitalization transactions described in the recitals of this Agreement, including professional fees of its external legal, accounting and financial advisors, in an aggregate amount not to exceed $100,000 (the “Professional Fees Cap”), (z) retention and severance payments made to employees of Services Provider necessary to provide the Services on behalf of MLP in an aggregate amount not to exceed $155,000 (the “Retention and Severance Cap”); provided, however, to the extent Services Provider is in material breach of any material covenant or obligation of Services Provider contained in this Agreement, and Services Provider fails to cure such breach within thirty that (30x) days after receiving written notice thereof from MLP, then MLP shall not be obligated have no obligation to pay that portion of the Management Fee, Termination Payment in the event this Agreement is terminated by MLP in accordance with Sections 4.2(b) or any interest thereon, that relates to such breachSection 4.2(c) and (y) the Termination Payment shall not exceed $2,000,000. (b) MLP shall pay No later than five (5) days prior to the Service Charges and other amounts due under this Agreement and the amounts due from MLP under the Operating Agreements as incurred or otherwise as specifically set forth in this Agreement. For any other amounts due under this Agreement that are not paid as incurred or on a date otherwise specifically set forth in this Agreement, then on or before the fifteenth (15th) day following the end beginning of each Month, Services Provider shall tender to MLP an invoice setting forth a good-faith estimate of the amounts due Direct Charges and the Service Charges for Services provided by Services Provider to MLP for such prior Month (the “Invoice”). The Invoice shall include supporting documentation, information and good-faith estimated calculations that substantiate the costs and expenses described in the Invoice, in form and detail reasonably satisfactory to MLP. MLP shall pay in full the undisputed amounts set forth in the Invoice on or before the tenth thirtieth (10th30th) day following receipt of the Invoice by MLP (the “Due Date”); provided, however, if the Due Date is on a Saturday, Sunday or a federal holiday, the Due Date shall be the succeeding Business Day. No later than forty-five (45) days following the end of Month with respect to such Invoice, Services Provider shall tender to MLP a statement (the “True-Up Statement”) reflecting the actual Direct Charges and the Service Charges for Services provided by Services Provider to MLP for such Month and the Parties -13- shall true up the difference between the Invoice and the True-Up Statement in accordance with the following: (i) if the true-up amount is positive, MLP shall pay to Services Provider such difference, and (ii) if the true-up amount is negative, Services Provider shall credit MLP such difference. All amounts due with respect to the True-Up Statement shall be paid or credited, as applicable, within ten (10) days’ receipt by MLP of the True-Up Statement (the “True-Up Statement Due Date”). The Invoice and True Up Statement shall not include normal lease operating expenses and amounts payable under Operating Agreements and Applicable Contracts. (c) MLP may object in good faith to any Invoice or True-Up Statement (or any portion thereof) at any point up to and including the Due Date and the True-Up Statement Due Date, as applicable. If MLP desires to make such an objection, it must provide written notice of such objection to Services Provider with such notice describing the dispute in reasonable detail, including any alleged errors in charges and attaching written documentation to reasonably support such objection. The Parties shall work together in good faith to resolve any dispute regarding an Invoice; provided, if the Parties fail to agree on the existence or amount of any such adjustment within thirty (30) days following Services Provider’s receipt of MLP’s written notice delivered pursuant to this Section 3.2(c), the Parties may submit the dispute to an independent third-party regionally or nationally recognized auditing firm that is mutually agreeable to the Parties. The Parties shall cooperate with such auditing firm and each Party shall provide access to its books and records as may be reasonably necessary to permit a determination by such auditing firm. The resolution by such auditing firm shall be final and binding on the Parties. (d) If any undisputed amount due under an Invoice or True Up Statement remains unpaid for more than ten sixty (1060) days following MLP’s receipt of such InvoiceInvoice or True Up Statement, Services Provider shall have the right to immediately suspend or discontinue Services hereunder until any such undisputed past-due amount is paid in full. (e) If MLP fails to pay the undisputed amount of any Invoice or True Up Statement within ten sixty (1060) days after MLP’s receipt of such InvoiceInvoice or True Up Statement, interest on such amounts will accrue from the Due Date or the True-Up Statement Due Date, as applicable, through, and including, the date MLP actually makes payment for the undisputed amount, at the Overdue Rate. (f) All references in this Agreement to an “undisputed amount” mean amounts that are not disputed in good faith in accordance with the procedures set forth in Section 3.2(c).