Common use of Support Services Fee Clause in Contracts

Support Services Fee. (a) On or before November 15, 2021 and on or before November 15 of every Fiscal Year thereafter, Service Provider shall deliver to Owner for its approval by its board of directors, the Support Services Fee for the immediately following Fiscal Year based on Service Provider’s actual internal overhead and general and administrative costs (other than any costs included as part of the Direct G&A Costs or the Owner-Direct Billed Costs) incurred in connection with the provision of the Services in the then-current Fiscal Year (the “Proposed Support Services Fee”), together with supporting documentation therefor. Service Provider’s calculation of the Proposed Support Services Fee shall take into account equitable adjustments to reflect, among other things, the contribution, acquisition, or disposition of assets to or by Owner, including as a result of Owner’s exercise of any rights under the Purchase Rights and Restrictive Covenants Agreement, and to reflect any change in the cost of providing indirect oversight and administrative services to Owner due to changes in any applicable Law or interpretation thereof. (b) Notwithstanding the foregoing, the Parties agree that the Support Services Fee shall be as follows: (i) from the Execution Date through December 31, 2019, the Support Services Fee shall be $3,000,000; (ii) from January 1, 2020 through December 31, 2020, the Support Services Fee shall be $5,000,000; (iii) from January 1, 2021 through December 31, 2021, the Support Services Fee shall be $7,000,000; and (iv) from January 1, 2022 through the term of this Agreement, the Support Services Fee shall be $9,000,000, as may be increased by Service Provider in accordance with the principles set forth in Section 4.2(a). (c) If any component of the Proposed Support Services Fee is not approved by December 15 of the Fiscal Year in which such Proposed Support Services Fee is delivered (such component, the “Disputed Item”), Service Provider may submit resolution of the Disputed Item to the Expert. Each Party shall use commercially reasonable efforts to cause the Expert to render a decision in accordance with this Section 4.2(c) along with a statement of reasons therefor within ten (10) Business Days after the submission of the Disputed Item to the Expert. No Party shall communicate with the Expert without the prior consent of the other Parties. The Expert shall act as an expert and not an arbitrator. Save in the case of fraud or manifest error or bias, (i) the decision of the Expert shall be final and binding upon the Parties, shall be non-appealable and shall constitute an award that is final, binding, and, save in the case of fraud or manifest error or bias, non-appealable and upon which a judgment may be entered by a court having jurisdiction and (ii) the Proposed Support Services Fee as revised to reflect the decision of the Expert with respect to the Disputed Item shall be final and binding upon the Parties and shall constitute the Support Services Fee for the subject Fiscal Year (with effect from January 1 of such subject Fiscal Year). The Expert shall review only the Disputed Item submitted to it and the determination of such Disputed Item shall be made in accordance with the procedures set forth in this Section 4.2(c); provided that the Expert’s resolution of a Disputed Item shall not be less than the lesser amount claimed for such Disputed Item and shall not be greater than the greater amount claimed for such Disputed Item. Owner, on the one hand, and Service Provider, on the other hand, shall bear all costs and expenses incurred by such Party in connection with such expert determination, except that the fees and expenses of the Expert hereunder shall be borne based upon the inverse proportion of the dollar amount of the Disputed Item resolved in favor of such Party (i.e., so that the prevailing Party bears a lesser amount of such fees and expenses). (d) During the pendency of any Disputed Item and subject to the procedure set forth in Section 4.2(c), (i) any non-disputed component of the Proposed Support Services Fee shall be factored into the Support Services Fee and (ii) any component of the Proposed Services Fee that is a Disputed Item shall be factored into the Support Services Fee as the previous year’s amount of such component plus an amount equal to 5% of the previous year’s amount.