In Re The Marriage Of Thomas F. Green, V Gina R. Green ( 2020 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Marriage of: ) No. 80642-4-I
)
GINA RENEE GREEN, ) DIVISION ONE
)
Respondent, ) ORDER GRANTING MOTION
) FOR RECONSIDERATION IN
v. ) PART, WITHDRAWING
) OPINION, AND
THOMAS FREDERICK GREEN, ) SUBSTITUTING OPINION
)
Appellant. )
)
The respondent, Gina R. Green, filed a motion for reconsideration for the
opinion filed on March 2, 2020. The appellant filed a response. A majority of the
panel having determined that the motion should be granted as to the award of
attorney fees, and that the opinion filed on March 2, 2020 shall be withdrawn and a
substitute unpublished opinion be filed. Now, therefore, it is hereby
ORDERED that the motion for reconsideration be, and the same is,
hereby granted in part. It is further
ORDERED that the opinion filed on March 2, 2020 is withdrawn and a
substitute unpublished opinion shall be filed.
FOR THE COURT:
Judge
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Marriage of: ) No. 80642-4-I
)
GINA RENEE GREEN, ) DIVISION ONE
)
Respondent, ) UNPUBLISHED OPINION
)
v. )
)
THOMAS FREDERICK GREEN, )
)
Appellant. )
)
HAZELRIGG, J. — Thomas Green appeals a superior court’s order enforcing
a property settlement agreement pursuant to Civil Rule 2A (CR 2A). Thomas1
argues that the agreement did not accurately reflect the outcome of the parties’
negotiations conducted by letter and email. Because Thomas raised a genuine
issue of material fact as to the terms of the agreement, we reverse and remand for
further proceedings.
FACTS
Thomas and Gina Green married in 1991. Prior to and throughout their
marriage, Thomas was employed by the Washington State Department of
Transportation. Gina was responsible for raising the couple’s two children. Later,
1For clarity, Thomas and Gina Green will be referred to individually by their first names.
No disrespect is intended.
No. 80642-4-I/2
Gina worked as a paraeducator in the children’s school and as a cashier in a gas
station.
As a State employee, Thomas is entitled to retirement benefits through a
Public Employee’s Retirement System (PERS) pension plan (PERS 2). Thomas’s
pension plan accumulated $106,585.21 in assets during the marriage. The parties
separated on November 13, 2016 and Gina filed a petition for dissolution. As of
the date of separation, Thomas’s estimated monthly PERS 2 retirement benefit
was $3,350.87. The parties entered an agreed order awarding Gina maintenance
in the amount of $ 2307.27 per month.
The court scheduled a settlement conference for May 9, 2017 and a trial
date of June 13, 2017. Both parties appeared at the settlement conference,
represented by counsel. In a letter to the commissioner conducting the settlement
conference, Gina identified Thomas’s PERS 2 account as one of the disputed
assets. The letter states as follows:
Husband’s PERS Plan 2
Tom enrolled in PERS Plan 2 on November 1, 1991, and is currently
a vested member. The estimated marital benefit is $3350.87 per
month (Exhibit 15). Gina would like 50% of this benefit by creating
an interest in Tom’s account for Gina. Gina would also like to be
named the former spouse survivor beneficiary to ensure she
receives her share of the retirement.
The parties were apparently unable to reach a settlement at the conference.
Between May 31 and June 12, 2017, the parties continued to engage in written
negotiations through their attorneys. On May 31, Gina’s attorney sent Thomas’s
attorney a letter outlining a settlement offer. As for maintenance, Gina proposed
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No. 80642-4-I/3
$2,327.58 per month for eight years and $1,000.00 per month for two years after
that. As for Thomas’s retirement benefits, Gina stated as follows:
On the chart you will see several “x” markings in the parties’ columns,
which warrant clarification. Gina proposes the parties equally divide
the PERS II in addition to the notes made in the description column.
Vanessa has contacted DRS to obtain the total monthly benefit
payment the parties would divide for each of the three survivor
benefit options: 50%, 66.67% and 100%. As soon I receive the
information from DRS I will forward it to you with a proposal regarding
how to address Gina’s interest in the account and what survivor
option she proposes, if any.
(Emphasis omitted). Gina attached to the letter a chart detailing the Greens’
assets and liabilities. Under the section entitled “Investments and Other,” Gina
listed “PERS II Defined Benefit (Equally divide and create an Interest with
Survivor Benefit) $3350.87/mo.” The chart lists the date of valuation as
November 13, 2016.
Thomas’s attorney responded in a letter dated June 7 containing “an offer
of compromise.” Thomas agreed to a ten-year period of maintenance but
proposed $1,600.00 per month for eight years and then $1,000.00 for an additional
two years.
In addition to Mr. Green being agreeable with Ms. Green receiving
the family home he is agreeable with her creating an interest in his
PERS 2 account and receiving the survivor benefit as requested as
opposed to creating a separate account. As you are aware, under
the “creating an interest” option Ms. Green would receive an
increased amount of retirement pay when Mr. Green reaches
retirement age if he remains with the state and continues to make
the mandatory contributions to his pension. Mr. Green still has 20
years of work ahead of him and he has no intention of leaving his
job. If things go as planned Ms. Green would receive a benefit from
the 20 years of post-divorce efforts of Mr. Green, in addition to
receiving the survivor benefit which Mr. Green could not then provide
to any future spouse.
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No. 80642-4-I/4
(Emphasis added).
At 2:51 p.m. on June 8, Gina’s attorney responded by email as follows:
Thank you for the counter offer. This email contains a counter-offer
Gina has authorized me to make in response to the counter you sent
me yesterday.
....
Gina is [willing] to accept $2300/month in spousal maintenance for
five years, then $1800 for three years and $1000 for two years. She
cannot take less now. She has no ability to earn a higher income and
take less maintenance until she is educated and trained.
....
As for retirement, Gina proposes a 100% survivor benefit. In the
event your client returns to work and monthly retirement benefits are
suspended as a result, your client will need to pay Gina spousal
maintenance during the suspension time in a monthly amount
equivalent to what she will be losing in maintenance due to the
suspension.
She is willing to pay her own fees if we have an agreement.
I am forwarding you by separate email the DRS survivor benefit
breakdown for your review.
At 5:02 p.m. on June 8, Thomas’s attorney responded to the counteroffer:
Mr. Green is agreeable with your counter offer except that he
proposes maintenance be paid at a rate of $2,000 per month for 5
years, $1,800 per month for 3 years and $1,000 per month for an
additional 2 years. He has agreed to the requested disproportionate
division of the property, to creating an interest in his retirement
instead of creating a separate account and to the 100% survivor
benefit for your client. Each of those things are a benefit only to Ms.
Green while they are a detriment to Mr. Green.
If Ms. Green is agreeable with the above proposal this matter can be
settled and we can all enjoy our weekend a bit more. Let me know.
At 10:44 a.m. on June 9, Thomas’s attorney sent a second email:
I am writing to supplement the last counter-offer I sent over last night.
Part of the rationale in proposing the $2,000 for 5 years has to do
with the mandatory contribution Mr. Green must make to his PERS
2 account. I understand the position taken at settlement conference.
However, in light of my client’s agreement to create an interest in his
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No. 80642-4-I/5
account and to allow for the 100% survivor benefit, Ms. Green will
receive just as much benefit as Mr. Green from any future
contributions/withholdings. Additionally, he has no control over the
deduction. As such, we feel it really should be factored into the
deductions from his income.
Further, maintenance in the amount of $2,000 per month would cover
your client’s need according to the financial declaration submitted at
settlement conference, which includes a premium for health
insurance, $100 going into savings and $150+/- that she is paying
toward the daughter’s vehicle loan and insurance that should
arguably be paid by the daughter.
Finally, we feel the court would come in around 8 years for the
duration of maintenance if the matter went to trial so if were [sic] are
able to settle matters Mr. Green would be agreeing to two years of
maintenance beyond what we believe is a likely outcome at trial.
In any event I wanted to expand on the rationale submitted last night.
Hopefully we can get this thing wrapped up today.
(Emphasis added).
At 6:42 p.m. that same day, Gina’s attorney responded via email that she
was willing to accept Thomas’s June 9 counteroffer on three conditions, two of
which are relevant here.2
2. In the event Mr. Green leaves state employment for any reason
within the next 60 months, he will pay Gina within 60 days of ending
employment with the state the amount of $18,000, which is the
amount she is foregoing in spousal maintenance ($2300 - $2000 =
$300 x 60 months) in reliance on your client’s assertion that he will
remain an employee of the state and have a mandatory retirement
contribution from which Gina will benefit and which reduces his ability
to pay her $2300 per month in current maintenance for five years.
3. Mr. Green agrees not to take a lump sum withdrawal from his state
retirement upon termination from employment for any reason. He
must agree that the parties will receive monthly benefits and not a
lump sum.
If your client will agree to these conditions, we have a deal.
2 The other involved a tax refund that is not relevant to this appeal.
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No. 80642-4-I/6
At 9:52 a.m. on June 12, Thomas’s attorney responded with another
counteroffer:
As to Condition #2, Mr. Green does not intend to leave employment
with the state anytime in the next 5 years but he cannot predict the
future. At the same time he is cognizant of your client’s concern. To
more fairly address that situation he proposes that the $18,000.00
be divided by 60 months which comes out to $300 and that in the
event he leaves employment with the state during the next 5 years
he would owe a lump sum equaling $300 x (60 – the number of
months he worked after entry of the decree). Additionally, he
proposes that such a clause would kick in if he voluntarily leaves his
job or is terminated due to misconduct or the like by him, not in a
situation where the state is laying people off for budget cuts or other
reasons beyond Mr. Green’s control.
Finally, he is agreeable with Condition # 3.
At 11:59 a.m., Gina’s attorney responded:
Since Mr. Green will solely be in control of when he retires, if he
chooses not to retire at age 65, thereby prolonging Gina’s receipt of
retirement, Mr. Green will pay her monthly maintenance starting
when he turns age 65 in the amount equal to what she would
otherwise be receiving in retirement if he chose to retire at age 65.
We just want to ensure Mr. Green does not remain employed so as
to prevent Gina from getting maintenance.
I trust we have an agreement, and will await your confirmation of the
same.
At 3:43 p.m., Thomas’s attorney responded: “Mr. Green is agreeable with
last proposal made (payment of spousal maintenance in the amount Ms. Green
would have received when Mr. Green reaches age 65 in the event he decides to
work beyond the age of 65 and delay receipt of retirement [benefits]).” At 3:53
p.m., Gina’s attorney responded that she would draft a property settlement
agreement (“Agreement”) consistent with the parties’ negotiations. She requested
that the parties meet at the courthouse the following morning, the scheduled trial
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No. 80642-4-I/7
date, “to review paperwork and make any necessary changes.” The parties
notified the superior court before the close of business on June 12 that they had
reached a settlement and would not proceed to trial the following day. The court
ordered the parties to appear at 1:00 p.m. on June 13 for presentation of final
orders.
At 8:25 p.m. on June 12, Gina’s attorney sent Thomas’s attorney an email
containing a cover letter, a draft version of the Agreement, a final order of
dissolution, and findings of fact and conclusions of law. The email read:
I have attached the draft PSA for your review. Gina will be in at 8:30
a.m. tomorrow to review, so I reserve the right to make any changes
she requests consistent with the agreement, but I wanted to get it to
you for your review. I will follow up with you either way in the morning.
The Agreement and orders were all signed by both Gina and her attorney. The
cover letter instructed: “If these orders meet your approval, please also execute
where indicated.” Gina’s attorney requested that Thomas’s attorney present the
orders once signed “so neither party has to personally appear for presentation.”
The letter concluded: “Should you have any questions or concerns about the
enclosed documents, please contact me.”
The Agreement awarded maintenance to Gina in the amount of $2000.00
per month for the first five years, $1800.00 per month for years six through eight,
and $1000.00 per month for years nine and ten. The Agreement provided that
Thomas’s maintenance obligation could not be modified for any reason. The
Agreement awarded Gina a 50% share of Thomas’s entire PERS 2 retirement
account, including contributions made during the marriage as well as after the
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No. 80642-4-I/8
parties’ separation. It also awarded Gina 100% of the survivor benefit of both
community and separate contributions.
A. Division. Each party shall be awarded fifty percent (50%)
of the husband’s entire career benefit, which the parties
acknowledge and intend to include all benefits accrued prior to and
during the marriage, after the parties’ separation, after entry of the
Final Divorce Order and up to and through the time of the husband’s
final retirement.
B. Creation of the Wife’s Interest in the Husband’s Account.
The parties shall sign any and all documents necessary to create an
equal interest for the wife in the husband’s PERS Plan 2 account for
the entirety of his career. The parties acknowledge the Washington
State Department of Retirement Systems (DRS) and Washington
State law mandate the language necessary to effectuate their
agreement to create an interest for the wife.
....
C. Former Spouse Survivor Benefit. The parties intend and
agree that the wife shall be a Joint and 100% Survivor Beneficiary of
the husband’s PERS Plan 2 account as provided for by the Plan’s
Survivor Option 2 (Joint and whole allowance). When Thomas Green
(the obligor) applies for retirement, the Department shall designate
Gina Green (the obligee) as survivor beneficiary with an Option 2
survivor benefit.
Thomas’s attorney did not see the documents until the following morning,
June 13. At 10:03 a.m., he sent Gina’s attorney an email disputing her
representation of the parties’ agreement regarding the PERS 2 account. He stated
that Thomas agreed only to award Gina an equal share of the community portion
of the PERS 2 account, and that Gina’s survivor benefit would also be limited to
the community portion. He did not intend to include retirement benefits earned
after the date of separation. Nor did he intend that the maintenance payment be
non-modifiable.
In reviewing the proposed PSA there is an apparent fundamental
misunderstanding regarding the division of Mr. Green’s PERS Plan
II account. The chart attached to your letter of May 31, 2017
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No. 80642-4-I/9
referenced $3,350.87 which is the current marital benefit. As such
Mr. Green understood that to mean the request was to divide the
marital amount and that by creating an interest Ms. Green would
receive the added benefit of future COLA’s, along with any upward
adjustment to his AFC, provided there is any. He was not and is not
agreeable with Ms. Green receiving a benefit based on his entire
career which could span another 20 years. As of now Ms. Green will
be receiving an approximate 70/30 split on personal property, plus
10 years of maintenance, COLA’s on the PERS II and 100% survivor
benefit. Mr. Green would not be entitled to any of Ms. Green’s post-
divorce property and feels the same should go for Ms. Green when
it comes to his post-divorce property.
I have not heard back from Mr. Green on the remainder of the PSA
but wanted to bring this issue to your attention right away.
The parties appeared at the presentation hearing. Thomas and his attorney
refused to sign the Agreement or the final orders, arguing that the documents did
not accurately represent the parties’ agreement.
On November 7, 2017, Gina moved to enforce the Agreement pursuant to
CR 2A.3 The court granted Gina’s motion to enforce the Agreement, with the
exception of the provision regarding the non-modification of maintenance, which
the court found was not agreed to by parties. The court found that Thomas’s June
9 email evidenced Thomas’s intention to offer Gina a “future interest in his PERS
II account in exchange for lower spousal maintenance.” The court explained:
There was no mention about limiting it to the community portion of
the PERS II account, but there is language regarding future efforts
of Mr. Green and future contributions and withholdings, which is
compelling to me and convinces me that that was the agreement that
was reached.
The court denied Thomas’s motion for reconsideration. Thomas appeals.
3 In the meantime, Thomas scheduled another settlement conference for August 11, 2017.
It appears this conference was unsuccessful.
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No. 80642-4-I/10
ANALYSIS
CR 2A governs enforcement of a settlement agreement. It provides:
No agreement or consent between parties or attorneys in respect to
the proceedings in a cause, the purport of which is disputed, will be
regarded by the court unless the same shall have been made and
assented to in open court on the record, or entered in the minutes,
or unless the evidence thereof shall be in writing and subscribed by
the attorneys denying the same.
Thus, CR 2A applies when (1) the agreement was made by the parties or their
attorneys “in respect to the proceedings in a cause,” and (2) the purport of the
agreement is disputed. CR 2A; In re Marriage of Ferree, 71 Wash. App. 35, 39, 856
P.2d 706 (1993). An agreement is disputed for the purposes of CR 2A if there is
a genuine dispute over either the existence or a material term of the agreement.
In re Patterson, 93 Wash. App. 579, 583, 969 P.2d 1106 (1999)). Once the material
terms are agreed upon, a party’s remorse or second thoughts about the agreement
are insufficient to show a genuine dispute. Lavigne v. Green, 106 Wash. App. 12,
19, 23 P.3d 515 (2001).
We review the decision to enforce a settlement agreement pursuant to CR
2A de novo, similar to our review of a summary judgment order. Condon v.
Condon, 177 Wash. 2d 150, 162, 298 P.3d 86 (2013). The party moving to enforce
a settlement agreement carries the burden of proving there is no genuine dispute
as to the material terms or existence of the agreement. Id. “If the moving party
produces evidence that shows the absence of any genuine disputes, the
nonmoving party must respond with affidavits, declarations, or other evidence to
show there is a genuine issue of material fact.” Patterson, 93 Wash. App. at 584. If
the nonmoving party raises a genuine issue of material fact, a trial court abuses its
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No. 80642-4-I/11
discretion if it enforces the agreement without first resolving such issues following
an evidentiary hearing. Brinkerhoff v. Campbell, 99 Wash. App. 692, 697, 994 P.2d
911 (2000). The court must view the evidence in the light most favorable to the
nonmoving party and determine whether reasonable minds could reach but one
conclusion. Condon, 177 Wash. 2d at 162.
General principles of contract law apply to settlement agreements. Cruz v.
Chavez, 186 Wash. App. 913, 920, 347 P.3d 912 (2015). For a contract to form, the
parties must manifest their mutual assent to be bound and the terms assented to
must be sufficiently definite. Keystone Land & Dev. Co. v. Xerox Corp., 152 Wash. 2d
171, 177-78, 94 P.3d 945 (2004). Washington follows the objective manifestation
theory, in which a court determines the intent of the parties based on the objective
manifestations of the agreement rather than the parties’ subjective intent. Condon,
177 Wash. 2d at 162. However, under the context rule, extrinsic evidence relating to
the context in which a contract is made may be examined to determine the
meaning of specific words and terms. Hearst Comm’ns, Inc. v. Seattle Times Co.,
154 Wash. 2d 493, 502, 115 P.3d 262 (2005). Extrinsic evidence includes the subject
matter and objective of the contract, all the circumstances surrounding the making
of the contract, the subsequent acts and conduct of the parties to the contract, and
the reasonableness of respective interpretations advocated by the parties. Id.
An informal writing, such as letters or emails, may be “sufficient to establish
a contract even though the parties contemplate signing a more formal written
agreement” in certain circumstances. Morris v. Maks, 69 Wash. App. 865, 869, 850
P.2d 1357 (1993). In determining whether an informal writing is sufficient to
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No. 80642-4-I/12
establish a contract even though the parties contemplate signing a more formal
written agreement, Washington courts consider whether (1) the subject matter has
been agreed upon, (2) the terms are all stated in the informal writings, and (3) the
parties intended a binding agreement prior to the time of the signing and delivery
of a formal contract. Id. (citing Loewi v. Long, 76 Wash. 480, 484, 136 P. 673
(1913)).4
The main source of contention between the parties in terms of whether an
enforceable settlement agreement was reached was the treatment of Thomas’
PERS 2 retirement account. PERS 2 plan members receive as retirement benefits
two percent of the employee’s average final compensation. RCW 41.40.620.
“Average final compensation” for PERS 2 plan members is the employee’s
average compensation for the “highest consecutive sixty months of service credit
months prior to such member’s retirement, termination, or death.” RCW
41.40.010(6)(b).
A dissolution order may divide a PERS retirement account in one of two
ways. WAC 415-02-500. The account may be split into two separate accounts, or
the non-employee spouse may be awarded an interest in the employee’s account.
WAC 415-02-510; 520. In the event that an interest is created, the order may limit
the non-employee spouse’s share to a percentage of the service credit earned
4
It is arguable whether the series of letters and emails constituted a contract. Gina’s final
June 12 email informed Thomas that the Agreement was merely a draft and she was entitled to
make changes even after sending it:
I have attached the draft PSA for your review. Gina will be in at 8:30 a.m. tomorrow
to review, so I reserve the right to make any changes she requests consistent with
the agreement, but I wanted to get it to you for your review. I will follow up with you
either way in the morning.
Because the parties do not explicitly raise this issue, and it is unnecessary to the resolution of this
appeal, we do not address it.
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No. 80642-4-I/13
during the marriage. WAC 415-02-500(15); See also In re Marriage of Bulicek, 59
Wash. App. 630, 639, 800 P.2d 394 (1990) (method used by courts to calculate the
community share of a pension is by dividing the number of months of marriage by
the total months of service and multiplying that by the monthly benefit at the time
of retirement); In re Marriage of Chavez, 80 Wash. App. 432, 437, 909 P.2d 314
(1996) (“[I]ncreases in pension benefits based on a retiree’s higher salary at the
time of retirement should be included in the community share.”). Even so, the non-
employee spouse’s share will reflect any salary increases or cost of living
adjustments occurring after the marital period. See
https://www.drs.wa.gov/publications/member/multisystem/propertyDivision.htm
Considering the objective and the circumstances surrounding the formation
of the agreement, we hold that the agreement does not objectively manifest a
mutual intent that Thomas and Gina would equally share in Thomas’s career
retirement benefits. Both Gina’s pre-settlement conference letter and her initial
May 31 settlement offer assumed an expected retirement benefit of $3350.87 per
month. This was the value of Thomas’s PERS 2 account as of November 13,
2016, the date of separation, and did not include post-dissolution contributions.
This indicates that Gina was seeking an equal share of the community portion of
the PERS 2 account. At no time did Gina explicitly assert she was seeking an
equal share of Thomas’s career retirement benefits.
As did the court below, Gina points to the language in Thomas’s June 7
email, in which Thomas states: “If things go as planned Ms. Green would receive
a benefit from the 20 years of post-divorce efforts of Mr. Green, in addition to
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No. 80642-4-I/14
receiving the survivor benefit which Mr. Green could not then provide to any future
spouse.” Gina also cites Thomas’s June 9 email stating that she would “receive
just as much benefit as Mr. Green from any future contributions/withholdings.”
Gina contends that these statements show Thomas was offering her an equal
share of his career retirement benefit in exchange for lower maintenance payments
for the first five years. She argues that “[t]he only way Gina receives ‘just as much
benefit as Mr. Green’ is if she receives a benefit equal to Mr. Green’s benefit, which
is one-half of his career accumulation.”
We reject Gina’s claim. As discussed above, because the parties agreed
Gina would be granted an interest in Thomas’s account, Gina would benefit from
any salary increases or cost of living adjustments occurring after the marital period,
even if her share was derived only from the community portion of the benefits.
Moreover, the parties’ conduct demonstrates a lack of mutual assent as to
the terms. As soon as Thomas reviewed the Agreement, he realized it did not
accurately reflect his offer to Gina. This was not a case in which Thomas merely
had second thoughts about the offer. Cf. Morris, 69 Wash. App. 867-68 (court
appropriately enforced settlement agreement when one party attempted to back
out after receiving advice about negative tax consequences to the settlement);
Lavigne, 106 Wash. App. at 16 (a party’s change of mind regarding the sufficiency of
the settlement amount does not make the settlement agreement disputed within
the meaning of CR 2A).
Because the evidence viewed in the light most favorable to Thomas raises
a genuine issue of material fact as to the terms of the Agreement, the court erred
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No. 80642-4-I/15
in enforcing the agreement pursuant to CR 2A. We reverse the order granting
Gina’s motion to enforce, and remand for further proceedings.
Both parties request attorney fees pursuant to RAP 18.1 and RCW
26.09.140. In determining whether a fee award is appropriate under RCW
26.09.140, we consider both the parties’ relative ability to pay and the arguable
merit of the issues raised on appeal. In re Marriage of Fiorito, 112 Wash. App. 657,
670, 50 P.3d 298 (2002). RAP 18.1(c) requires that, where applicable law
mandates consideration of a party’s financial resources, a party requesting fees
submit a financial affidavit “no later than 10 days prior to the date the case is set
for oral argument or consideration on the merits.” Neither party timely filed a
financial affidavit as required. “An appellate court will not consider an award of
attorney fees on appeal under RAP 18.1 and RCW 26.09.140 when a party
seeking fees fails to comply with RAP 18.1(c).” In re Marriage of Crosetto, 82 Wn.
App. 545, 565–66, 918 P.2d 954 (1996). Accordingly, we deny both parties’
requests for attorney fees on appeal.5
Reversed and remanded.
WE CONCUR:
5 Consistent with this opinion, we also decline Gina’s request for attorney fees pursuant to
the fee provision of the Agreement.
15