PAYMENT DATE.
FOR THE
AVOIDANCE OF DOUBT, EACH OF THE NET TAX BENEFIT, THE INTEREST AMOUNT, AND THE
TAX BENEFIT PAYMENT WITH RESPECT TO A GIVEN TAXABLE YEAR MAY BE A NEGATIVE
NUMBER.
NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS AGREEMENT, DISTRIBUTIONS
AND PAYMENTS MADE PURSUANT TO SECTION 5.4(F) OF THE CPE LLC AGREEMENT SHALL NOT
BE TAKEN INTO ACCOUNT IN CALCULATING AMOUNTS DUE UNDER THIS SECTION 3.01 OR ANY
OTHER PROVISION OF THIS AGREEMENT.
(C)
UPON DELIVERY OF AN EXCHANGE BASIS SCHEDULE AS DESCRIBED IN
SECTION 2.03, BUYER SHALL PAY TO RTEA AN AMOUNT EQUAL TO THE IRREDUCIBLE BASIS
AMOUNT PAYMENT, IF ANY.
(D)
WITHIN TEN (10) CALENDAR DAYS OF DECEMBER 31, MARCH 31, JUNE 30, AND
SEPTEMBER 30 OF EACH YEAR, BUYER SHALL PAY TO RTEA AN AMOUNT EQUAL TO THE
PRODUCT OF (I) THE NOTIONAL LOAN BALANCE AS OF THE FIRST DAY OF THE QUARTER
ENDING ON SUCH DATE AND (II) THE NOTIONAL INTEREST RATE.
SECTION 3.02.
NO DUPLICATIVE PAYMENTS.
IT IS INTENDED THAT THE ABOVE
PROVISIONS OF THIS AGREEMENT WILL NOT RESULT IN DUPLICATIVE PAYMENT OF ANY
AMOUNT (INCLUDING INTEREST) REQUIRED UNDER THIS AGREEMENT. IT IS ALSO
11
INTENDED THAT THE PROVISIONS OF THIS AGREEMENT PROVIDE THAT BUYER SHALL PAY TO
RTEA 85% OF THE CUMULATIVE NET REALIZED TAX BENEFIT AND INTEREST AMOUNT AND THAT
RTEA PAY TO BUYER ANY EXCESS OVER 85% OF THE CUMULATIVE NET REALIZED TAX BENEFIT
AND INTEREST AMOUNT THAT RTEA MAY HAVE RECEIVED. THE PROVISIONS OF THIS
AGREEMENT SHALL BE CONSTRUED IN THE APPROPRIATE MANNER IN ORDER TO REALIZE SUCH
INTENTIONS.
ARTICLE IV
TERMINATION AND CHANGE OF CONTROL
SECTION 4.01.
EARLY TERMINATION AND BREACH OF AGREEMENT.
(A)
SUBJECT TO SECTION 4.03, BUYER MAY TERMINATE THIS AGREEMENT AT ANY TIME
BY PAYING TO RTEA THE EARLY TERMINATION PAYMENT AFTER THE EARLY TERMINATION
PAYMENT DATE; PROVIDED, HOWEVER, THAT THIS AGREEMENT SHALL ONLY TERMINATE UPON
THE RECEIPT OF THE EARLY TERMINATION PAYMENT, AND PROVIDED, FURTHER, THAT BUYER
MAY WITHDRAW ANY NOTICE TO EXECUTE ITS TERMINATION RIGHTS UNDER THIS
SECTION 4.01(A) PRIOR TO THE EARLY TERMINATION PAYMENT DATE. UPON PAYMENT OF THE
EARLY TERMINATION PAYMENT BY BUYER, NEITHER RTEA NOR BUYER SHALL HAVE ANY
FURTHER PAYMENT OBLIGATIONS UNDER THIS AGREEMENT, OTHER THAN FOR ANY UNPAID TAX
BENEFIT PAYMENT WITH RESPECT TAXABLE YEARS ENDING ON OR BEFORE THE EARLY
TERMINATION NOTICE DATE.
(B)
IN THE EVENT THAT BUYER MATERIALLY BREACHES THIS AGREEMENT, WHETHER AS A
RESULT OF FAILURE TO MAKE ANY PAYMENT WHEN DUE, FAILURE TO HONOR ANY OTHER
MATERIAL OBLIGATION REQUIRED HEREUNDER (INCLUDING THE PROVISIONS OF
SECTION 4.04(A)(2)), BY OPERATION OF LAW AS A RESULT OF THE REJECTION OF THIS
AGREEMENT IN A CASE COMMENCED UNDER THE BANKRUPTCY CODE, OR OTHERWISE, THEN ALL
OF BUYER'S OBLIGATIONS HEREUNDER SHALL BE ACCELERATED AND SUCH OBLIGATIONS SHALL
BE CALCULATED AS IF AN EARLY TERMINATION NOTICE HAD BEEN DELIVERED ON THE DATE
OF SUCH BREACH AND SHALL INCLUDE, BUT NOT BE LIMITED TO, (1) THE EARLY
TERMINATION PAYMENT CALCULATED AS IF AN EARLY TERMINATION NOTICE HAD BEEN
DELIVERED ON