THE DATE OF A BREACH, AND (2) ANY TAX BENEFIT PAYMENT DUE AND
PAYABLE BUT UNPAID AS OF THE DATE OF A BREACH. NOTWITHSTANDING THE FOREGOING, IN
THE EVENT THAT BUYER MATERIALLY BREACHES THIS AGREEMENT, RTEA SHALL BE ENTITLED
TO ELECT TO RECEIVE THE AMOUNTS SET FORTH IN (1) AND (2) ABOVE OR TO SEEK
SPECIFIC PERFORMANCE OF THE TERMS HEREOF. THE PARTIES AGREE THAT THE FAILURE TO
MAKE ANY PAYMENT DUE PURSUANT TO THIS AGREEMENT WITHIN 45 CALENDAR DAYS OF THE
DATE SUCH PAYMENT IS DUE SHALL BE DEEMED TO BE A MATERIAL BREACH UNDER THIS
AGREEMENT FOR ALL PURPOSES OF THIS AGREEMENT, AND THAT IT WILL NOT BE CONSIDERED
TO BE A BREACH OF A MATERIAL OBLIGATION UNDER THIS AGREEMENT TO MAKE A PAYMENT
DUE PURSUANT TO THIS AGREEMENT WITHIN 45 CALENDAR DAYS OF THE DATE SUCH PAYMENT
IS DUE.
BUYER AND RTEA SPECIFICALLY AGREE THAT THE REMEDIES PROVIDED IN THIS
SECTION ARE NOT INTENDED AS A PENALTY.
(C)
BUYER AND RTEA AGREE THAT THE AGGREGATE FAIR MARKET VALUE OF THE TAX
BENEFIT PAYMENTS CANNOT BE ASCERTAINED WITH ANY REASONABLE CERTAINTY FOR U.S.
FEDERAL INCOME TAX PURPOSES.
SECTION 4.02.
EARLY TERMINATION NOTICE.
IF BUYER CHOOSES TO EXERCISE ITS
RIGHT OF EARLY TERMINATION UNDER SECTION 4.01 ABOVE, BUYER SHALL DELIVER TO RTEA
NOTICE OF SUCH INTENTION TO EXERCISE SUCH RIGHT ("EARLY TERMINATION NOTICE")
TOGETHER WITH A SCHEDULE (THE "EARLY TERMINATION SCHEDULE") SHOWING, IN
REASONABLE DETAIL, THE CALCULATION OF THE EARLY TERMINATION PAYMENT. THE
APPLICABLE EARLY TERMINATION SCHEDULE SHALL BECOME FINAL AND BINDING ON ALL
PARTIES UNLESS RTEA, WITHIN 30 CALENDAR DAYS AFTER RECEIVING THE EARLY
TERMINATION SCHEDULE, PROVIDES BUYER WITH NOTICE OF A REASONABLE OBJECTION TO
SUCH EARLY TERMINATION SCHEDULE MADE IN GOOD FAITH ("EARLY TERMINATION OBJECTION
NOTICE"). IF THE PARTIES, FOR ANY REASON, ARE UNABLE TO SUCCESSFULLY RESOLVE THE
ISSUES RAISED IN SUCH NOTICE WITHIN 30 CALENDAR DAYS AFTER RECEIPT BY BUYER OF
THE EARLY TERMINATION OBJECTION NOTICE, BUYER AND RTEA SHALL EMPLOY THE
RECONCILIATION PROCEDURES.
IF RTEA PROVIDES AN EARLY TERMINATION OBJECTION
NOTICE OBJECTION, THE EARLY TERMINATION SCHEDULE SHALL BECOME FINAL UPON THE
EARLIER OF AN AGREEMENT BETWEEN THE PARTIES OR THE RESOLUTION OF A
RECONCILIATION DISPUTE PURSUANT TO SECTION 7.09.
SECTION 4.03.
PAYMENT UPON EARLY TERMINATION.
(A)
DATE PAYMENT DUE.
WITHIN THREE CALENDAR DAYS AFTER AGREEMENT BETWEEN
RTEA AND BUYER WITH RESPECT TO THE EARLY TERMINATION SCHEDULE, BUYER SHALL PAY
TO RTEA AN AMOUNT EQUAL TO THE EARLY TERMINATION PAYMENT.
SUCH PAYMENT SHALL BE
MADE BY WIRE TRANSFER OF IMMEDIATELY AVAILABLE FUNDS TO A BANK ACCOUNT
DESIGNATED BY RTEA OR AS OTHERWISE AGREED BY BUYER AND RTEA.
FAILURE BY BUYER
TO PAY THE EARLY TERMINATION PAYMENT PURSUANT TO THIS SECTION 4.03 SHALL IN NO
EVENT BE TREATED AS A MATERIAL BREACH OF THIS AGREEMENT BUT THE EARLY
12
TERMINATION NOTICE AND THE EARLY TERMINATION SCHEDULE FINALIZED PURSUANT TO
SECTION 4.02 GIVEN WITH RESPECT TO SUCH NOTICE SHALL BE VOID.
(B)
EARLY TERMINATION PAYMENT.
THE "EARLY TERMINATION PAYMENT" SHALL EQUAL
THE EXCESS, IF ANY, OF (I)