Acceleration - Bona Fide Dispute

[Guest JeffG]

Hello,

Question:

Executive has an agreement allowing him to accelerate all noncompetition payments due and outstanding when the employer fails to pay for at least four consecutive months. The payment amounts are fixed and paid on a fixed schedule over ten years. 1.409A-3(j)(4)(xiv) allows for acceleration upon a "bona fide dispute as to the service provider's right to the deferred amount . . . ." This language would not seem to encompass the situation where the employer fails to pay due to financial hardship (ie, the employer doesn't dispute the right to the payment). It seems odd that an employee in that situation who sues to enforce the agreement in year 2 would not be able to accelerate the amounts owed. If there's no way to accelerate for non-payment by agreement, isn't the employee able only to sue for the amounts that are unpaid at the time of suit (or trial)? As always, I fear I'm missing something obvious. Thanks in advance.