Schedule 14. 1.3.2 contains a true and complete listing of the following Assigned Contracts to which the ▇▇▇▇▇▇ Cogen Company is a party (the “▇▇▇▇▇▇ ▇▇▇▇▇ Company Contracts”) or to which any Seller is a party (provided, that for purposes of this Section 14.1.3.2 the definition of Assigned Fuel Retail Contracts for purposes of defining the Assigned Contracts shall include only the Jobber Agreements and the Included Fuel Retail Assigned Contracts): (a) except for any intercompany indebtedness that will be cancelled or transferred out of the ▇▇▇▇▇▇ Cogen Company Business or the Business prior to Closing, each Assigned Contract for indebtedness of any Seller for borrowed money in excess of four million dollars ($4,000,000); (b) each Assigned Contract involving a remaining commitment by any Sellers or the ▇▇▇▇▇▇ ▇▇▇▇▇ Company, as applicable, to pay capital expenditures in excess of four million dollars ($4,000,000) from and after the Effective Time; (c) each Assigned Contract for lease of personal property involving remaining payments in excess of four million dollars ($4,000,000) in any calendar year from and after the Effective Time; (d) except for Assigned Contracts of the nature described in clauses (a) through (c) above, each Assigned Contract involving remaining aggregate payments in excess of four million dollars ($4,000,000) from and after the Effective Time between the Sellers or any Affiliate of the Sellers (other than the ▇▇▇▇▇▇ Cogen Company) on the one hand, and the ▇▇▇▇▇▇ ▇▇▇▇▇ Company, on the other hand, which will survive the Closing and which cannot be cancelled by the ▇▇▇▇▇▇ Cogen Company upon sixty (60) days or less notice without payment penalty; (e) except for Assigned Contracts of the nature described in clauses (a) through (c) above, each Assigned Contract involving remaining aggregate payments in excess of four million dollars ($4,000,000) from and after the Effective Time between the Sellers or any Affiliate of the Sellers (other than the ▇▇▇▇▇▇ ▇▇▇▇▇ Company) on the one hand, and a Seller, on the other hand, which will survive the Closing and which cannot be cancelled by the Sellers upon sixty (60) days or less notice without payment penalty; (f) except for Assigned Contracts of the nature described in clauses (a) through (e) above, any Assigned Contract for the purchase of materials, supplies, goods, services, equipment or other assets that provides for remaining aggregate payments by any Seller or the ▇▇▇▇▇▇ Cogen Company of four million dollars ($4,000,000) or more in any twelve (12) month period from and after the Effective Time; and (g) any partnership or joint venture agreement that entails a remaining contractual obligation or liability in excess of four million dollars ($4,000,000). Notwithstanding anything contained herein to the contrary (i) in the case of any breach of this Section 14.1.3.2 (and any amendment of Schedules pursuant to Section 19.12), arising as a result of a failure to include an Assigned Contract in Schedule 14.1.3.2, the Losses, if any, incurred by the Buyer as a result of such breach or amendment of Schedules shall be determined by taking into account not only the obligations and/or liabilities to be incurred by the Buyer as a result of the assignment of such Assigned Contract but also the goods, services, payments and other benefits (including obligations and liabilities to be incurred or assumed by the counterparty to such Assigned Contract) to be received by the Buyer, (ii) Buyer and Sellers acknowledge and agree that certain of the Assigned Contracts are not listed in any of the Exhibits and Schedules to the Agreement because such Contracts (the “Confidential Contracts” herein) have confidentiality provisions that have not been waived by the applicable counterparty, and (iii) the failure to list such Confidential Contracts on any Exhibit or Schedule shall not result in a breach or default of any provision of this Agreement including Section
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Sources: Purchase and Sale Agreement
Schedule 14. 1.3.2 contains a true and complete listing of the following Assigned Contracts to which the ▇▇▇▇▇▇ Cogen Company is a party (the “▇▇▇▇▇▇ ▇▇▇▇▇ Company Contracts”) or to which any Seller is a party (provided, that for purposes of this Section 14.1.3.2 the definition of Assigned Fuel Retail Contracts for purposes of defining the Assigned Contracts shall include only the Jobber Agreements and the Included Fuel Retail Assigned Contracts):
(a) except for any intercompany indebtedness that will be cancelled or transferred out of the ▇▇▇▇▇▇ Cogen Company Business or the Business prior to Closing, each Assigned Contract for indebtedness of any Seller for borrowed money in excess of four million dollars ($4,000,000);
(b) each Assigned Contract involving a remaining commitment by any Sellers or the ▇▇▇▇▇▇ ▇▇▇▇▇ Company, as applicable, to pay capital expenditures in excess of four million dollars ($4,000,000) from and after the Effective Time;
(c) each Assigned Contract for lease of personal property involving remaining payments in excess of four million dollars ($4,000,000) in any calendar year from and after the Effective Time;
(d) except for Assigned Contracts of the nature described in clauses (a) through (c) above, each Assigned Contract involving remaining aggregate payments in excess of four million dollars ($4,000,000) from and after the Effective Time between the Sellers or any Affiliate of the Sellers (other than the ▇▇▇▇▇▇ Cogen Company) on the one hand, and the ▇▇▇▇▇▇ ▇▇▇▇▇ Company, on the other hand, which will survive the Closing and which cannot be cancelled by the ▇▇▇▇▇▇ Cogen Company upon sixty (60) days or less notice without payment penalty;
(e) except for Assigned Contracts of the nature described in clauses (a) through (c) above, each Assigned Contract involving remaining aggregate payments in excess of four million dollars ($4,000,000) from and after the Effective Time between the Sellers or any Affiliate of the Sellers (other than the ▇▇▇▇▇▇ ▇▇▇▇▇ Company) on the one hand, and a Seller, on the other hand, which will survive the Closing and which cannot be cancelled by the Sellers upon sixty (60) days or less notice without payment penalty;
(f) except for Assigned Contracts of the nature described in clauses (a) through (e) above, any Assigned Contract for the purchase of materials, supplies, goods, services, equipment or other assets that provides for remaining aggregate payments by any Seller or the ▇▇▇▇▇▇ Cogen Company of four million dollars ($4,000,000) or more in any twelve (12) month period from and after the Effective Time; and
(g) any partnership or joint venture agreement that entails a remaining contractual obligation or liability in excess of four million dollars ($4,000,000). Notwithstanding anything contained herein to the contrary (i) in the case of any breach of this Section 14.1.3.2 (and any amendment of Schedules pursuant to Section 19.12), arising as a result of a failure to include an Assigned Contract in Schedule 14.1.3.2, the Losses, if any, incurred by the Buyer as a result of such breach or amendment of Schedules shall be determined by taking into account not only the obligations and/or liabilities to be incurred by the Buyer as a result of the assignment of such Assigned Contract but also the goods, services, payments and other benefits (including obligations and liabilities to be incurred or assumed by the counterparty to such Assigned Contract) to be received by the Buyer, (ii) Buyer and Sellers acknowledge and agree that certain of the Assigned Contracts are not listed in any of the Exhibits and Schedules to the Agreement because such Contracts (the “Confidential Contracts” herein) have confidentiality provisions that have not been waived by the applicable counterparty, and (iii) the failure to list such Confidential Contracts on any Exhibit or Schedule shall not result in a breach or default of any provision of this Agreement including SectionSection 14.1.3.2 and the addition of any such Confidential Contracts to any Exhibit or Schedule after the Execution Date pursuant to Section 19.12 shall not give rise to any Losses for the Buyer or require any indemnification of the Buyer under this Agreement so long as such Confidential Contract was entered into in the Ordinary Course of Business or would have otherwise satisfied the requirement of the first sentence of Section 7.5, assuming that such sentence applied to Contracts executed prior to the Execution Date.
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