Common use of Procedures to Determine Status of Liability or Asset Clause in Contracts

Procedures to Determine Status of Liability or Asset. (a) On the Distribution Date, Duke Energy and Spectra Energy will form a Contingent Claim Committee of two persons and comprised of the general counsel or chief legal officer of Duke Energy and Spectra Energy (as appropriate), or their respective delegates, for the purpose of resolving whether: (i) any Contingent Liability not identified in the schedules to this Agreement is a Power Liability, Gas Liability or Unallocated Liability; or (ii) any Contingent Gain or Unallocated Asset not identified in the schedules to this Agreement is a Power Asset, Gas Asset or Unallocated Asset. (b) If any Party or any member of such Party’s Group shall receive notice or otherwise learn of an Asset that may reasonably be determined to be an Unallocated Asset or Contingent Gain, or the assertion of a Third Party Claim which may reasonably be determined to be a Contingent Liability or an Unallocated Liability, not identified in the schedules to this Agreement, such Party shall give the other Party and the Contingent Claim Committee written notice thereof promptly (and in any event within fifteen (15) days) after such Person becomes aware of such Asset, Liability or Third Party Claim. Thereafter, the Party shall deliver to the Contingent Claim Committee, promptly (and in any event within five (5) Business Days) after the Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Party or the member of such Party’s Group relating to the matter. (c) The Contingent Claim Committee’s determination (which shall be made within 30 days of such referral), if unanimous, shall be binding on all of the Parties and their respective successors and assigns. In the event that the Contingent Claim Committee cannot reach a unanimous determination as to the nature or status of any such Contingent Liabilities or Contingent Gains within 30 days after such referral, the issue shall be submitted for arbitration before a single arbitrator pursuant to the procedures set forth in ARTICLE IX of this Agreement; provided, however, that no Dispute Notice or executive arbitration procedure as set forth in Section 9.1 shall be required. The outcome of the arbitration pursuant to ARTICLE IX shall be final and binding on all parties and their respective successors and assigns. (d) In resolving, with respect to any Action not specifically addressed in this Agreement (regardless of whether such matters are currently pending but not set forth or are asserted or filed hereafter), whether (i) any Contingent Gain is an Unallocated Asset, an Exclusive Duke Energy Contingent Gain or an Exclusive Spectra Energy Contingent Gain or (ii) any Contingent Liability is an Unallocated Liability, an Exclusive Duke Energy Contingent Liability, or an Exclusive Spectra Energy Contingent Liability, the categorization of Contingent Claims and Contingent Liabilities reflected in Schedules 1.1(58), 1.1(60), 1.1(69)(viii) and 1.1(112)(vi), whereby the Parties have assigned existing claims based on whether the claim or contingent liability principally relates to the Gas Business or the Power Business, shall be considered and used as a precedential guide. (e) Duke Energy may, but shall not be obligated to, commence prosecution or defense of such matters pending decision of the Contingent Claims Committee (or decision of the arbitrator, if applicable). In the event that Duke Energy commences any such prosecution or defense and, upon resolution of the dispute, Spectra Energy is determined hereunder to have the exclusive right or obligation to such claim or right, Duke Energy shall, promptly upon the request of Spectra Energy, discontinue the prosecution or defense of such matter and transfer the control thereof to Spectra Energy. In such event, Spectra Energy will reimburse Duke Energy for all costs and expenses (including allocated costs of in-house counsel and other personnel), reasonably incurred prior to resolution of such dispute in the prosecution or defense of such claim or right. (f) At any time or from time to time prior to the Effective Time, the chief legal officer of Duke Energy, following consultation with the designated person to be the chief legal officer of Spectra Energy, may amend or supplement any of Schedules 1.1(58), 1.1(60), 1.1(69)(viii), 1.1(112)(vi) and 1.1(146)(iii)).

Procedures to Determine Status of Liability or Asset. (a) On the Distribution Date, Duke Energy Entergy and Spectra Energy Enexus will form a Contingent Claim Committee of two persons and comprised of the general counsel or chief legal officer of Duke Energy Entergy and Spectra Energy Enexus (as appropriate), or their respective delegates, for the purpose of resolving whether: (i) any Contingent Liability or Unallocated Liability not identified in the schedules to this Agreement or in the Joint Venture Formation Agreement is a Power Retained Business Liability, Gas a Non-Utility Nuclear Liability or an Unallocated Liability; or (ii) any Contingent Gain or Unallocated Asset not identified in the schedules to this Agreement or in the Joint Venture Agreements is a Power Retained Business Asset, Gas a Non-Utility Nuclear Asset or an Unallocated Asset. (b) If any Party or any member of such Party’s Group shall receive notice or otherwise learn of an Asset that may reasonably be determined to be a Contingent Gain or an Unallocated Asset or Contingent GainAsset, or the assertion of a Third Party Claim which may reasonably be determined to be a Contingent Liability or an Unallocated Liability, not identified in the schedules to this Agreement or in the Joint Venture Formation Agreement, such Party shall give the other Party and the Contingent Claim Committee written notice thereof promptly (and in any event within fifteen (15) days) after such Person becomes aware of such Asset, Liability or Third Party Claim. Thereafter, the Party shall deliver to the Contingent Claim Committee, promptly (and in any event within five (5) Business Days) after the Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Party or the member of such Party’s Group relating to the matter. (c) If a dispute shall arise between the Parties as to the proper characterization of any Asset or Liability (other than one covered under Section 6.4(b)), then any Party may refer that dispute to the Continent Claim Committee for resolution in the same manner as set forth for a Third Party Claim or an Asset or Contingent Gain that may be an Unallocated Asset; provided, however, that any dispute as to the proper characterization of an Asset or Liability as being a Joint Venture Asset or Joint Venture Liability shall be resolved in accordance with the Joint Venture Formation Agreement. (d) The Contingent Claim Committee’s determination (which shall be made within 30 days of such referral), if unanimous, shall be binding on all of the Parties and their respective successors and assigns. In the event that the Contingent Claim Committee cannot reach a unanimous determination as to the nature or status of any such Contingent Liabilities or Contingent Gains within 30 thirty (30) days after such referral, the issue shall be submitted for arbitration before a single arbitrator pursuant to the procedures set forth in ARTICLE IX of this Agreement; provided, however, that no Dispute Notice or executive arbitration procedure as set forth in Section 9.1 shall be required. The outcome of the arbitration pursuant to ARTICLE IX shall be final and binding on all parties the Parties and their respective successors and assigns. (de) In resolving, with respect to any Action not specifically addressed in this Agreement (regardless of whether such matters are currently pending but not set forth or are asserted or filed hereafter), whether: (i) any Contingent Gain is an Unallocated Asset, an Exclusive Duke Energy Enexus Contingent Gain Gain, or an Exclusive Spectra Energy Entergy Contingent Gain Gain; or (ii) any Contingent Liability is an Unallocated Liability, an Exclusive Duke Energy Enexus Contingent Liability, or an Exclusive Spectra Energy Entergy Contingent Liability, the categorization of Contingent Claims Gains and Contingent Liabilities reflected in Schedules 1.1(581.1(54), 1.1(601.1(57), 1.1(69)(viii1.1(54), 1.1(55), 1.1(64) and 1.1(112)(vi), 1.1(65) whereby the Parties have assigned existing claims based on whether the claim or contingent liability principally relates to the Gas Business Non-Utility Nuclear Business, the Retained Business, or the Power Business, Joint Venture Business shall be considered and used as a precedential guide. (ef) Duke Energy Entergy may, but shall not be obligated to, commence prosecution or defense of such matters pending decision of the Contingent Claims Committee (or decision of the arbitrator, if applicable). In the event that Duke Energy Entergy commences any such prosecution or defense and, upon resolution of the dispute, Spectra Energy Enexus is determined hereunder to have the exclusive right or obligation to such claim or right, Duke Energy Entergy shall, promptly upon the request of Spectra EnergyEnexus, discontinue the prosecution or defense of such matter and transfer the control thereof to Spectra EnergyEnexus. In such event, Spectra Energy Enexus will reimburse Duke Energy Entergy for all costs and expenses (including allocated costs of in-house counsel and other personnel), reasonably incurred prior to resolution of such dispute in the prosecution or defense of such claim or right. (fg) At any time or from time to time prior to the Effective Time, the chief legal officer of Duke EnergyEntergy, following consultation with the designated person to be the chief legal officer of Spectra EnergyEnexus, may amend or supplement any of Schedules 1.1(581.1(54), 1.1(601.1(57), 1.1(69)(viii1.1(54), 1.1(112)(vi1.1(55) and 1.1(146)(iii1.1(133)(iii)).

Procedures to Determine Status of Liability or Asset. (a) On As of the Distribution DateEffective Time, Duke Energy and Spectra Energy the Parties will form a Contingent Claim Committee of two three persons and comprised of the general counsel or chief legal officer of Duke Energy and Spectra Energy (as appropriate)each of the Parties, or their respective delegates, for the purpose of resolving whether: (i) any Contingent Liability not identified specifically characterized in the schedules to this Agreement or its Schedules, whose proper characterization is disputed, is a Power Real Estate Liability, Gas Liability a Financial Services Liability, a Retained Business Liability, or an Unallocated Liability; or (ii) any Contingent Gain or Unallocated Asset not identified specifically characterized in the schedules to this Agreement or its Schedules, whose proper characterization is disputed, is a Power Real Estate Asset, Gas Asset a Financial Services Asset, a Retained Business Asset, or an Unallocated Asset. (b) If any Party or any member of such Party’s Group its Subsidiaries shall receive notice or otherwise learn of an Asset that may reasonably be determined to be a Contingent Gain or an Unallocated Asset or Contingent GainAsset, or the assertion of a Third Party Claim which may reasonably be determined to be a Contingent Liability or an Unallocated Liability, not identified specifically characterized in the schedules to this AgreementAgreement or its Schedules, such Party shall give the other Party Parties and the Contingent Claim Committee written notice thereof promptly (and in any event within fifteen (15) 15 days) after such Person becomes aware of such Asset, Liability or Third Party Claim. Thereafter, the Party shall deliver to the Contingent Claim Committee, promptly (and in any event within five (5) Business Days10 calendar days) after the Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Party or the member of such Party’s Group relating to the matter. (c) If a dispute shall arise between any of the Parties or among all of the Parties as to the proper characterization of any Asset or Liability (other than one covered under Section 6.4(b)), then any Party may refer that dispute to the Contingent Claim Committee for resolution in the same manner as is set forth for a Third Party Claim or an Asset or Contingent Gain that may be an Unallocated Asset. (d) The Contingent Claim Committee’s determination (which shall be made within 30 days of such referral), if unanimous, shall be binding on all of the Parties and their respective successors and assigns. In The good faith determination of any two members of the event Contingent Claim Committee shall be binding for the characterization of all Assets or Liabilities concerning less than $100,000 (severally, or for related matters, in the aggregate). For all matters referred to the Contingent Claim Committee that concern $100,000 or more (severally, or for related matters, in the aggregate), if the Contingent Claim Committee cannot reach a unanimous determination as to the nature characterization of an Asset or status of any such Contingent Liabilities or Contingent Gains Liability within 30 days after such referral, referral of the issue such matters shall be submitted for arbitration before a single arbitrator pursuant to under the procedures set forth in ARTICLE IX of this Agreement; provided, however, that no Dispute Notice or executive arbitration procedure prior negotiations as set forth in Section 9.1 shall be required. The outcome of the arbitration pursuant to ARTICLE IX shall be final and binding on all parties Parties, their Subsidiaries and their respective successors and assigns. (de) In resolving, with respect to any Action not specifically addressed in this Agreement (regardless of whether such matters are currently pending but not set forth or are asserted or filed hereafter), whether (i) any Contingent Gain is an Unallocated AssetExclusive Temple-Inland Contingent Gain, an Exclusive Duke Energy Forestar Contingent Gain, or an Exclusive Guaranty Contingent Gain or an Exclusive Spectra Energy Contingent Gain Unallocated Asset, or (ii) any Contingent Liability is an Unallocated Exclusive Temple-Inland Contingent Liability, an Exclusive Duke Energy Forestar Contingent Liability, an Exclusive Guaranty Contingent Liability, or an Exclusive Spectra Energy Contingent Unallocated Liability, the categorization characterization of Contingent Claims Gains and Contingent Liabilities reflected in Schedules 1.1(581.1(39), 1.1(601.1(40), 1.1(69)(viii) 1.1(41), 1.1(42), 1.1(43), and 1.1(112)(vi1.1(44), whereby the Parties have assigned existing claims based on whether the claim or contingent liability principally relates to the Gas Retained Business, the Real Estate Business or the Power Business, Financial Services Business shall be considered and used as a precedential guide. (ef) Duke Energy may, but shall not be obligated to, Temple-Inland may commence prosecution or defense of such matters pending decision of the Contingent Claims Committee (or decision of the arbitratorarbitration decision, if applicable), but shall not be obligated to do so. In the event that Duke Energy If Temple-Inland commences any such prosecution or defense and, upon resolution of the dispute, Spectra Energy and subsequently Forestar or Guaranty is determined hereunder to have the exclusive right or obligation to such claim or right, Duke Energy shallthen, promptly upon the request of Spectra EnergyForestar or Guaranty, Temple-Inland shall promptly discontinue the prosecution or defense of such matter and transfer the control thereof to Spectra EnergyForestar or Guaranty, as applicable. In such event, Spectra Energy Forestar or Guaranty will reimburse Duke Energy Temple-Inland for all costs and expenses (including allocated costs of in-house counsel and other personnel), reasonably incurred prior to resolution of such dispute in the prosecution or defense of such claim or right. (fg) At any time or from time to time prior to the Effective Time, the chief legal officer General Counsel of Duke EnergyTemple-Inland, following consultation with the designated person to be the chief legal officer officers of Spectra EnergyForestar and Guaranty, may amend or supplement any of Schedules 1.1(581.1(39), 1.1(601.1(41), 1.1(69)(viii), 1.1(112)(vi) and 1.1(146)(iii)or 1.1(43).

Procedures to Determine Status of Liability or Asset. (a) On the Distribution Date, Duke Energy and Spectra Energy GasCo will form a Contingent Claim Committee of two persons and comprised of the general counsel or chief legal officer of Duke Energy and Spectra Energy GasCo (as appropriate), or their respective delegates, for the purpose of resolving whether: (i) any Contingent Liability not identified in the schedules to this Agreement is a Power Liability, Gas Liability or Unallocated Liability; or (ii) any Contingent Gain or Unallocated Asset not identified in the schedules to this Agreement is a Power Asset, Gas Asset or Unallocated Asset. (b) If any Party or any member of such Party’s Group shall receive notice or otherwise learn of an Asset that may reasonably be determined to be an Unallocated Asset or Contingent Gain, or the assertion of a Third Party Claim which may reasonably be determined to be a Contingent Liability or an Unallocated Liability, not identified in the schedules to this Agreement, such Party shall give the other Party and the Contingent Claim Committee written notice thereof promptly (and in any event within fifteen (15) days) after such Person becomes aware of such Asset, Liability or Third Party Claim. Thereafter, the Party shall deliver to the Contingent Claim Committee, promptly (and in any event within five (5) Business Days) after the Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Party or the member of such Party’s Group relating to the matter. (c) The Contingent Claim Committee’s determination (which shall be made within 30 days of such referral), if unanimous, shall be binding on all of the Parties and their respective successors and assigns. In the event that the Contingent Claim Committee cannot reach a unanimous determination as to the nature or status of any such Contingent Liabilities or Contingent Gains within 30 days after such referral, the issue shall be submitted for arbitration before a single arbitrator pursuant to the procedures set forth in ARTICLE IX of this Agreement; provided, however, that no Dispute Notice or executive arbitration procedure as set forth in Section 9.1 shall be required. The outcome of the arbitration pursuant to ARTICLE IX shall be final and binding on all parties and their respective successors and assigns. (d) In resolving, with respect to any Action not specifically addressed in this Agreement (regardless of whether such matters are currently pending but not set forth or are asserted or filed hereafter), whether (i) any Contingent Gain is an Unallocated Asset, an Exclusive Duke Energy Contingent Gain or an Exclusive Spectra Energy GasCo Contingent Gain or (ii) any Contingent Liability is an Unallocated Liability, an Exclusive Duke Energy Contingent Liability, or an Exclusive Spectra Energy GasCo Contingent Liability, the categorization of Contingent Claims and Contingent Liabilities reflected in Schedules 1.1(581.1(54), 1.1(601.1(56), 1.1(69)(viii1.1(65)(viii) and 1.1(112)(vi1.1(119)(vi), whereby the Parties have assigned existing claims based on whether the claim or contingent liability principally relates to the Gas Business or the Power Business, shall be considered and used as a precedential guide. (e) Duke Energy may, but shall not be obligated to, commence prosecution or defense of such matters pending decision of the Contingent Claims Committee (or decision of the arbitrator, if applicable). In the event that Duke Energy commences any such prosecution or defense and, upon resolution of the dispute, Spectra Energy GasCo is determined hereunder to have the exclusive right or obligation to such claim or right, Duke Energy shall, promptly upon the request of Spectra EnergyGasCo, discontinue the prosecution or defense of such matter and transfer the control thereof to Spectra EnergyGasCo. In such event, Spectra Energy GasCo will reimburse Duke Energy for all costs and expenses (including allocated costs of in-house counsel and other personnel), reasonably incurred prior to resolution of such dispute in the prosecution or defense of such claim or right. (f) At any time or from time to time prior to the Effective TimeDistribution Date, the chief legal officer of Duke Energy, following consultation with the designated person to be the chief legal officer of Spectra EnergyGasCo, may amend or supplement any of Schedules 1.1(581.1(54), 1.1(601.1(56), 1.1(69)(viii1.1(65)(viii), 1.1(112)(vi1.1(120)(vi) and 1.1(146)(iii1.1(142)(iii)).

Procedures to Determine Status of Liability or Asset. (a) On As of the Distribution DateEffective Time, Duke Energy and Spectra Energy the Parties will form a Contingent Claim Committee of two three persons and comprised of the general counsel or chief legal officer of Duke Energy and Spectra Energy (as appropriate)each of the Parties, or their respective delegates, for the purpose of resolving whether: (i) any Contingent Liability not identified specifically characterized in the schedules to this Agreement or its Schedules, whose proper characterization is disputed, is a Power Real Estate Liability, Gas Liability a Financial Services Liability, a Retained Business Liability, or an Unallocated Liability; or (ii) any Contingent Gain or Unallocated Asset not identified specifically characterized in the schedules to this Agreement or its Schedules, whose proper characterization is disputed, is a Power Real Estate Asset, Gas Asset a Financial Services Asset, a Retained Business Asset, or an Unallocated Asset. (b) If any Party or any member of such Party’s Group its Subsidiaries shall receive notice or otherwise learn of an Asset that may reasonably be determined to be a Contingent Gain or an Unallocated Asset or Contingent GainAsset, or the assertion of a Third Party Claim which may reasonably be determined to be a Contingent Liability or an Unallocated Liability, not identified specifically characterized in the schedules to this AgreementAgreement or its Schedules, such Party shall give the other Party Parties and the Contingent Claim Committee written notice thereof promptly (and in any event within fifteen (15) 15 days) after such Person becomes aware of such Asset, Liability or Third Party Claim. Thereafter, the Party shall deliver to the Contingent Claim Committee, promptly (and in any event within five (5) Business Days10 calendar days) after the Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Party or the member of such Party’s Group relating to the matter. (c) If a dispute shall arise between any of the Parties or among all of the Parties as to the proper characterization of any Asset or Liability (other than one covered under Section 6.4(b), then any Party may refer that dispute to the Contingent Claim Committee for resolution in the same manner as is set forth for a Third Party Claim or an Asset or Contingent Gain that may be an Unallocated Asset. (d) The Contingent Claim Committee’s determination (which shall be made within 30 days of such referral), if unanimous, shall be binding on all of the Parties and their respective successors and assigns. In The good faith determination of any two members of the event Contingent Claim Committee shall be binding for the characterization of all Assets or Liabilities concerning less than $100,000 (severally, or for related matters, in the aggregate). For all matters referred to the Contingent Claim Committee that concern $100,000 or more (severally, or for related matters, in the aggregate), if the Contingent Claim Committee cannot reach a unanimous determination as to the nature characterization of an Asset or status of any such Contingent Liabilities or Contingent Gains Liability within 30 days after such referral, referral of the issue such matters shall be submitted for arbitration before a single arbitrator pursuant to under the procedures set forth in ARTICLE IX of this Agreement; provided, however, that no Dispute Notice or executive arbitration procedure prior negotiations as set forth in Section 9.1 shall be required. The outcome of the arbitration pursuant to ARTICLE IX shall be final and binding on all parties Parties, their Subsidiaries and their respective successors and assigns. (de) In resolving, with respect to any Action not specifically addressed in this Agreement (regardless of whether such matters are currently pending but not set forth or are asserted or filed hereafter), whether (i) any Contingent Gain is an Unallocated AssetExclusive Temple-Inland Contingent Gain, an Exclusive Duke Energy Forestar Contingent Gain, or an Exclusive Guaranty Contingent Gain or an Exclusive Spectra Energy Contingent Gain Unallocated Asset, or (ii) any Contingent Liability is an Unallocated Exclusive Temple-Inland Contingent Liability, an Exclusive Duke Energy Forestar Contingent Liability, an Exclusive Guaranty Contingent Liability, or an Exclusive Spectra Energy Contingent Unallocated Liability, the categorization characterization of Contingent Claims Gains and Contingent Liabilities reflected in Schedules 1.1(581.1(39), 1.1(601.1(40), 1.1(69)(viii) and 1.1(112)(vi1.1(41), 1.1(42), 1.1(43), 1.1(44), whereby the Parties have assigned existing claims based on whether the claim or contingent liability principally relates to the Gas Retained Business, the Real Estate Business or the Power Business, Financial Services Business shall be considered and used as a precedential guide. (ef) Duke Energy may, but shall not be obligated to, Temple-Inland may commence prosecution or defense of such matters pending decision of the Contingent Claims Committee (or decision of the arbitratorarbitration decision, if applicable), but shall not be obligated to do so. In the event that Duke Energy If Temple-Inland commences any such prosecution or defense and, upon resolution of the dispute, Spectra Energy and subsequently Forestar or Guaranty is determined hereunder to have the exclusive right or obligation to such claim or right, Duke Energy shallthen, promptly upon the request of Spectra EnergyForestar or Guaranty, Temple-Inland shall promptly discontinue the prosecution or defense of such matter and transfer the control thereof to Spectra EnergyForestar or Guaranty, as applicable. In such event, Spectra Energy Forestar or Guaranty will reimburse Duke Energy Temple-Inland for all costs and expenses (including allocated costs of in-house counsel and other personnel), reasonably incurred prior to resolution of such dispute in the prosecution or defense of such claim or right. (fg) At any time or from time to time prior to the Effective Time, the chief legal officer General Counsel of Duke EnergyTemple-Inland, following consultation with the designated person to be the chief legal officer officers of Spectra EnergyForestar and Guaranty, may amend or supplement any of Schedules 1.1(581.1(39), 1.1(601.1(41), 1.1(69)(viii), 1.1(112)(vi) and 1.1(146)(iii)1.1(43).