Common use of Unallocated Liabilities Clause in Contracts

Unallocated Liabilities. (a) As of the Effective Time, Schedule 1.1(146)(iii) sets forth all known Unallocated Liabilities and there shall be a presumption that any Liability not explicitly addressed in this Agreement or set forth in the Schedules hereto is, nevertheless, intended to be either a Power Liability or a Gas Liability. Such presumption may only be overcome by clear and convincing evidence to the contrary. (b) Each of Duke Energy and Spectra Energy shall be responsible for its Allocated Percentage of any Unallocated Liability. It shall not be a defense to any obligation by any party to pay any amount in respect of any Unallocated Liability that such party was not consulted in the defense thereof, that such party’s views or opinions as to the conduct of such defense were not accepted or adopted, that such party does not approve of the quality or manner of the defense thereof or that such Unallocated Liability was incurred by reason of a settlement rather than by a judgment or other determination of liability; provided, however, that neither Party shall settle an Unallocated Liability in a manner which would restrict or limit the future conduct of the other Party’s business or operations without such other Party’s consent. (c) As of the Effective Time, all known Contingent Liabilities are identified in Schedules 1.1(58) and 1.1(60), and such Contingent Liabilities are either Power Liabilities or Gas Liabilities pursuant to Section 1.1(112)(vii) and Section 1.1(69)(vi), respectively. The respective Party assigned a Contingent Liability as an Exclusive Duke Energy Contingent Liability or an Exclusive Spectra Energy Contingent Liability shall be solely responsible for managing the defense of the claim, including, without limitation, whether to settle, and shall have sole responsibility, as between the Spectra Energy Group and the Duke Energy Group, for the costs, expenses, liabilities and judgments associated with the Action, notwithstanding that any member of the Spectra Energy Group (with respect to an Exclusive Duke Energy Contingent Liability) or any member of the Duke Energy Group (with respect to an Exclusive Spectra Energy Contingent Liability) may have been named or remained a party defendant to the Action. There shall be a presumption that any Contingent Liability not explicitly addressed in this Agreement or set forth in the Schedules hereto is, nevertheless, intended to be either a Power Liability or a Gas Liability. Such presumption may only be overcome by clear and convincing evidence to the contrary. (d) Contingent Liabilities not known as of the Effective Time, or otherwise not included in Schedules 1.1(58) and 1.1(60), shall be referred to the Contingent Claim Committee for determination pursuant to the provisions of Section 6.4 of whether the Contingent Liability is an Exclusive Duke Energy Contingent Liability, an Exclusive Spectra Energy Contingent Liability or an Unallocated Liability (i) Any Contingent Liability determined by the Contingent Claim Committee pursuant to Section 6.4 to be an Exclusive Duke Energy Contingent Liability, shall be a Power Liability as provided in Section 1.1(112)(vii), and shall be administered by Duke Energy and Duke Energy shall indemnify Spectra Energy from such Liability in accordance with ARTICLE VII. (ii) Any Contingent Liability determined by the Contingent Claim Committee pursuant to Section 6.4 to be an Exclusive Spectra Energy Contingent Liability, shall be a Spectra Energy Liability as provided in Section 1.1(69)(vi), and shall be administered by Spectra Energy and Spectra Energy shall indemnify Duke Energy from such Liability in accordance with ARTICLE VII. (iii) Except as set forth in Schedule 1.1(146)(iii), Duke Energy shall assume the defense of, and may seek to settle or compromise, any claim determined by the Contingent Claim Committee pursuant to Section 6.4 to be an Unallocated Liability, and the costs and expenses (including allocated costs of in-house counsel and other personnel) thereof shall be included in the calculation of the amount of the applicable Unallocated Liability in determining the reimbursement obligations of the other parties with respect thereto. (e) Schedule 1.1(146)(iii) indicates, to the extent so identifiable on the date hereof, the Party that shall be responsible for administering each item set forth therein and any special procedures to be applied in administering or allocating the Liability associated with each Unallocated Liability set forth therein.

Unallocated Liabilities. (a) As of the Effective TimeDate of this Agreement, the Parties have listed on Schedule 1.1(146)(iii1.1(165)(iii) sets forth all Liabilities known to the Parties that they intend to be Unallocated Liabilities and there shall be Liabilities. If a presumption that any Liability is not explicitly addressed in this Agreement or set forth in the Schedules hereto isSchedules, neverthelessthe Parties shall be presumed to have intended that the Liability be a Real Estate Liability, intended to be either a Power Financial Services Liability or a Gas Retained Business Liability. Such presumption may only be overcome by clear and convincing evidence to the contrary. (b) Each of Duke Energy and Spectra Energy the Parties shall be responsible for its Allocated Percentage of any Unallocated Liability. It shall not be a defense to any obligation by any party to pay any amount in respect of any Unallocated Liability that such party was not consulted in the defense thereof, that such party’s views or opinions as to the conduct of such defense were not accepted or adopted, that such party does not approve of the quality or manner of the defense thereof or that such Unallocated Liability was incurred by reason of a settlement rather than by a judgment or other determination of liability; provided, however, that neither Party shall settle an Unallocated Liability in a manner which would restrict or limit the future conduct of the other Party’s business or operations without such other Party’s consent. (c) As of the Effective TimeDate of this Agreement, the Parties have listed or described on Schedules 1.1(40), 1.1(42)and 1.1(44), all known Contingent Liabilities are identified in Schedules 1.1(58) and 1.1(60), and such known to them. Each of those Contingent Liabilities are either Power Liabilities is a Real Estate Liability, a Financial Services Liability or Gas Liabilities a Retained Business Liability pursuant to Section 1.1(112)(vii1.1(124), Section 1.1(49) and Section 1.1(69)(vi1.1(133), respectively. The respective Party assigned If a Contingent Liability as an Exclusive Duke Energy Contingent Liability or an Exclusive Spectra Energy Contingent Liability shall be solely responsible for managing the defense of the claim, including, without limitation, whether to settle, and shall have sole responsibility, as between the Spectra Energy Group and the Duke Energy Group, for the costs, expenses, liabilities and judgments associated with the Action, notwithstanding that any member of the Spectra Energy Group (with respect to an Exclusive Duke Energy Contingent Liability) or any member of the Duke Energy Group (with respect to an Exclusive Spectra Energy Contingent Liability) may have been named or remained a party defendant to the Action. There shall be a presumption that any Contingent Liability is not explicitly addressed in this Agreement or set forth in the Schedules hereto isSchedules, nevertheless, there shall be a presumption that the Parties intended the Contingent Liability to be either a Power Real Estate Liability, a Financial Services Liability or a Gas Retained Business Liability. Such presumption may only be overcome by clear and convincing evidence to the contrary. (d) Contingent Liabilities not known as of After the Effective Time, if a Contingent Liability is identified that is not explicitly addressed in the Agreement or otherwise not included set forth in Schedules 1.1(58) and 1.1(60)the Schedules, the Contingent Liability shall be referred to the Contingent Claim Committee to determine responsibility for determination the Contingent Liability pursuant to the provisions of Section 6.4 of whether the Contingent Liability is an Exclusive Duke Energy Contingent Liability, an Exclusive Spectra Energy Contingent Liability or an Unallocated Liability (i) Any Contingent Liability determined by the Contingent Claim Committee pursuant to Section 6.4 to be an Exclusive Duke Energy Contingent Liability, shall be a Power Liability as provided in Section 1.1(112)(vii), and shall be administered by Duke Energy and Duke Energy shall indemnify Spectra Energy from such Liability in accordance with ARTICLE VII6.4. (ii) Any Contingent Liability determined by the Contingent Claim Committee pursuant to Section 6.4 to be an Exclusive Spectra Energy Contingent Liability, shall be a Spectra Energy Liability as provided in Section 1.1(69)(vi), and shall be administered by Spectra Energy and Spectra Energy shall indemnify Duke Energy from such Liability in accordance with ARTICLE VII. (iiie) Except as set forth in Schedule 1.1(146)(iii1.1(164)(iii), Duke Energy Temple-Inland shall assume the defense of, and may seek to settle or compromise, any claim determined by the Contingent Claim Committee pursuant to Section 6.4 to be an Unallocated Liability, and the costs and expenses (including allocated costs of in-house counsel and other personnel) thereof shall be included in the calculation of the amount of the applicable Unallocated Liability in determining the reimbursement obligations of the other parties with respect thereto. (e) Schedule 1.1(146)(iii) indicates, to the extent so identifiable on the date hereof, the Party that shall be responsible for administering each item set forth therein and any special procedures to be applied in administering or allocating the Liability associated with each Unallocated Liability set forth therein.6.4

Unallocated Liabilities. (a) As of the Effective TimeDate, Schedule 1.1(146)(iii1.1(123)(iv) sets forth all known Unallocated Liabilities and there shall be a presumption that any Liability not explicitly addressed in this Agreement or set forth in the Schedules hereto is, nevertheless, intended to be either a Power Questar Liability or a Gas QEP Liability. Such presumption may only be overcome by clear and convincing evidence to the contrary. (b) Each of Duke Energy Questar and Spectra Energy QEP shall be responsible for its Allocated Percentage of any Unallocated Liability. It shall not be a defense to any obligation by any party to pay any amount in respect of any Unallocated Liability that such party was not consulted in the defense thereof, that such party’s views or opinions as to the conduct of such defense were not accepted or adopted, that such party does not approve of the quality or manner of the defense thereof or that such Unallocated Liability was incurred by reason of a settlement rather than by a judgment or other determination of liability; provided, however, that neither Party shall settle an Unallocated Liability in a manner which would restrict or limit the future conduct of the other Party’s business or operations without such other Party’s consent. (c) As of the Effective TimeDate, all known Contingent Liabilities are identified in Schedules 1.1(581.1(37) and 1.1(601.1(39), and such Contingent Liabilities are either Power Questar Liabilities or Gas QEP Liabilities pursuant to Section 1.1(112)(vii1.1(101)(vi) and Section 1.1(69)(vi1.1(88)(vi), respectively. The respective Party assigned a Contingent Liability as an Exclusive Duke Energy Questar Contingent Liability or an Exclusive Spectra Energy QEP Contingent Liability shall be solely responsible for managing the defense of the claim, including, without limitation, whether to settle, and shall have sole responsibility, as between the Spectra Energy QEP Group and the Duke Energy Questar Group, for the costs, expenses, liabilities and judgments associated with the Action, notwithstanding that any member of the Spectra Energy QEP Group (with respect to an Exclusive Duke Energy Questar Contingent Liability) or any member of the Duke Energy Questar Group (with respect to an Exclusive Spectra Energy QEP Contingent Liability) may have been named or remained a party defendant to the Action. There shall be a presumption that any Contingent Liability not explicitly addressed in this Agreement or set forth in the Schedules hereto is, nevertheless, intended to be either a Power Questar Liability or a Gas QEP Liability. Such presumption may only be overcome by clear and convincing evidence to the contrary. (d) Contingent Liabilities not known as of the Effective TimeDate, or otherwise not included in Schedules 1.1(581.1(37) and 1.1(601.1(39), shall be referred to the Contingent Claim Committee for determination pursuant to the provisions of Section 6.4 of whether the Contingent Liability is an Exclusive Duke Energy Questar Contingent Liability, an Exclusive Spectra Energy QEP Contingent Liability or an Unallocated Liability, based on the following factors: (i) Any Contingent Liability determined by the Contingent Claim Committee pursuant to Section 6.4 to be an Exclusive Duke Energy Questar Contingent Liability, shall be a Power Liability as provided in Section 1.1(112)(vii)Questar Liability, and shall be administered by Duke Energy Questar and Duke Energy Questar shall indemnify Spectra Energy QEP from such Liability in accordance with ARTICLE VII. (ii) Any Contingent Liability determined by the Contingent Claim Committee pursuant to Section 6.4 to be an Exclusive Spectra Energy QEP Contingent Liability, shall be a Spectra Energy Liability as provided in Section 1.1(69)(vi)QEP Liability, and shall be administered by Spectra Energy QEP and Spectra Energy QEP shall indemnify Duke Energy Questar from such Liability in accordance with ARTICLE VII. (iii) Except as set forth in Schedule 1.1(146)(iii1.1(123)(iv), Duke Energy the Designated Party shall assume the defense of, and may seek to settle or compromise, any claim determined by the Contingent Claim Committee pursuant to Section 6.4 to be an Unallocated Liability, and the reasonable out-of-pocket costs and expenses (including allocated costs of in-house counsel and other personnel) thereof shall be included in the calculation of the amount of the applicable Unallocated Liability in determining the reimbursement obligations of the other parties with respect thereto. (e) Schedule 1.1(146)(iii) indicates, to the extent so identifiable on the date hereof, the Party that shall be responsible for administering each item set forth therein and any special procedures to be applied in administering or allocating the Liability associated with each Unallocated Liability set forth therein.

Unallocated Liabilities. (a) As of the Effective TimeDistribution Date, Schedule 1.1(146)(iii1.1(142)(iii) sets forth all known Unallocated Liabilities and there shall be a presumption that any Liability not explicitly addressed in this Agreement or set forth in the Schedules hereto is, nevertheless, intended to be either a Power Liability or a Gas Liability. Such presumption may only be overcome by clear and convincing evidence to the contrary. (b) Each of Duke Energy and Spectra Energy GasCo shall be responsible for its Allocated Percentage of any Unallocated Liability. It shall not be a defense to any obligation by any party to pay any amount in respect of any Unallocated Liability that such party was not consulted in the defense thereof, that such party’s views or opinions as to the conduct of such defense were not accepted or adopted, that such party does not approve of the quality or manner of the defense thereof or that such Unallocated Liability was incurred by reason of a settlement rather than by a judgment or other determination of liability; provided, however, that neither Party shall settle an Unallocated Liability in a manner which would restrict or limit the future conduct of the other Party’s business or operations without such other Party’s consent. (c) As of the Effective TimeDistribution Date, all known Contingent Liabilities are identified in Schedules 1.1(581.1(54) and 1.1(601.1(56), and such Contingent Liabilities are either Power Liabilities or Gas Liabilities pursuant to Section 1.1(112)(vii1.1(120)(vii) and Section 1.1(69)(vi1.1(65)(vi), respectively. The respective Party assigned a Contingent Liability as an Exclusive Duke Energy Contingent Liability or an Exclusive Spectra Energy GasCo Contingent Liability shall be solely responsible for managing the defense of the claim, including, without limitation, whether to settle, and shall have sole responsibility, as between the Spectra Energy GasCo Group and the Duke Energy Group, for the costs, expenses, liabilities and judgments associated with the Action, notwithstanding that any member of the Spectra Energy GasCo Group (with respect to an Exclusive Duke Energy Contingent Liability) or any member of the Duke Energy Group (with respect to an Exclusive Spectra Energy GasCo Contingent Liability) may have been named or remained a party defendant to the Action. There shall be a presumption that any Contingent Liability not explicitly addressed in this Agreement or set forth in the Schedules hereto is, nevertheless, intended to be either a Power Liability or a Gas Liability. Such presumption may only be overcome by clear and convincing evidence to the contrary. (d) Contingent Liabilities not known as of the Effective TimeDistribution Date, or otherwise not included in Schedules 1.1(581.1(54) and 1.1(601.1(56), shall be referred to the Contingent Claim Committee for determination pursuant to the provisions of Section 6.4 of whether the Contingent Liability is an Exclusive Duke Energy Contingent Liability, an Exclusive Spectra Energy GasCo Contingent Liability or an Unallocated Liability (i) Any Contingent Liability determined by the Contingent Claim Committee pursuant to Section 6.4 to be an Exclusive Duke Energy Contingent Liability, shall be a Power Liability as provided in Section 1.1(112)(vii1.1(120)(vii), and shall be administered by Duke Energy and Duke Energy shall indemnify Spectra Energy GasCo from such Liability in accordance with ARTICLE VII. (ii) Any Contingent Liability determined by the Contingent Claim Committee pursuant to Section 6.4 to be an Exclusive Spectra Energy GasCo Contingent Liability, shall be a Spectra Energy GasCo Liability as provided in Section 1.1(69)(vi1.1(65)(vi), and shall be administered by Spectra Energy GasCo and Spectra Energy GasCo shall indemnify Duke Energy from such Liability in accordance with ARTICLE VII. (iii) Except as set forth in Schedule 1.1(146)(iii1.1(142)(iii), Duke Energy shall assume the defense of, and may seek to settle or compromise, any claim determined by the Contingent Claim Committee pursuant to Section 6.4 to be an Unallocated Liability, and the costs and expenses (including allocated costs of in-house counsel and other personnel) thereof shall be included in the calculation of the amount of the applicable Unallocated Liability in determining the reimbursement obligations of the other parties with respect thereto. (e) Schedule 1.1(146)(iii1.1(142)(iii) indicates, to the extent so identifiable on the date hereof, the Party that shall be responsible for administering each item set forth therein and any special procedures to be applied in administering or allocating the Liability associated with each Unallocated Liability set forth therein.