Exhibit 10.4
Execution Copy
FIRST
AMENDMENT
TO
TRANSITION
SERVICES AGREEMENT
THIS FIRST
AMENDMENT TO TRANSITION SERVICES AGREEMENT (this “
Amendment ”) is entered into as of January 1,
2007 (the “ Effective Date ”), by and between
Duke Energy Corporation, a Delaware corporation (“ Duke
Energy ”), and Spectra Energy Corp (f/k/a Gas SpinCo,
Inc.), a Delaware corporation (“ Spectra Energy
”), each a “ Party ” and together, the
“ Parties ”.
R E C I T A L S:
WHEREAS, the
Parties have entered into that certain Transition Services
Agreement dated as of December 13, 2006 (the “
Transition Services Agreement ”); and
WHEREAS, each Party
has determined that it is in the best interests of its stockholders
to amend the Transition Services Agreement as described in this
Amendment.
NOW, THEREFORE, in
consideration of the foregoing premises, the mutual promises and
covenants hereinafter set forth, and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties, intending to be legally bound, agree,
effective as of the Effective Date, as follows:
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1.
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Definitions. All capitalized
terms used herein and not otherwise defined herein shall have the
respective meanings set forth (or otherwise provided for) in the
Transition Services Agreement.
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2.
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Amendment to Defined Terms
“Duke Energy Services” and “Spectra Energy
Services”. Section 1 of the Transition Services
Agreement is hereby amended by deleting the defined terms
“Duke Energy Services” and “Spectra Energy
Services” in their entireties and substituting in lieu
thereof the following:
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“ Duke
Energy Services ” shall mean the limited enumerated
services described on Schedule A-1 , Schedule A-2,
Schedule A-3 of the Schedules to Transition Services Agreement
document attached hereto and each next consecutive Schedule
A through and including Schedule A-47 included
therein.
“ Spectra
Energy Services ” shall mean the limited enumerated
services described on Schedule B-1 , Schedule B-2,
Schedule B-3 of the Schedules to Transition Services Agreement
document attached hereto and each next consecutive Schedule
B through and including Schedule B-15 included
therein.
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3.
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Amendment to
Section 3.1(a) (Fees). Section 3.1(a) of the Transition
Services Agreement is hereby amended by adding the following clause
after the words “then the Fee applicable to such Service
shall be increased by 10% for the remainder of the applicable
Services Term” at the end of such Section:
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“;
provided , further , however , such 10%
increase shall not apply to the Fee applicable to any of the
Services described on Schedules A-3, A-4, A-6, A-7, A-11, A-13,
A-14, A-16, A-19, A-20, or A-36 of this
Agreement.”
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4.
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Amendment to Modify Schedule
A-22 (Spectra Energy Consolidations Assistance). The Schedules to
the Transition Services Agreement are hereby amended by deleting
the phrase “January 1, 2007 – March 31,
2007” under Part II of Schedule A-22 (Spectra Energy
Consolidations Assistance) in its entirety, and substituting in
lieu thereof the phrase “January 1, 2007—April 30,
2007”.
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5.
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Amendment to Modify Schedule
A-26 (Spectra Energy and DCP Midstream Payroll Accounting). The
Schedules to the Transition Services Agreement are hereby amended
by:
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(i) deleting the
first sentence of under Part I of Schedule A-26 (Spectra Energy and
DCP Midstream Payroll Accounting) in its entirety, and substituting
in lieu thereof the following: “Until Spectra Energy is
functional on PeopleSoft 8.9, Duke Energy will provide to Spectra
Energy both labor distribution and payroll tax accrual services,
provided that such services shall be limited to data relating to
dates or periods on or before March 31, 2007.”;
and
(ii) deleting the
phrase “January 1, 2007—March 31, 2007”
under Part II of Schedule A-26 (Spectra Energy and DCP Midstream
Payroll Accounting) in its entirety, and substituting in lieu
thereof the phrase “January 1, 2007—April 30,
2007”.
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6.
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Amendment to Modify Schedule
A-29 (Spectra Energy Corporate EHS Scientific Services Analytical
Services). The Schedules to the Transition Services Agreement are
hereby amended by:
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(i) deleting the
last sentence of Section 3) set forth in Part I of Schedule
A-29 (Spectra Energy Corporate EHS Scientific Services Analytical
Services) in its entirety, and substituting in lieu thereof the
following: “Contract employee oversight will be provided by
Douglas Dodds, who transferred from Duke Energy to Spectra Energy
effective 1/1/07.”;
(ii) deleting
Section 4) set forth in Part I of Schedule A-29 (Spectra
Energy Corporate EHS Scientific Services Analytical Services) in
its entirety, and substituting in lieu thereof the following:
“Pipeline Gas assay analysis and data entry into the Gas
Analysis System will be provided by a Contract employee under the
direction of Douglas Dodds.”; and
(iii) deleting the
following sentence under Part III of Schedule A-29 (Spectra Energy
Corporate EHS Scientif
