EXECUTION
VERSION
    
 ASSET
      PURCHASE AGREEMENT
                
                
                
                
                By and
      Between
                
                
                
                
                CALPINE
      CORPORATION
                
                
                
                
                AS
      SELLER
                
                
                
                
                And
                
                
                
                
                FIRSTENERGY
      GENERATION CORP.
                
                
                
                
                AS
      BUYER
                
                
                
                
                Dated as of
      January 28, 2008
 
   
  TABLE
OF CONTENTS
 Page
  ARTICLE 1 PURCHASE AND SALE OF
      THE ACQUIRED ASSETS
              5
  1.1.
              Transfer of Acquired
      Assets
              5
 1.2.
              Excluded
      Assets
              7
 1.3.
              Assumption of
      Liabilities
              9
 1.4.
              Excluded
      Liabilities
              10
 1.5.
              Non-Assignment of
      Assigned Contracts.
              10
  ARTICLE 2
      CONSIDERATION
              10
 2.1.
              Consideration
              10
 2.2.
              Deposits
              11
 2.3.
              Guaranty
              11
  ARTICLE 3 CLOSING AND
      DELIVERIES
              11
  3.1.
              Closing
              11
 3.2.
              Seller’s
      Deliveries
              11
 3.3.
              Buyer’s
      Deliveries
              12
  ARTICLE 4 REPRESENTATIONS AND
      WARRANTIES OF SELLER
              13
  4.1.
              Corporate
      Organization
              13
 4.2.
              Authorization and
      Validity
              13
 4.3.
              No Conflict or
      Violation
              13
 4.4.
              Governmental Consents
      and Approvals
              14
 4.5.
              Compliance with
      Law
              14
 4.6.
              Litigation
              14
 4.7.
              Material
      Contracts
              14
 4.8.
              Permits
              15
 4.9.
              Environmental
      Matters
              15
 4.10.
              Owned Real
      Property
              15
 4.11.
              Employee
      Benefits
              15
 4.12.
              Insurance
              16
 4.13.
              Utilities.
              16
  ARTICLE 5 REPRESENTATIONS AND
      WARRANTIES OF BUYER
              16
  5.1.
              Corporate
      Organization
              16
 5.2.
              Authorization and
      Validity
              16
 5.3.
              No Conflict or
      Violation
              17
 5.4.
              Consents, Approvals
      and Notifications
              17
 5.5.
              Availability of
      Funds
              17
 5.6.
              Adequate Assurances
      Regarding Assigned Contracts
              17
 5.7.
              Licenses, Permits,
      etc.
              17
 5.8.
              Investigation by
      Buyer
              18
   i
  ARTICLE 6 COVENANTS OF
      SELLER
              18
  6.1.
              Actions
      Before Closing
              18
 6.2.
              Maintenance of Assets
      Before the Closing Date
              19
 6.3.
              Sale
      Order
              19
 6.4.
              Consents and
      Approvals
              19
 6.5.
              Access to Properties
      and Records; Confidentiality
              20
 6.6.
              Rejection of Assigned
      Contracts
              20
 6.7.
              Further
      Assurances
              20
 6.8.
              Notices
              21
 6.9.
              Casualty
      Loss
              21
  ARTICLE 7 COVENANTS OF
      BUYER
              21
  7.1.
              Actions
      Before Closing Date
              21
 7.2.
              Consents,
      Approvals and Notifications
              21
 7.3.
              Adequate Assurances
      Regarding Assigned Contracts
              21
 7.4.
              Cure of
      Defaults
              22
 7.5.
              Availability
      of Business Records
              22
 7.6.
              Calpine
      Marks
              22
 7.7.
              Employee
      and Benefits Matters
              23
 7.8.
              Notices
              23
  ARTICLE 8 BANKRUPTCY
      PROCEDURES
              24
  8.1.
              Bankruptcy
      Actions
              24
 8.2.
              Consultation with
      Buyer
              24
  ARTICLE 9 REGULATORY
      MATTERS
              24
  9.1.
              Regulatory
      Filings
              24
 9.2.
              Cooperation;
      Confidentiality Agreement
              24
 9.3.
              Objections or Other
      Challenges
              25
 9.4.
              Permit
      Transfers
              25
  ARTICLE 10
      TAXES
              26
  10.1.
              Taxes Related to
      Purchase of Assets
              26
 10.2.
              Proration of Real and
      Personal Property Taxes
              26
 10.3.
              Cooperation on Tax
      Matters
              26
 10.4.
              Retention
      of Tax Records
              27
 10.5.
              Allocation of Purchase
      Price and Purchase Price Allocation Forms
              27
 10.6.
              Unbilled Transactional
      Taxes
              27
  ARTICLE
      11 CONDITIONS PRECEDENT TO PERFORMANCE BY
      PARTIES
              28
  11.1.
              Conditions
      Precedent to Performance by Seller and Buyer
              28
 11.2.
              Conditions Precedent
      to Performance by Seller
              28
 11.3.
              Conditions
      Precedent to the Performance by Buyer
              29
   ii
  ARTICLE
      12 TERMINATION AND EFFECT OF TERMINATION
                30
 12.1.
              Right of
      Termination
              30
 12.2.
              Termination Without
      Default
              30
 12.3.
              Effect
      of Failure of Seller’s Conditions to Closing
              31
 12.4.
              Effect
      of Failure of Buyer’s Conditions to Closing
              31
 12.5.
              Damages
              31
  ARTICLE 13
      MISCELLANEOUS
              32
  13.1.
              Successors and
      Assigns
              32
 13.2.
              Governing Law;
      Jurisdiction
              32
 13.3.
              Disclosure Schedule
      Supplements
              32
 13.4.
              Warranties
      Exclusive
              33
 13.5.
              Survival of
      Representations and Warranties
              33
 13.6.
              No Recourse Against
      Third Parties
              33
 13.7.
              Mutual
      Drafting
              34
 13.8.
              Expenses
              34
 13.9.
              Broker’s and Finder’s
      Fees
              34
 13.10.
              Severability
              34
 13.11.
              Notices
              34
 13.12.
              Amendments;
      Waivers
              36
 13.13.
              Schedules
              36
 13.14.
              Public
      Announcements
              36
 13.15.
              Entire
      Agreement
              36
 13.16.
              Parties
      in Interest
              37
 13.17.
              Headings
              37
 13.18.
              Construction
              37
 13.19.
              Currency
              37
 13.20.
              Time
      of Essence
              37
 13.21.
              Counterparts
              37
   ARTICLE 14
      DEFINITIONS
              38
  14.1.
              Certain Terms
      Defined
              38
 14.2.
              All Terms
      Cross-Referenced
              44
 
  iii
  
 
 EXHIBITS
 Exhibit
      A
                  GuarantyExhibit
      B-1
                  Form of Bill of
      SaleExhibit
      B-2
                  Form of Assignment and
      Assumption AgreementExhibit B-3
                  Form of
    DeedExhibit
      B-4
                  Form of Non-Fee Property
      Assignment and Conveyance AgreementExhibit
      B-5
                  Form of Seller’s
      Officer’s CertificateExhibit
      B-6
                  Form of Non-Foreign
      Status CertificateExhibit C
                  ReservedExhibit
      D
                  Form of Sale
      OrderExhibit
      E
                  Bidding Procedures
Order
  
 DISCLOSURE
SCHEDULES
  Schedule1.1(a)
              Owned Real PropertySchedule1.1(b)
              Real Estate LeasesSchedule1.1(d)
              Entitled Real PropertySchedule1.1(d)
              EquipmentSchedule1.1(e)
              Supplier ContractsSchedule 1.1 (f)
              Other ContractsSchedule1.1(g)
              InventorySchedule1.1(i)
              PermitsSchedule1.2(l)
              Calpine MarksSchedule1.2(r)
              Excluded AssetsSchedule1.4
              Excluded LiabilitiesSchedule 4.4
              Governmental Consents and ApprovalsSchedule4.5
              Compliance with LawSchedule4.6
              LitigationSchedule4.7
              Material ContractsSchedule4.8
              License and Permit ExceptionsSchedule4.9
              Environmental MattersSchedule 4.11
              Employee Benefits PlansSchedule 4.13
              UtilitiesSchedule7.4
              Cure AmountsSchedule11.1(b)
              Regulatory ApprovalsSchedule14.1
              Permitted Liens
   iv




ASSET
PURCHASE AGREEMENT




THIS ASSET PURCHASE
AGREEMENT (this “Agreement”),
dated as of January 28, 2008, is made by and between Calpine Corporation, a
Delaware corporation (the “Seller”), and FirstEnergy
Generation Corp., an Ohio corporation (the “Buyer”).  Capitalized
terms used in this Agreement are defined or cross-referenced in Article
14.




BACKGROUND
INFORMATION




WHEREAS, on December
20, 2005 Seller and its debtor Affiliates, filed voluntary petitions for relief
under the Bankruptcy Code in the Bankruptcy Court;




WHEREAS, Seller has
determined it is in its best interest to sell the partially completed power
plant located in Fremont, Ohio, which previously did business as Fremont Energy
Center LLC;




WHEREAS, on the
terms and subject to the conditions set forth in this Agreement, Buyer desires
to purchase from Seller, and Seller desires to sell to Buyer, the Acquired
Assets, in a sale authorized by the Bankruptcy Court pursuant to, inter alia, sections 105,
363, and 365 of the Bankruptcy Code;




WHEREAS, it is
intended that the acquisition of the Acquired Assets would be accomplished
through the sale, transfer and assignment of the Acquired Assets by Seller to
Buyer;




WHEREAS, Buyer also
desires to assume, and Seller desires to assign and transfer to Buyer, the
Assumed Liabilities;




NOW, THEREFORE, in
consideration of the foregoing and their respective representations, warranties,
covenants and undertakings herein contained, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Seller and Buyer hereby agree as follows:






ARTICLE
1


PURCHASE
AND SALE OF THE ACQUIRED ASSETS




1.1.  Transfer of Acquired
Assets .  At the
Closing, and upon the terms and conditions herein set forth, Seller shall sell
to Buyer, and Buyer shall acquire from Seller, all of Seller’s right, title and
interest in, to and under the Acquired Assets free and clear of all Liens,
claims and other interests (except for Permitted Liens and Assumed Liabilities)
pursuant to sections 105, 363 and 365 of the Bankruptcy Code. “Acquired
Assets” shall mean solely the following property, but shall exclude the
Excluded Assets:







5





(a)  the real property
owned by Seller and listed on Schedule1.1(a)of the disclosure schedules accompanying this
Agreement (the “Disclosure
Schedules”), together with any Improvements owned by Seller erected
thereon (the “Owned Real
Property”);




(b)  all of Seller’s
rights under the leases of real property (the “Real Estate
Leases”) listed on Schedule1.1(b)of the Disclosure Schedules (the real property
leased by Seller pursuant to the Real Estate Leases, the “Leased Real
Property”);




(c)  all of Seller’s
rights under the easements, rights of way, real property licenses, and other
real property entitlements listed on Schedule1.1(c)
of the Disclosure Schedules (the “Entitled Real
Property” and, together with the Owned Real Property and the Leased Real
Property, the “Real
Property”);




(d)  all of
(i) Seller’s owned equipment, spare
parts, machinery, furniture, fixtures, and other personal property used
exclusively in the Power Plant, located on the Real Property or listed on Schedule1.1(d)
(the “Equipment”);
and (ii) any rights of Seller, to the extent transferable, to the warranties and
licenses received from manufacturers and sellers of the Equipment (if
any);




(e)  all of
Seller’s rights under outstanding
purchase orders or other similar Contracts used exclusively in connection with
the Power Plant entered into by Seller with any supplier that are listed on
Schedule1.1(e)
of the Disclosure Schedules (“Supplier
Contracts”);




(f)  all of Seller’s
rights under the Contracts (including rights to transmission credits, if any),
and Contracts with respect to the development of the Power Plant that are listed
on Schedule1.1(f)
of the Disclosure Schedules (the “Other
Contracts”
and, together with the Real Estate Leases, and the Supplier Contracts, the
“Assigned
Contracts”);




(g)  all (i) inventories
of chemicals and gases, supplies, materials and spares located at or in transit
to the Real Property and owned by Seller on the Closing Date that are used
exclusively for the Power Plant or as listed on Schedule1.1(g)(the “Inventory”) and (ii) any rights of
Seller, to the extent transferable, to the warranties received from suppliers
with respect to such Inventory;




(h)  any computer
software or systems located at the Owned Real Property and owned exclusively by
Seller and licenses held exclusively by Seller including, but not limited to,
Seller’s Target Solutions inventory control software, solely to the extent
transferable, in each case that pertain solely to the Power Plant;







6





(i)  to the
extent transferable under applicable Law, all rights of Seller under the permits,
authorizations, approvals, registrations, and licenses relating exclusively to
the Power Plant issued by any Government (and pending applications for the
foregoing) listed on Schedule1.1(i)
of the Disclosure Schedules (“Permits”);




(j)  copies,
including copies in electronic form, of all Business Records, including
engineering plans and contracts for the development of the Power
Plant;  documents, blueprints, as built plans, specifications, quality
assurance records, inventory records, purchasing reports, and equipment repair,
maintenance and service records of Seller relating to the design, construction,
licensing or operation of the Power Plant, operating safety and maintenance
manuals, inspection reports and environmental assessments.




(k)  rights
to and goodwill represented by the name Fremont Energy Center; provided, that
nothing in
this Section1.1(k)
will give Buyer any rights to any name that includes a Calpine
Mark;




(l)  all assets to be
acquired by Buyer pursuant to this Agreement.




(m)  the Power
Plant, and




(n)  if any,
Seller’s rights to any Emissions Allowances relating to the Power
Plant.




1.2. Excluded
Assets .  Notwithstanding
anything to the contrary in this Agreement,
the Acquired Assets are the only properties and assets transferred to Buyer
under this Agreement.  Without limiting the generality of the
foregoing, the Acquired Assets do not include (i) any right, title or interest
of any Person other than Seller in any property or asset, and (ii) the
properties and assets of Seller listed or described in this Section1.2
(all properties and assets not being acquired by Buyer are herein referred to as
the “Excluded
Assets”):




(a)  all of Seller’s cash
and cash equivalents, marketable securities, prepaid expenses, advance payments,
surety accounts, deposits and other similar prepaid items (including for the
purchase of natural gas);




(b)  all of Seller’s
accounts and notes receivable as of 11:59 p.m. (local time) on the Closing Date,
if any (the “Accounts
Receivable“);




(c)  assets, property and
other rights held or owned by Calpine and its Affiliates that is (i) not located
on the Real Property and (ii) is not used exclusively by Seller in the
development oroperation of the Power
Plant;







7





(d)  forecasts, financial
information or financial statements and proprietary manuals (except rights to
use manuals specific to and necessary for the operation of the Power Plant)
prepared by or used by Seller or its Affiliates to the extent not relating
exclusively to the Power Plant;




(e)  all of Seller’s
rights under Contracts that are not Assigned Contracts;




(f)  all rights to
Claims, refunds or adjustments, and all other refunds or adjustments with
respect to Excluded Assets relating to any proceeding before any Government
relating to the period prior to the Closing and all rights to insurance proceeds
or other insurance recoveries (i) that relate to, or are reimbursement for,
Seller’s or Seller’s Affiliate’s expenditures made prior to the Closing Date or
(ii) to the extent relating to Excluded Assets or Excluded
Liabilities;




(g)  any asset of Seller
that would constitute an Acquired Asset (if owned by Seller on the Closing Date)
that is conveyed or otherwise disposed of during the period from the date hereof
until the Closing Date either (i) at the direction of the Bankruptcy Court or
(ii) as otherwise permitted by the terms of this Agreement;




(h)  all losses, loss
carry forwards and rights to receive refunds, credits and loss carry forwards
with respect to any and all Taxes of Seller incurred or accrued on or prior to
the Closing Date, including interest receivable with respect
thereto;




(i)  any and all rights,
demands, claims, credits, allowances, rebates, causes of action, known or
unknown, pending or threatened (including all causes of action arising under
sections 510, 544 through 551 and 553 of the Bankruptcy Code or under similar
state Laws including fraudulent conveyance claims, and all other causes of
action of a trustee and debtor-in-possession under the Bankruptcy Code) or
rights of set-off (collectively, “Claims”),
of Seller or any Affiliate of Seller arising out of or relating to events prior
to the Closing Date (except to the extent relating to the Assumed Liabilities),
including but not limited to Claims arising out of or relating in any way to the
Chapter 11 Case or any of the transactions contemplated thereby or entered into
as a consequence thereof, including any claims (as defined in section 101(5) of
the Bankruptcy Code) filed, scheduled or otherwise arising in the Chapter 11
Case;




(j)  all shares of
capital stock or other equity interests of Seller and all Affiliates of
Seller;




(k)  all
rights of Seller arising under this Agreement and under any other agreement
between Seller and Buyer entered into in connection with this
Agreement;




(l)  all
rights to or goodwill represented by or pertaining to all names, marks, trade
names, trademarks and service marks incorporating the name Calpine or any other
name set forth on Schedule1.2(l)
(the
“Calpine
Marks”) and any brand names or derivatives thereof no matter how used,
whether as a corporate name, domain name or otherwise and including the
corporate design logo associated with any Calpine Mark or variant of any Calpine
Mark other than Fremont Energy Center;







8





(m)  all rights
under any Contract, except an Assigned Contract, that has been guaranteed by
Seller or an Affiliate of Seller or to which Seller is a party;




(n)  all rights under any
Contract, except an Assigned Contract, that is, at the time of Closing, secured
by any collateral owned by Seller’s Affiliates, Excluded Assets, or letters of
credit;




(o)  all Retained Books
and Records;




(p)  all of Seller’s
rights to recovery of collateral given to obtain letters of credit and rights to
recover amounts drawn or paid on letters of credit;




(q)  all amounts due to
Seller from any Affiliate of Seller and all rights and Claims of Seller against
any Affiliate of Seller; and




(r)  any assets set forth
on Schedule1.2(r)of the Disclosure Schedules.




1.3. Assumption of
Liabilities .  At the
Closing, Buyer shall assume, and Buyer shall hereafter pay, perform and
discharge when due, the liabilities and obligations of Seller related to the
Power Plant as listed below (collectively, the “Assumed
Liabilities”):




(a)  all liabilities and
obligations of Seller under the Assigned Contracts arising after the Closing
Date and the cure costs for such Assigned Contracts as set forth on Schedule
7.4;




(b)  all liabilities and
obligations of Seller under the Permits arising after the Closing
Date;




(c)  to the extent
provided in Article 10, all liabilities and obligations of Seller for
Transaction Taxes payable in connection with the transactions contemplated by
this Agreement;




(d)  to the extent
provided in Article 10, all liabilities and obligations for real estate Taxes
and assessments with respect to the Acquired Assets that are not yet due and
payable and all liabilities and obligations for any Taxes relating to the
Acquired Assets for periods after the Closing Date;




(e)  all liabilities and
obligations of Seller, any of its Affiliates or any of their respective Related
Persons arising under or relating to any environmental, health or safety matter
(including any liability or obligation arising under any Environmental Law)
relating to the Power Plant and the Acquired Assets arising after the Closing
Date; and




(f)  all liabilities and
obligations relating to or arising from the completion of construction or the
ownership of the Power Plant and the Acquired Assets after the Closing
Date.







9





Excluded Liabilities Excluded
Liabilities




1.5. Non-Assignment of Assigned
Contracts. Anything
contained herein to the contrary notwithstanding, (i) this Agreement shall not
constitute an agreement to assign any Assigned Contract if, after giving effect
to the provisions of sections 363 and 365 of the Bankruptcy Code, an attempted
assignment thereof, without obtaining a Consent, would constitute a breach
thereof or in any way negatively affect the rights of Seller or Buyer, as the
assignee of such Assigned Contract and (ii) no breach of this Agreement shall
have occurred by virtue of such nonassignment.  If, after giving
effect to the provisions of sections 363 and 365 of the Bankruptcy Code, such
Consent is required but not obtained, Seller shall, at Buyer’s sole cost and
expense, cooperate with Buyer in any reasonable arrangement, including Buyer’s
provision of credit support, designed to provide for Buyer the benefits and
obligations of or under any such Assigned Contract, including enforcement for
the benefit of Buyer of any and all rights of Seller against a third party
thereto arising out of the breach or cancellation thereof by such third party;
provided, that nothing in this
Section1.5
shall (x) require Seller to make any significant expenditure or incur any
significant obligation on its own or on Buyer’s behalf or (y) prohibit Seller
from ceasing operations or winding up its affairs following the
Closing.  Any assignment to Buyer of any Assigned Contract that shall,
after giving effect to the provisions of sections 363 and 365 of the Bankruptcy
Code, require the Consent of any third party for such assignment as aforesaid
shall be made subject to such Consent being obtained.  Any contract
that would be an Assigned Contract but is not assigned in accordance with the
terms of this Section 1.5 shall not be considered an “Assigned Contract” for
purposes hereof unless and until such contract is assigned to Buyer following
the Closing Date upon receipt of the requisite consents to assignment and
Bankruptcy Court approval.






ARTICLE
2


CONSIDERATION




2.1.  Consideration .  The
aggregate consideration for the sale and transfer of the Acquired Assets shall
be (a) $253,600,000 in cash (the “Purchase
Price”), which price is payable and deliverable at the Closing in
accordance with Section3.3and (b) the assumption by Buyer of the
Assumed Liabilities.







10





2.2.  Deposits .  Buyer
and Seller have executed and delivered the Purchase Notice, and Buyer has
deposited with the Escrow Agent $12,400,000 (the “Deposit”).  The
Deposit shall be held and disbursed pursuant to the terms of the Master Escrow
Agreement, the Purchase Notice, and this Agreement.




2.3.  Guaranty .  On the
date hereof, the Guarantor has executed and delivered to Seller the Guaranty
substantially in the form of Exhibit A hereto.






ARTICLE
3


CLOSING
AND DELIVERIES




3.1.  Closing .  The
consummation of the transactions contemplated hereby (the “Closing”)
shall take place at the offices of
Kirkland & Ellis LLP, 153 East 53rd Street, New York, New York at 10:00
a.m. EST on the third Business Day following the satisfaction or waiver by the
appropriate party of all the conditions contained in Article
11 hereof, or on such other date or at such other place and time as
may be agreed to by the parties hereto (the “Closing
Date”).  The Closing will be deemed to be effective at 11:59
p.m. (local time) on the Closing Date.




3.2.  Seller’s
Deliveries




(a)  The sale, transfer,
assignment and delivery by Seller of the Acquired Assets to Buyer, as herein
provided, shall be effected on the Closing Date.  At the Closing,
Seller shall deliver to Buyer the following documents which shall be consistent
with the terms of this Agreement:




(i)  a bill of sale with
respect to the Acquired Assets (other than the Assigned Contracts, Permits, Real
Property and assets set forth in Sections 1.1(d)(ii) and 1.1(g)(ii)), duly
executed by Seller and in the form of Exhibit B-1 hereto




(ii)  an assignment and
assumption agreement with respect to the Assigned Contracts and Assumed
Liabilities, duly executed by Seller and in the form of Exhibit B-2
hereto;




(iii)  the Business Records
(it being understood that any Business Records located at the Power Plant need
not be physically delivered, but shall be deemed delivered at the Closing),
provided that, for any Business Records not located at the Power Plant, Seller
shall be entitled to deliver such Business Records to Buyer promptly after the
Closing Date;







11





(iv)  the deeds with
respect to the Owned Real Property, duly executed by Seller and in the form of
Exhibit B-3 hereto;




(v)  an assignment and
conveyance agreement with regard to the Real Estate Leases, duly executed by
Seller and in the form of Exhibit B-4 hereto;




(vi)  a secretary’s
certificate certifying as to the resolutions of the board of directors of Seller
approving and authorizing this Agreement and the transactions contemplated by
this Agreement and in the form of Exhibit B-5 hereto;




(vii)  an affidavit of
non-foreign status that complies with section 1445 of the Code, duly executed by
Seller and in the form of Exhibit B-6 hereto.




(b)  Notwithstanding
anything in this Agreement or any Ancillary Agreement to the contrary, Seller’s
obligation to convey to Buyer all rights of Seller under the Permits listed on
Schedule 1.1(i)
shall consist of providing: (i) if required by Law, notices of intent to
transfer the Permit to Buyer in accordance with the Government regulations
governing such Permit transfer, (ii) information as required by the Government
regulations governing such Permit transfer and (iii) assistance to Buyer in
obtaining the transfer of such Permits in accordance with Section
6.7.




3.3.  Buyer’s
Deliveries .  On the
Closing Date, in payment for the Acquired Assets:




(a)  the Escrow Agent
shall pay to Seller the Deposit in accordance with the terms of the Master
Escrow Agreement and the Purchase Notice, by wire transfer of immediately
available funds to a bank account designated by Seller in writing to Buyer (the
“Seller’s
Account”);




(b)  Buyer shall pay to
Seller the Purchase Price, reduced by the amount of the Deposit paid pursuant to
Section3.3(a),by wire transfer of immediately available funds to
Seller’s Account;




(c)  Buyer shall execute
and deliver to Seller an instrument of assumption of liabilities with respect to
the Assumed Liabilities substantially in the form of the Assumption Agreement
attached as Exhibit
B-2 hereto; and




(d)  Buyer shall execute
and deliver to Seller an assignment and conveyance agreement with regard to the
Real Estate Leases, in the form of Exhibit B-4 hereto.







12







ARTICLE
4


REPRESENTATIONS
AND WARRANTIES OF SELLER




With respect to the
Acquired Assets and the Power Plant, Seller hereby represents and warrants to
Buyer as follows, except in all cases as disclosed in the Disclosure Schedules,
as the same may be amended or modified in accordance with Section13.3
hereof:




4.1.  Corporate
Organization .  Seller
is duly organized and validly existing under the Laws of the jurisdiction of its
organization.  Subject to any necessary authority from the Bankruptcy
Court, Seller has all requisite power and authority to own its properties and
assets and to conduct its business as now conducted and to perform all of its
obligations under this Agreement.




4.2.  Authorization and
Validity .  Subject
to the Bankruptcy Court’s entry of the Sale Order and the receipt of the Consents set
forth on Schedule4.4
of the Disclosure Schedules, Seller has all requisite power and authority to
enter into this Agreement and the Purchase Notice to which it is or will be a
party and, to carry out its obligations hereunder and
thereunder.  Subject to the entry of the Sale Order, the execution and
delivery of this Agreement and the Purchase Notice and the performance by Seller
of its obligations hereunder and thereunder have been duly authorized by all
necessary action by the board of directors of Seller, and no other proceedings
on the part of Seller are necessary to authorize such execution, delivery and
performance.  This Agreement and the Purchase Notice have been duly
executed by Seller and, subject to the Bankruptcy Court’s entry of the Sale
Order, constitutes its valid and binding obligation, enforceable against it in
accordance
with the
terms herein and therein.




4.3.  No Conflict or
Violation .  Subject
to (a) the receipt of all Consents set forth on Schedule 4.4
of the Disclosure Schedules and (b) the Bankruptcy Court’s entry of the
Sale Order, the execution, delivery and performance by Seller of this Agreement
do not and will not (i) violate or conflict with any provision of the
bylaws or certificate of incorporation (or equivalent organizational documents)
(collectively, the “Organizational
Documents”) of Seller, (ii) violate any provision of law,
regulation, rule or other legal requirement of any Government (“Law”) or
any order, judgment or decree of any court or Government (“Order”)
applicable to Seller, or (iii) violate or result in a breach of or
constitute (with due notice or lapse of time or both) a default under any
Assigned Contract, which violation, conflict, breach or default in any such case
would reasonably be expected to have a Material Adverse
Effect.







13





4.4.  Governmental Consents and
Approvals .  Schedule4.4of the Disclosure Schedules sets forth a true and
complete list of each Consent and each declaration to or filing or registration
with any Government that is required in connection with the execution and
delivery of this Agreement and the Purchase Notice by Seller or the performance
by Seller of its obligations hereunder or thereunder, the failure of which to
obtain would reasonably be expected to have a Material Adverse
Effect.




4.5.Compliance
with Law.  Except
as set forth on Schedule4.5
of the Disclosure Schedules and as may result from the Chapter 11 Case, since
December 31, 2002, Seller has not received written notice of any violation of
any Law (other than with respect to Environmental Law, as to which the only
representations and warranties made by Seller are those contained in Section4.9)
with respect to the Power Plant, nor is Seller in default with respect to any
Order, applicable to any of the Acquired Assets, other than violations and
defaults the consequences of which would not reasonably be expected to have a
Material Adverse Effect.




4.6Litigation .  As of the date of this Agreement and except as
set forth on Schedules4.6or4.9of the Disclosure Schedules, there are no
Claims, suits or proceedings pending or, to the Knowledge of Seller, threatened
in writing, before any Government brought by or against Seller that, if
adversely determined, could reasonably be expected to have a Material Adverse
Effect or materially impair the ability of Seller to consummate the transactions
contemplated by this Agreement.




4.7.  Material
Contracts


(a)  Schedule4.7of the Disclosure Schedules sets forth a complete and
correct list of each of the Assigned Contracts that:\
  (i)creates
      a right to lease, use or occupy real estate that is material to the Power
      Plant or the Acquired Assets;
or
  (ii)the
      consequences of a default under or termination of such Assigned Contract
      would reasonably be expected to have a Material Adverse Effect
      (collectively, the “Material
      Contracts”).
  (b)Other
than as set forth on Schedule4.7
of the Disclosure Schedules, neither Seller nor, to Seller’s Knowledge, any
other party to any of the Material Contracts has commenced any action against
any of the parties to such Material Contracts or given or received any written
notice of any material default or violation under any Material Contract that was
not withdrawn or dismissed, except only for those defaults that will be cured in
accordance with the Sale Order (or that need not be cured under the Bankruptcy
Code to permit the assumption and assignment of the Assigned
Contracts).  To Seller’s Knowledge, each of the Material Contracts is,
or will be at the Closing, valid, binding and in full force and effect against
Seller, except as otherwise set forth on Schedule4.7
of the Disclosure Schedules.





14





4.8.  Permits.  Schedule4.8(a) of
the Disclosure Schedules sets forth a complete and correct list of all material
Permits and all pending applications therefor obtained by Seller in connection
with the Power Plant or the Acquired Assets.  As of the date of this
Agreement, except as set forth on Schedule4.8(b) and
as would not reasonably be expected to have a Material Adverse Effect, each such
Permit is valid and in full force and effect, and is not subject to any pending
or, to Seller’s Knowledge, threatened administrative or judicial proceeding to
revoke, cancel, suspend or declare such Permit invalid in any
respect.




4.9.Environmental
Matters.  To
Seller’s Knowledge, except as set forth on Schedule4.9
of the Disclosure Schedules:




(a)Seller
is in compliance with applicable Environmental Laws applicable to the Power
Plant, except where such non-compliance would not reasonably be expected to have
a Material Adverse Effect.




(b)Since
December 31, 2002, Seller has not received a written complaint, Order,
directive, Claim, request for information, citation or notice of violation from
any Government or any other Person relating to any actual or alleged
noncompliance with or liability under any Environmental Law with respect to any
release, spill, leak, discharge or emission of any Hazardous Materials to the
air, surface water, groundwater or soil of the Real Property, except where such
matter would not reasonably be expected to have a Material Adverse
Effect.




(c)The
representations and warranties contained in this Section4.9 are
the only representations and warranties made by Seller with respect to matters
arising under Environmental Laws or relating to Hazardous
Materials.




4.10.Owned Real
Property .  Schedule1.1(a)of the Disclosure Schedules sets forth a complete and
correct list of all material real property owned in whole or in part (and states
the ownership percentage of all partially owned real property) by Seller and
used in connection with the operation of the Power Plant.  Seller has
made available to Buyer, to the extent within Seller’s possession or control, a
copy of all certificates of occupancy for the Owned Real Property and a copy of
any variance granted with respect to the Owned Real Property pursuant to
applicable zoning laws or ordinances, all of which documents are true and
complete copies thereof.  Seller has made available to Buyer all
material existing surveys or topographical maps for the Owned Real Property,
title policies, engineering reports and Environmental Reports in Seller’s
possession or control.




4.11. Employee
Benefits .  Set
forth on Schedule
4.11 of the Disclosure Schedules is a list of all Employee Benefit Plans
which Seller maintains or to which Seller contributes for the
Employee.







15





4.12. Insurance .  All
material policies of property, damage, fire, liability, workers’ compensation
and other forms of insurance owned or held by Seller and insuring the Acquired
Assets are in full force and effect, all premiums with respect thereto covering
the periods up to the date as of which this representation is being made have
been paid, and no written notice of cancellation, non-renewal or termination has
been received with respect to any such policy which has not replaced on
substantially similar terms prior to the date of such cancellation.




4.13. Utilities. Seller
has no Knowledge of and has not received any notice of the curtailment of any
utility service supplied to the Real Property.  Except as set forth on
Schedule 4.13, to Seller’s Knowledge, all water and all electrical,
telecommunication, sanitary and storm sewer and drainage lines, systems and hook
ups located upon, under, at or adjacent to the Real Property necessary for the
operation of the facilities as currently contemplated and for construction of
the Power Plant are installed and connected under valid permits.






ARTICLE
5


REPRESENTATIONS
AND WARRANTIES OF BUYER




Buyer hereby
represents and warrants to Seller as follows, except in all cases as disclosed
in the Disclosure Schedules.




5.1.  Corporate
Organization .  Buyer
is an Ohio corporation, duly organized, validly existing and in good standing
under the Laws of the jurisdiction of its incorporation, and has all requisite
power and authority to own its properties and assets and to conduct its business
as now conducted.




5.2.  Authorization and
Validity .  Buyer
has all requisite power and authority to enter into this Agreement and to
execute and deliver the Purchase Notice and to carry out its obligations
hereunder and thereunder.  The execution and delivery of this
Agreement and the Purchase Notice and the performance of Buyer’s obligations
hereunder and thereunder have been duly authorized by all necessary action by
the board of directors of Buyer, and no other proceedings on the part of Buyer
are necessary to authorize such execution, delivery and
performance.  This Agreement and the Purchase Notice have been duly
executed by Buyer and constitutes its valid and binding obligation, enforceable
against it in accordance with the terms herein and therein, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or other similar laws
affecting or relating to the enforcement of creditors’ rights generally and
subject, as to enforceability, to general principles of equity.







16





5.3.  No Conflict or
Violation .  The
execution, delivery and performance by Buyer of this Agreement and the execution
and delivery of the Purchase Notice does not and will not violate or conflict
with any provision of the Organizational Documents of Buyer and does not and
will not violate any provision of Law, or any Order applicable to Buyer, nor
will it result in a breach of or constitute (with due notice or lapse of time or
both) a default under any Material Contract to which Buyer is a party or by
which it is bound or to which any of its properties or assets is
subject.




5.4.  Consents, Approvals and
Notifications .  The
execution, delivery and performance of this Agreement and the Purchase Notice by
Buyer does not require the Consent of, or filing with or notification of, any
Government or any other Person except:  (a) for the Regulatory
Approvals listed on Schedule 11.1(b) of
the Disclosure Schedules; (b) for entry of the Sale Order by the Bankruptcy
Court; or (c) for such Consents and filings, the failure to obtain or make
would not reasonably be expected to have a material adverse effect on the
ability of Buyer to consummate the transactions contemplated
hereby.




5.5.  Availability of
Funds .  Buyer
(a) has, and on the Closing Date will have, sufficient funds available to
finance and consummate the transactions contemplated by this
Agreement.




5.6.  Adequate Assurances
Regarding Assigned Contracts .  Buyer
is and will be capable of satisfying the conditions contained in sections
365(f)(2)(B) of the Bankruptcy Code with respect to the Assigned
Contracts.




5.7. Licenses, Permits,
etc. Buyer
has, or will have as of the Closing Date, all licenses, permits, franchises and
authority, whether from a Government or otherwise, including Regulatory
Approvals, and has provided any requisite notice to customers necessary to
purchase the Acquired Assets and to assume the Assumed Liabilities.







17





5.8. Investigation by
Buyer .  Buyer
has conducted its own independent review and analysis of (i) the Acquired Assets
and the Power Plant (including the business, operations, technology, financial
condition and prospects related to the operation of the Acquired Assets and the
Power Plant), (ii) the Assumed Liabilities and (iii) the value of such Acquired
Assets. Buyer acknowledges that Seller has provided Buyer with access to the
personnel, properties, premises and records of the Acquired Assets for this
purpose.  Buyer has conducted its own independent review of all Orders
of, and all motions, pleadings, and other submissions to, the Bankruptcy Court
in connection with the Chapter 11 Case.  Buyer acknowledges that the
price being paid under this Agreement for the Acquired Assets is the fair value
for acquiring the Acquired Assets under the circumstances and that such value,
rather than replacement cost, is the appropriate measure of damages if and to
the extent Buyer may have had any recourse for any failure to deliver the
Acquired Assets in accordance with the terms of this Agreement.  In
entering into this Agreement, Buyer has relied solely upon its own investigation
and analysis, and Buyer acknowledges that (a) neither Seller nor any of its
Related Persons or Affiliates makes or has made any representation or warranty,
either express or implied, as to the accuracy or completeness of any of the
information provided or made available to Buyer or any of its Related Persons or
Affiliates, except as and only to the extent expressly set forth inArticle
4(which are subject to the
limitations and restrictions contained in this Agreement), and (b) to the
fullest extent permitted by Law, neither Seller nor any of its Related Persons
or Affiliates shall have any liability or responsibility whatsoever to Buyer or
its Related Persons or Affiliates on any basis (including in contract or tort,
under securities Laws or otherwise) based upon any information provided or made
available, or statements made, to Buyer or Related Persons or Affiliates (or any
omissions therefrom), including in respect of the specific representations and
warranties of Seller set forth in this Agreement, except, with regard to Seller,
as and only to the extent expressly set forth inArticle
4(which are subject to the
limitations and restrictions contained in this Agreement).  Buyer has
no knowledge of any condition, event or circumstance that constitutes a breach
of any representation, warranty or covenant of Seller in this
Agreement.






ARTICLE
6


COVENANTS
OF SELLER




Seller hereby
covenants to Buyer as follows:




6.1.  Actions Before
Closing .  Seller
shall use commercially reasonable efforts to perform and satisfy all conditions
to Buyer’s obligations to consummate the transactions contemplated by this
Agreement that are to be performed or satisfied by Seller under this
Agreement.







18





6.2.  Maintenance of Assets Before
the Closing Date




(a)  Without the prior
written consent of Buyer or the authorization of the Bankruptcy Court, after
notice and a hearing, between the date hereof and the Closing Date, Seller shall
not, except as required or expressly permitted pursuant to the terms hereof or
of any Ancillary Agreement, (i) make any material change in the Acquired Assets,
taken as a whole, or (ii) enter into any material transaction other than in the
Ordinary Course of Business consistent with past practices.  Without
limitation of the foregoing, except as may be required by the Bankruptcy Court,
from the date hereof until the Closing, Seller shall use commercially reasonable
efforts to maintain the Acquired Assets in substantially the same manner as
conducted by Seller in the Ordinary Course of Business, taking into account
business exigencies arising as a result of Seller’s financial condition and
status as a filer under Chapter 11 of the Bankruptcy Code.




(b)  Without limiting the
generality of Section 6.2(a), prior to the Closing Seller shall not, and shall
not permit its Affiliates to, without the prior written consent of Buyer: (i)
sell, lease or transfer any of the Acquired Assets or parts thereof, (ii) amend,
modify, terminate or change in any material respects any Assigned Contract,
(iii) fail to maintain in full force and effect insurance policies covering the
Acquired Assets, in form and amount consistent with past practice or (iv) grant
a consensual Lien (other than a Permitted Lien) on the Acquired
Assets.




(c)  In the event Seller
is directed by the Bankruptcy Court to convey or dispose of an asset that would
be an Acquired Asset, Calpine shall either provide the proceeds of such asset
conveyance to Buyer or reduce the Purchase Price by the fair market value of
such asset.




6.3.  Sale
Order .  Seller
shall use commercially reasonable efforts to obtain entry by the Bankruptcy
Court of an Order in the form of Exhibit D hereto (the
“Sale
Order”).




6.4.  Consents and
Approvals .  Seller
shall use commercially reasonable efforts to obtain all necessary material
consents, waivers, authorizations and approvals of all Governments, and of all
other Persons, required to be obtained by Seller in connection with the
execution, delivery and performance by them of this Agreement.







19





6.5.  Access to Properties and
Records; Confidentiality .  Seller
shall afford to Buyer, and to the accountants, counsel and representatives of
Buyer, reasonable access during normal business hours
throughout the period prior to the Closing Date (or the earlier termination of
this Agreement pursuant toArticle
12) to all books and records of Seller
relating to the Acquired Assets and the Power Plant if (w) permitted under Law
(x) such books and records are not subject to confidentiality agreements, (y)
disclosing such books and records would not adversely affect any attorney
client, work product or similar privilege and (z) such books and records do not
relate to any confidential proprietary models or other information of Seller or
any of its Affiliates pertaining to energy project evaluation, energy or natural
gas price curves or projections or other economic or other predictive
models.  Upon reasonable prior notice, Seller shall also afford Buyer
reasonable access, during normal business hours, to all Acquired Assets
throughout the period prior to the Closing Date.  The rights of access
contained in this Section6.5are granted subject to, and on, the following terms
and conditions:  (A) any such investigation shall not include
physical testing or samplings; (B) during the period from the date hereof
to the Closing Date, all information provided to Buyer or its agents or
representatives by or on behalf of Seller or their agents or representatives
(whether pursuant to this Section6.5or otherwise) shall be governed by and subject to the
Confidentiality Agreement, dated as of May 24, 2007, by and among Buyer
and  Seller (the “Confidentiality
Agreement”); (C) such rights of access shall not affect or modify
the conditions set forth inArticle
11in any way; and (D) all such
rights of access shall be at Buyer’s sole cost, expense and risk; and Buyer
shall indemnify Seller for any damages, suits, claims, proceedings, fines,
judgments, costs or expenses (including attorneys’ fees and incidental,
consequential or punitive damages (collectively, “Losses”))
that Seller or any third party may suffer as a result of Buyer’s exercise of its
rights under this Section6.5; and (E) Buyer shall comply with and adhere to all of
Seller’s safety policies and procedures.




6.6. Rejection of Assigned
Contracts .  Seller
shall not reject any Assigned Contracts pursuant to the Chapter 11 Case without
the prior written consent of Buyer.




6.7.  Further
Assurances .  Upon
the request and at the sole expense of Buyer at any time before or after the
Closing Date, Seller shall execute and deliver such documents and take such
actions as Buyer or its counsel may reasonably request to effectuate the
purposes of this Agreement including, maintaining Permits.  Upon the
request and at the sole expense of Buyer, Seller shall reasonably cooperate with
Buyer’s attempt to obtain a bridge agreement that would enable Buyer to utilize
software on any computers which make up part of the Acquired Assets, provided
that, Seller shall have no obligation to (i) expend any funds or (ii) provide
such software or an equivalent or replacement thereof should Buyer fail to
obtain the rights to use any software.  Seller shall notify Buyer as
to any software being removed from computers which make up part of the Acquired
Assets, allow Buyer to have personnel present during such removal, and
coordinate such removal with Buyer to ensure preservation of all data on any
such computers.







20





6.8.  Notices .  Seller
shall provide Buyer with prompt written notice of Seller’s Knowledge of (i) any
breach of any representation or warranty by Buyer or (ii) any other material
failure by Buyer to comply with the obligations of this Agreement.




6.9.  Casualty
Loss .  Notwithstanding
any provision in this Agreement to the contrary, if, before the Closing, all or
any portion of the Acquired Assets is (a) condemned or taken by eminent domain,
or (b) a material portion is damaged or destroyed by fire or other casualty,
Seller shall notify Buyer promptly in writing of such fact, and (i) in the case
of condemnation or taking, Seller shall assign or pay, as the case may be, any
proceeds thereof to Buyer at the Closing, and (ii) in the case of fire or other
casualty, Seller shall either restore such damage or assign the insurance
proceeds therefrom to Buyer at Closing.  If Seller chooses to assign
the insurance proceeds to Buyer, Seller agrees that the Purchase Price shall be
reduced by the amount of the deductible for the insurance policy paying proceeds
to Seller for such loss.  Notwithstanding the foregoing, the
provisions of this Section 6.9 shall not in any way modify Buyer’s other rights
under this Agreement, including any applicable right to terminate the Agreement
if any condemnation, taking, damage or other destruction resulted in a Material
Adverse Effect.






ARTICLE
7


COVENANTS
OF BUYER




Buyer hereby
covenants to Seller as follows:




7.1.  Actions Before Closing
Date .  Buyer
shall use commercially reasonable efforts to perform and satisfy all conditions
to Seller’s obligations to consummate the transactions contemplated by this
Agreement that are to be performed or satisfied by Buyer under this
Agreement.




7.2.  Consents, Approvals and
Notifications .  Buyer
shall use commercially reasonable efforts to obtain all consents and approvals
of all Governments, and all other Persons, required to be obtained by Buyer and
provide notifications to all Persons required to be notified by Buyer to effect
the transactions contemplated by this Agreement.  Buyer shall promptly
take all actions as are reasonably requested by Seller to assist in obtaining
the Bankruptcy Court’s entry of the Sale Order, including furnishing affidavits,
financial information or other documents or information for filing with the
Bankruptcy Court and making Buyer’s employees and representatives available to
testify before the Bankruptcy Court.




7.3.  Adequate Assurances
Regarding Assigned Contracts .  With
respect to each Assigned Contract, to the extent requested by the Bankruptcy
Court, Seller or the counterparty to such Assigned Contract, Buyer shall provide
the Bankruptcy Court, Seller or such counterparty, as the case may be, adequate
assurance of the future performance of such Assigned Contract by
Buyer.







21





7.4.  Cure of
Defaults.  Buyer
shall, on or prior to the Closing, cure any and all defaults under the Assigned
Contracts that are required to be cured under the Bankruptcy Code and set forth
on Schedule7.4,
so that such Assigned Contracts may be assumed by Seller and assigned to Buyer
in accordance with the provisions of section 365 of the Bankruptcy
Code.  To the extent the cure costs for the Assigned Contracts exceed
the amounts set forth on Schedule7.4
as of the date of this Agreement, the Seller will be solely responsible for the
payment of such additional amounts.




7.5. Availability of Business
Records .  After
the Closing Date, Buyer shall provide to Seller and Related Persons (after
reasonable notice and during normal business hours and without charge to Seller)
access to all Business Records for periods prior to the Closing and shall
preserve such Business Records until the later of (a) six (6) years after the
Closing Date or (b) the required retention period for all government contact
information, records or documents.  Such access shall include access
to any information in electronic form to the extent reasonably
available.  Buyer acknowledges that Seller has the right to retain
originals or copies of Business Records for periods prior to the
Closing.  Prior to destroying any Business Records for periods prior
to the Closing, Buyer shall notify Seller thirty (30) days in advance of any
such proposed destruction of its intent to destroy such Business Records, and
Buyer will permit Seller to retain such Business Records.  With
respect to any litigation and claims that are Excluded Liabilities, Buyer shall
render all reasonable assistance that Seller may request in defending such
litigation or claim and shall make available to Seller’s personnel most
knowledgeable about the matter in question.  If after the Closing
Buyer (or any Affiliate or creditor of Buyer) shall receive any payment or
revenue that belongs to Seller pursuant to this Agreement, Buyer shall promptly
remit or caused to be remitted the same to Seller, without set-off or deduction
of any kind or nature.




7.6.  Calpine
Marks .  The
Calpine Marks may appear on some of the Acquired Assets, including on
signage.  Buyer acknowledges and agrees that it does not have and,
upon consummation of the transactions contemplated by this Agreement, will not
have, any right, title, interest, license or other right to use the Calpine
Marks.  Buyer will promptly after the Closing Date use its
commercially reasonable efforts to remove the Calpine Marks from, or cover or
conceal the Calpine Marks on, the Acquired Assets other than Business Records,
or otherwise refrain from the use and display of the Acquired Assets other than
Business Records on which the Calpine Marks are affixed.  On or after
the Closing, the Business Records shall not be held out as Business Records of
Seller.







22





7.7. Employee and Benefits
Matters




(a)  Intent to
Employ.  Buyer shall have the right at least five (5) Business
Days after the entry of the Sales Order on the Bankruptcy Court’s docket to
interview the Employee, and shall then notify Seller at least thirty (30) days
prior to the Closing Date (or such shorter period as available) whether Buyer
intends to cause Employee to be employed by it or its Affiliate.  If
Buyer elects to so employ Employee (hereinafter referred to as the “Accepting
Employee“), such employment offer shall be at the same or substantially
similar position.  The employment offer will be timed with the
intention of making the Accepting Employee’s first day of employment effective
as of the Closing Date.  However, employment will be contingent upon
the Accepting Employee’s passing of a pre-employment physical, drug test,
drivers license and background check and Employee’s executing of such agreements
dealing with confidentiality, conflicts of interest and other matters as Buyer
shall require.  Nothing herein shall prevent Seller or its Affiliates
from offering employment to Employee if Buyer elects not to employ Employee
pursuant to the foregoing.




(b)  Employment
Offer.  Such offer of employment shall be at the same base
salary applicable to the Accepting Employee as of October 12, 2007 and Buyer
shall not reduce such base salary during the 12-month period following the
Closing so long as Employee is employed during such period.  Buyer
also agrees, or shall cause its applicable Affiliate, to provide the Accepting
Employee and his covered dependents with welfare and retirement benefits that
are the same as those for the employees of Buyer or its
Affiliate.  Accepting Employee’s employment with Buyer or its
Affiliate, as the case may be, will be “at-will” and nothing contained in this
Agreement or any other communication shall constitute a contract of employment
and Employee shall not be a third party beneficiary of this
Agreement.




(c)  Benefit
Plans.  Accepting Employee will be enrolled in Buyer’s, or its
applicable Affiliate’s, benefit and retirement plan(s) on the first day of
employment.  Benefits will be effective on the date specified in the
official plan documents.  To the extent permitted under HIPAA law and
Buyer’s, or its applicable Affiliate’s, welfare benefit plans, Buyer shall , or
cause its Affiliate, to waive pre-existing condition requirements, evidence of
insurability provisions, waiting period requirements or any similar provisions
under any welfare benefit plans maintained for the Accepting Employee after the
Closing Date.




(d) Welfare Benefit
Claims.  Claims of the Accepting Employee and his eligible
beneficiaries and dependents for medical, dental, prescription drug, life
insurance, Worker’s Compensation, and/or other welfare benefits (“Welfare
Benefits“) that are incurred before the Closing Date shall be the sole
responsibility of Seller and Seller’s welfare benefit plans.  Seller
shall provide any COBRA or other notices required under Seller’s welfare benefit
and retirement plans.




7.8.  Notices .  Buyer
shall provide Seller with prompt written notice of Buyer’s knowledge of (i) any
breach of any representation or warranty by Seller or (ii) any other material
failure by Seller to comply with the obligations of this Agreement.







23







ARTICLE
8


BANKRUPTCY
PROCEDURES




8.1.  Bankruptcy
Actions .  Seller
shall use its reasonable best efforts to obtain the entry of the Sale Order on
the Bankruptcy Court’s docket.  Buyer covenants and agrees that it
shall reasonably cooperate with Seller in connection with furnishing information
or documents to Seller to satisfy the requirements of adequate assurance of
future performance under section 365(f)(2)(B) of the Bankruptcy
Code.




8.2.  Consultation with
Buyer .  To the
extent practicable, Seller shall provide Buyer, at least three (3) days in
advance of filing with the Bankruptcy Court, a draft of any motions, orders or
other pleadings that Seller proposes to file with the Bankruptcy Court in
connection with this Agreement.  To the extent practicable, Seller
shall reasonably cooperate with Buyer, and consider in good faith the views of
Buyer, with respect to all such filings.






ARTICLE
9


REGULATORY
MATTERS




Buyer hereby
covenants to Seller, and Seller hereby covenants to Buyer, as
follows:




9.1.  Regulatory
Filings .  Subject
to the terms and conditions of this Agreement, each party shall use its
reasonable best efforts to take, or cause to be taken, all actions and to do, or
cause to be done, all things necessary under applicable Laws to consummate the
transactions contemplated by this Agreement.




9.2. Cooperation; Confidentiality
Agreement .  In
connection with the efforts referenced in Section9.1
to obtain all requisite approvals and authorizations for the transactions
contemplated by this Agreement, any Antitrust Law, or any state law, each of the
parties shall use reasonable best efforts to (a) cooperate with each other in
connection with any filing or submission and in connection with any
investigation or other inquiry, including any proceeding
initiated by a private party; (b) keep the other parties informed in all
material respects of any material communication received by such party from, or
given by such party to, any Government and of any material communication
received or given in connection with any proceeding by a private party, in each
case regarding any of the transactions contemplated hereby and (c) permit the
other party to review any material communication given to it by, and consult
with each other in advance of any meeting or conference with any Government,
including in connection with any proceeding by a private party.  The
foregoing obligations in this Section9.2shall be subject
to the Confidentiality Agreement and any attorney-client, work product or other
privilege, and each of the parties hereto shall coordinate and cooperate fully
with the other parties hereto in exchanging such information and
providing such assistance as such other parties may reasonably request in
connection with the foregoing.  The parties will not take any action
that will have the effect of delaying, impairing or impeding the receipt of any
required authorizations, consents, Orders or approvals.  “Antitrust
Law” means the Sherman Act, as amended, the Clayton Act, as amended, the
HSR Act, the Federal Trade Commission Act, as amended, and all other Laws and
Orders that are designed or intended to prohibit, restrict or regulate actions
having the purpose or effect of monopolization or restraint of trade or
lessening of competition through merger or acquisition.







24





9.3.Objections or
Other Challenges.  If
any objections are asserted with respect to the transactions contemplated hereby
under any Antitrust Law or if any suit is instituted by any Government or any
private party challenging any of the transactions contemplated hereby as
violative of any Antitrust Law or if the filing pursuant to Section9.1
is reasonably likely to be rejected or conditioned by federal or a state
Government, each of the parties shall use reasonable best efforts to resolve
such objections or challenge as such Government or private party may have to
such transactions, including to vacate, lift, reverse or overturn any Order,
whether temporary, preliminary or permanent, so as to permit consummation of the
transactions contemplated by this Agreement.  Without limiting the
generality of the foregoing, Buyer shall promptly take and diligently pursue any
or all of the following actions to the extent necessary to eliminate any
concerns on the part of, or to satisfy any conditions imposed by, any Government
with jurisdiction over the enforcement of any applicable Law, including any
Antitrust Law and applicable state Law, regarding the legality of Buyer’s
acquisition of the Acquired Assets or the Assumed Liabilities:  (a)
entering into negotiations, providing information, making proposals, entering
into and performing agreements or submitting to Orders, or, pursuant to any such
agreement or Order or otherwise, selling or otherwise disposing of, or holding
separate (through the establishment of a trust or otherwise), particular assets
or categories of assets (including, after the Closing, any of the Acquired
Assets), or operations (including, after the Closing, the Acquired Assets or any
portion thereof), of Buyer or any of its Affiliates; (b) using its reasonable
best efforts to prevent the entry in a judicial or administrative proceeding
brought under any Law, including any Antitrust Law, applicable federal or state
Law, by any Government or any other Person of any permanent, temporary or
preliminary injunction or other Order that would make consummation of the
acquisition of all or a portion of the Acquired Assets or the Assumed
Liabilities in accordance with the terms of this Agreement unlawful or that
would prevent or delay such consummation; (c) taking promptly and diligently
pursuing, in the event that an injunction or Order has been issued as referred
to in Section9.3(b),
any and all steps, including the appeal thereof, the posting of a bond and/or
the steps contemplated by Section9.3(b),
necessary to vacate, modify or suspend such injunction or Order so as to permit
such consummation as promptly as possible and (d) promptly take and diligently
pursue all other actions and do all other things necessary and proper to avoid
or eliminate each and every impediment under any Law, including any Antitrust
Law, that may be asserted by any Government or any other Person to the
consummation of the acquisition of the Acquired Assets or the Assumed
Liabilities by Buyer in accordance with the terms of this
Agreement.




9.4.Permit
Transfers.  Prior
to and following the Closing, Seller shall provide commercially reasonable
assistance to Buyer to assist Buyer in (i) obtaining or (ii) the transfer of
Permits from Seller to Buyer.  Any and all fees required by any
Government or any Person to obtain or for the transfer of a Permit shall be the
sole responsibility of Buyer.







25







ARTICLE
10


TAXES




10.1. Taxes Related to Purchase of
Assets .  All
state and local sales, use, gross-receipts, transfer, gains, excise, value-added
or other similar Taxes in connection with the transfer of the Acquired Assets
and the assumption of the Assumed Liabilities, and all recording and filing fees
that may be imposed by reason of the sale, transfer, assignment and delivery of
the Acquired Assets and are not exempt under section 1146(a) of the Bankruptcy
code (collectively, “Transaction
Taxes”), shall be paid by Buyer on or prior to their due
date.




10.2. Proration of Real and
Personal Property Taxes .  All
real and personal property taxes and assessments on the Acquired Assets for any
taxable period commencing prior to the day immediately preceding the Closing
Date (the “Adjustment
Date”) and ending after the Adjustment Date (a “Straddle
Period”) shall be prorated between Buyer and Seller as of the close of
business on the Adjustment Date based on the best information then available,
with (a) Seller being liable for such Taxes attributable to any portion of a
Straddle Period ending prior to the Adjustment Date and (b) Buyer being liable
for such Taxes attributable to any portion of a Straddle Period beginning on or
after the Adjustment Date.  Information available after the Adjustment
Date that alters the amount of Taxes due with respect to the Straddle Period
will be taken into account and any change in the amount of such Taxes shall be
prorated between Buyer and Seller as set forth in the next
sentence.  All such prorations shall be allocated so that items
relating to the portion of a Straddle Period ending prior to the Adjustment Date
shall be allocated to Seller based upon the number of days in the Straddle
Period prior to the Adjustment Date and items related to the portion of a
Straddle Period beginning on or after the Adjustment Date shall be allocated to
Buyer based upon the number of days in the Straddle Period from and after the
Adjustment Date; provided, however, that the
parties shall allocate any real property Tax in accordance with Section 164(d)
of the Code.  The amount of all such prorations that must be paid in
order to convey the Acquired Assets to Buyer free and clear of all Liens other
than Permitted Liens shall be calculated and paid on the Closing Date; all other
prorations shall be calculated and paid as soon as practicable
thereafter.




10.3.  Cooperation on Tax
Matters .  Seller
and Buyer shall (and shall cause their respective Affiliates to) cooperate fully
with each other and make available or cause to be made available to each other
for consultation, inspection and copying (at such other party’s expense) in a
timely fashion such personnel, Tax data, relevant Tax Returns or portions
thereof and filings, files, books, records, documents, financial, technical and
operating data, computer records and other information as may be reasonably
required (a) for the preparation by such other party of any Tax Returns or (b)
in connection with any Tax audit or proceeding including one party (or an
Affiliate thereof) to the extent such Tax audit or proceeding relates to or
arises from the transactions contemplated by this Agreement.







26





10.4.  Retention of Tax
Records .  After
the Closing Date and until the expiration of all statutes of limitation
applicable to Seller’s liabilities for Taxes, Buyer shall retain possession of
all accounting, business, financial and Tax records and information that
(a) relate to the Acquired Assets and are in existence on the Closing Date
and (b) come into existence after the Closing Date but relate to the
Acquired Assets before the Closing Date, and Buyer shall give Seller notice and
a reasonable opportunity to retain any such records in the event that Buyer
determines to destroy or dispose of them during such period.  In
addition, from and after the Closing Date, Buyer shall provide to Seller and
their Related Persons (after reasonable notice and during normal business hours
and without charge to Seller) access to the books, records, documents and other
information relating to the Acquired Assets as Seller may reasonably deem
necessary to (i) properly prepare for, file, prove, answer, prosecute and
defend any Tax Return, claim, filing, tax audit, tax protest, suit, proceeding
or answer or (ii) administer or complete any cases under chapter 11 of the
Bankruptcy Code of or including Seller.  Such access shall include
access to any computerized information systems that contain data regarding the
Acquired Assets.




10.5.Allocation of
Purchase Price and Purchase Price Allocation Forms .  The Purchase Price, the Assumed Liabilities
and other relevant items shall be allocated among the Acquired Assets and among
Seller in accordance with Section 1060 of the Code.  Buyer shall
prepare and deliver to Seller an allocation schedule setting forth Buyer’s
determination of the allocation (the “Allocation
Schedule”) within 60 days after the date hereof, which Allocation
Schedule shall be subject to the reasonable approval of Seller.  The
Allocation Schedule shall identify the transferor and transferee thereof, and
shall be prepared in accordance with Treas. Reg. Section 1.1060-1 (or any
comparable provision of state or local tax Law) or any successor
provision.  The parties agree that they will report the federal,
state, local and other Tax consequences of the purchase and sale hereunder
(including in filings on IRS Form 8594) in a manner consistent with such
allocation and that they will not take any position inconsistent therewith in
connection with any Tax Return, refund claim, litigation or otherwise, unless
and to the extent required to do so pursuant to applicable
law.  Seller and Buyer shall cooperate in the filing of any forms
(including Form 8594) with respect to such
allocation.  Notwithstanding any other provision of this Agreement,
this Section10.5shall survive any termination or expiration of this
Agreement.




10.6. Unbilled Transactional
Taxes .  If a
Tax assessment is levied upon any party by an authorized tax jurisdiction for
unbilled transactional Taxes that are the obligation of the other party under
this Agreement, then the non-assessed party shall reimburse the assessed party
for those taxes including any interest and penalty.







27







ARTICLE
11


CONDITIONS
PRECEDENT TO PERFORMANCE BY PARTIES




11.1.Conditions
Precedent to Performance by Seller and Buyer.  The
respective obligations of Seller and Buyer to consummate the transactions
contemplated by this Agreement are subject to the satisfaction or waiver (other
than the condition contained in Section11.1(a),
the satisfaction of which cannot be waived), on or prior to the Closing Date, of
the following conditions:




(a)  Sale
Order.  The Bankruptcy Court shall have entered the Sale Order,
and no Order staying, reversing, modifying or amending the Sale Order shall be
in effect on the Closing Date.




(b)  Regulatory
Approvals.  The Regulatory Approvals on Schedule 11.1(b) of
the Disclosure Schedules shall have been obtained and requisite notice has been
provided by Buyer to relevant Government authorities.




(c) No Violation of
Orders.  No preliminary or permanent injunction or other Order
that declares this Agreement, the Master Escrow Agreement, or the Purchase
Notice invalid or unenforceable in any respect or that prevents the consummation
of the transactions contemplated hereby or thereby shall be in
effect.




11.2. Conditions Precedent to
Performance by Seller .  The
obligations of Seller to consummate the transactions contemplated by this
Agreement are subject to the satisfaction, on or before the Closing Date, of the
following conditions, any one or more of which may be waived by Seller in its
sole discretion:




(a)  Representations and
Warranties of Buyer. All
representations and warranties made by Buyer in this Agreement shall be true and
correct in all material respects on and as of the Closing Date as if again made
by Buyer on and as of such date (or, if made as of a specific date, at and as of
such date), and Seller shall have received a certificate dated the Closing Date
and signed by the President or a Vice President of Buyer to that
effect.




(b)  Performance of the
Obligations of Buyer.  Buyer shall have performed in all
material respects all obligations required under this Agreement to be performed
by it on or before the Closing Date (except with respect to the obligation to
pay the Purchase Price in accordance with the terms of this Agreement, which
obligation shall be performed in all respects as required under this Agreement),
and Seller shall have received a certificate dated the Closing Date and signed
by the President or a Vice President of Buyer to that effect.







28





(c)Cure of
Defaults.  Buyer shall, on or prior to the Closing, have cured
any and all defaults under the Assigned Contracts that are required to be cured
under the Bankruptcy Code and have provided all assurances of future performance
required to be provided by Buyer hereunder, so that the Assigned Contracts may
be assumed by Seller and assigned to Buyer in accordance with the provisions of
section 365 of the Bankruptcy Code.




(d)Buyer’s
Deliveries.  Buyer shall have delivered, and Seller shall have
received, all of the items set forth in Section3.3
of this Agreement.




11.3.Conditions
Precedent to the Performance by Buyer.  The
obligations of Buyer to consummate the transactions contemplated by this
Agreement are subject to the satisfaction, on or before the Closing Date, of the
following conditions, any one or more of which may be waived by Buyer in its
sole discretion:




(a)Representations
and Warranties of Seller.  The representations and warranties
made by Seller in Article
4 of this Agreement shall be true and correct as of the Closing, in
each case as though made at and as of such time (or, if made as of a specific
date, at and as of such date), except to the extent such failures to be true and
correct do not constitute a Material Adverse Effect, and Buyer shall have
received a certificate dated the Closing Date and signed by the President or a
Vice President of Seller to that effect.




(b)Performance of
the Obligations of Seller.  Seller shall have performed in all
respects all obligations required under this Agreement to be performed by them
on or before the Closing Date, except for such failures to perform that do not
constitute a Material Adverse Effect, and Buyer shall have received a
certificate dated the Closing Date and signed by the President or a Vice
President of Seller to that effect.




(c)Material
Adverse Effect.  No Material Adverse Effect shall have occurred
and be continuing.




(d)Bankruptcy
Matters.  The Sale Order shall have been entered by the
Bankruptcy Court and such order shall have become a Final
Order.




(e)Seller’s
Deliveries .  Seller shall have delivered, and Buyer shall
have received, all of the items set forth in Section 3.2 of this Agreement other
than those Business Recordsto be delivered after the
Closing.







29







ARTICLE
12


TERMINATION
AND EFFECT OF TERMINATION




12.1.  Right of
Termination .  Notwithstanding
anything to the contrary contained herein, this Agreement may be terminated only
as provided in thisArticle
12.  In
the case of any such termination, the
terminating party shall give notice to the other party specifying the provision
pursuant to which the Agreement is being terminated.




12.2.Termination
Without Default




(a)This
Agreement may be terminated at any time before
Closing:




(i)by
mutual written consent of Seller and Buyer;




(ii)by
Buyer, if a Sale Order has not been entered within 90 days after the entry of
the Bidding Procedures Order;




(iii)by
Buyer, on any date that is more than 365days after
the date hereof (the “Termination
Date”), if any condition contained in Section11.1
has not been satisfied or waived as of such time; provided,however,
that Buyer shall not have the right to terminate this Agreement under this Section12.2(a)(iii)
if Buyer’s failure to fulfill any of its obligations under this Agreement is the
reason that the Closing has not occurred on or before said
date;




(iv)by
Seller, on any date that is after the Termination Date, if any condition
contained in Section11.1
has not been satisfied or waived as of such time; provided,
however,
that Seller shall not have the right to terminate this Agreement under this
Section12.2(a)(iv)
if Seller’s failure to fulfill any of their obligations under this Agreement is
the reason that the Closing has not occurred on or before said date;
or




(v)by
either Buyer or Seller, immediately upon an Order becoming final and
non-appealable that declares this Agreement or the Purchase Notice invalid or
unenforceable in any material respect or that prevents the consummation of the
transactions contemplated hereby or thereby (a “Termination
Order”); provided,
however,
that neither Seller nor Buyer shall have the right to terminate this Agreement
pursuant to this Section12.2(a)(v)
if such party or any of its Affiliates has sought entry of, or has failed to use
all commercially reasonable efforts to oppose entry of, such Termination
Order.







30





(b)If
this Agreement is terminated pursuant to Section12.2(a),
(i) the Deposit, together with any interest accrued thereon less fees and
expenses of the Escrow Agent, shall be returned to Buyer, (ii) this Agreement
shall become null and void and have no effect (other than this Article
12, Article
13 and Article
14, which shall survive termination) and (iii) none of Seller, Buyer
or any of their respective Related Persons shall have any liability or
obligation arising under or in connection with this Agreement.




12.3.Effect of
Failure of Seller’s Conditions to Closing




(a)Seller
may terminate this Agreement at any time after the Termination Date and before
Closing if any condition contained in Section11.2(a),
Section11.2(b)
or Section11.2(c)
has not been satisfied or waived by Seller as of such time; provided,
however,
that Seller shall not have the right to terminate this Agreement under this
Section12.3
if Seller’s failure to fulfill any of its obligations under this Agreement has
been the reason that the Closing has not been consummated on or before such
date.




(b)If
this Agreement is terminated pursuant to this Section12.3,
Buyer acknowledges that a monetary remedy may be inadequate or impracticable and
that Seller may have been caused irreparable harm and, if Seller so determines,
Seller shall have the right, subject to the waiver by Seller or satisfaction of
the conditions contained in Section11.1,
to obtain an Order requiring Buyer to specifically perform all of its
obligations under this Agreement.




(c)If
Seller determines that a monetary remedy is adequate and practicable, Seller may
terminate this Agreement, retain the Deposit, together with any interest accrued
thereon and pursue any other remedies available to Seller at
Law.




12.4.Effect of
Failure of Buyer’s Conditions to Closing.  Buyer
may terminate this Agreement at any time after the Termination Date and before
Closing if any condition contained in Section11.3
has not been satisfied or waived as of such time; provided,
however,
that Buyer shall not have the right to terminate this Agreement under this Section12.4 if
Buyer’s failure to fulfill any of its obligations under this Agreement has been
the reason that the Closing has not been consummated on or before said
date.  If this Agreement is terminated pursuant to this Section12.4:
(i) the Deposit, together with any interest accrued thereon less any fees
and expenses of the Escrow Agent, shall be returned to Buyer, (ii) this
Agreement shall become null and void and have no effect (other than this Article
12, Article
13 and Article
14, which shall survive termination) and (iv) except as provided in
this Section12.4,
none of Seller, Buyer or any of their respective Related Persons shall have any
liability or obligation arising under or in connection with this
Agreement.




12.5.Damages.  In
no event shall Seller or its Affiliates have any liability to Buyer or any other
Person for any special, consequential or punitive damages, and any such claim,
right or cause of action for any damages that are special, consequential or
punitive or for specific performance of this Agreement is hereby fully waived,
released and forever discharged.







31







ARTICLE
13


MISCELLANEOUS




13.1.  Successors and
Assigns .  Except
as otherwise provided in this Agreement, no party hereto shall assign this
Agreement or any rights or obligations hereunder without the prior written
consent of the other party hereto, and any such attempted assignment without
such prior written consent shall be void and of no force and
effect.  This Agreement shall inure to the benefit of and shall be
binding upon the successors and permitted assigns of the parties
hereto.




13.2. Governing Law;
Jurisdiction .  This
Agreement shall be construed, performed and enforced in accordance with, and
governed by, the Laws of the State of New York (without giving effect to the
principles of conflicts of Laws thereof), except to the extent that the Laws of
such State are superseded by the Bankruptcy Code; provided that, the validity
and enforceability of all conveyance documents or instruments executed and
delivered pursuant to this Agreement insofar as they affect title to real
property shall be governed by and construed in accordance with the Laws of the
jurisdiction in which such property is located.  For so long as Seller
is subject to the jurisdiction of the Bankruptcy Court, the parties hereto
irrevocably elect as the sole judicial forum for the adjudication of any matters
arising under or in connection with the Agreement, and consent to the exclusive
jurisdiction of, the Bankruptcy Court.  After Seller is no longer
subject to the jurisdiction of the Bankruptcy Court, any legal action or
proceeding with respect to this Agreement or the transactions contemplated
hereby may be brought in the courts of the State of New York sitting in
Manhattan or of the United States for the Southern District of New York, and by
execution and delivery of this Agreement, each of the Parties consents to the
non-exclusive jurisdiction of those courts.  Each of the Parties
irrevocably waives any objection, including any objection to the laying of venue
or based on the grounds of forum non conveniens, which
it may now or hereafter have to the bringing of any action or proceeding in such
jurisdiction in respect of this Agreement or the transactions contemplated
hereby.




13.3.Disclosure
Schedule Supplements.  From
time to time prior to the Closing, Seller shall supplement or amend the
Disclosure Schedules to this Agreement with respect to any matter that, if
existing, occurring or known at the date of this Agreement, would have been
required to be set forth or described in the Disclosure
Schedules.  The Disclosure Schedules shall be deemed amended by all
such supplements and amendments for all purposes, unless within ten (10) days
from the receipt of such supplement or amendment Buyer provides notice in good
faith that the facts described in such supplement or amendment will have a
Material Adverse Effect on the Acquired Assets.  If Buyer provides
such notice, the Disclosure Schedules shall be deemed amended by all such
supplements and amendments for all purposes, except for purposes of determining
whether the conditions set forth in Section11.3(a)
of the Agreement have been satisfied.







32





13.4.  Warranties
Exclusive .  The
representations and warranties contained herein are the only representations or
warranties given by Seller and all other express or implied warranties are
disclaimed.  Without limiting the foregoing, Buyer acknowledges that
the Acquired Assets are conveyed “AS IS,’’ “WHERE IS” and “WITH ALL FAULTS” and
that all warranties of merchantability, usage or suitability or fitness for a
particular purpose are disclaimed.  Without limiting the foregoing,
Buyer further acknowledges that no material or information provided by or
communications made by Seller or its agents will create any representation or
warranty of any kind, whether express or implied, with respect to the Acquired
Assets and the title thereto, the operation of the Acquired Assets, or the
prospects (financial and otherwise), risks and other incidents of the Power
Plant, including without limitation the actual or rated generating capability of
the Power Plant or the ability of Buyer to generate or sell electrical
energy.




13.5. Survival of Representations
and Warranties




None of the
representations or warranties of Seller set forth in this Agreement or in any
certificate delivered pursuant to Section11.3(a) or Section11.3(b) shall survive
the Closing.




13.6. No Recourse Against Third
Parties




Buyer agrees for
itself and for all of its officers, directors,  shareholders,
Affiliates, attorneys, agents and any other parties making any claim by, through
or under the rights of such persons (collectively, the “Buyer
Group”) that no member of Buyer Group shall have any rights against any
officer, director, shareholder, Affiliate, attorney or agent of Seller (each,
individually, a “Non-Recourse
Person”) for any Losses that any member of Buyer Group may suffer in
connection with this Agreement.  Buyer and all members of Buyer Group
hereby waive any rights, recourse or remedy against Seller under any
Environmental Laws, including any arising under the Comprehensive Environmental
Response, Compensation and Liability Act, any analogous state law, or the common
law, with respect to any environmental health or safety matter relating to the
Acquired Assets in the Power Plant.  If any member of Buyer Group
makes a claim against any person or entity that is not a Non-Recourse Person (a
“Third
Person”) that in any way gives rise to a claim by such Third Person
against any Non-Recourse Person asserting that such Non-Recourse Person is or
may be liable to such Third Person with respect to any Losses arising in
connection with this Agreement (whether by way of indemnification, contribution,
or otherwise on any theory whatever) (a “Claim
Over”), such member of Buyer Group shall reduce or credit against any
judgment or settlement such member of Buyer Group may obtain against such Third
Person the full amount of any judgment or settlement such Third Person may
obtain against the Non-Recourse Person on such Claim Over, and shall, as part of
any settlement with such Third Person, obtain from such Third Person for the
benefit of such Non-Recourse Person a satisfaction in full of such Third
Person’s Claim Over against the Non-Recourse Person.







33





13.7. Mutual
Drafting .  This
Agreement is the result of the joint efforts of Buyer and Seller, and each
provision hereof has been subject to the mutual consultation, negotiation and
agreement of the parties and there is to be no construction against either party
based on any presumption of that party’s involvement in the drafting
thereof.




13.8. Expenses .  Except
as otherwise provided herein, each of the parties hereto shall pay its own
expenses in connection with this Agreement and the transactions contemplated
hereby, including any legal and accounting fees, whether or not the transactions
contemplated hereby are consummated.  Buyer shall pay the cost of all
Transaction Taxes payable upon or in connection with, and all surveys, title
insurance policies and title reports obtained in connection with, this Agreement
and the transactions contemplated thereby and all filing fees required to be
paid in connection with any filings made or notices given pursuant to any
Antitrust Law.




13.9. Broker’s and Finder’s
Fees .  Each of
the parties represents and warrants that it has not dealt with any broker or
finder in connection with any of the transactions contemplated by this Agreement
in a manner so as to give rise to any claims against the other party for any
brokerage commission, finder’s fees or other similar payout except that Seller
has retained Miller Buckfire & Co., LLC and will pay Miller Buckfire &
Co., LLC such fees as are approved by the Bankruptcy Court.




13.10. Severability .  In the
event that any part of this Agreement is declared by any court or other judicial
or administrative body to be null, void or unenforceable, said provision shall
survive to the extent it is not so declared, and all of the other provisions of
this Agreement shall remain in full force and effect only if, after excluding
the portion deemed to be unenforceable, the remaining terms shall provide for
the consummation of the transactions contemplated hereby in substantially the
same manner as originally set forth at the later of the date this Agreement was
executed or last amended.




13.11. Notices .  All
notices, requests, demands and other communications under this Agreement shall
be in writing and shall be deemed to have been duly given:  (a) on the
date of service if served personally on the party to whom notice is to be given;
(b) on the day of transmission if sent via facsimile transmission to the
facsimile number given below, and telephonic confirmation of receipt is obtained
promptly after completion of transmission; (c) on the day after delivery to
Federal Express or similar overnight courier or the Express Mail service
maintained by the United States Postal Service or (d) on the fifth day after
mailing, if mailed to the party to whom notice is to be given, by first class
mail, registered or certified, postage prepaid and properly addressed, to the
party as follows:










34





If
to Seller:





Calpine
Corporation


717
Texas Avenue, Suite 1000


Houston, Texas
77002


Attention:  General
Counsel


Facsimile:  (713)
353-9131





Copy
to:





Kirkland &
Ellis LLP


655
Fifteenth Street, N.W.


Washington, D.C.
20005-5793


Attention:  Mitchell
F. Hertz


Facsimile:  (202)
874-5200





and





Kirkland &
Ellis LLP


777
South Figueroa Street


Los
Angeles, California 90017-5800


Attention:  Bennett
L. Spiegel


Facsimile:  (213)
680-8500





If
to Buyer:





FirstEnergy
Generation Corp.


76
South Main Street


Akron,
Ohio  44308


Attention:
President


Facsimile: (330)
384-3875





Copy
to:


FirstEnergy
Corp.
 76 South Main
Street, Ste 1500
 Akron,
OH 44308
 Attention: Rick C.
Giannantonio


Facsimile:  (330)
384-3875





And





Brouse
McDowell


1001 Lakeside
Avenue


Suite
1600


Cleveland,
Ohio  44114


Attn:  Patricia
A. Gajda and Marc B. Merklin


Facsímile:  (216)
830-6807





Any party may change its address for the purpose of this
Section13.11by giving the other party written notice of its new
address in the manner set forth above.







35





13.12. Amendments;
Waivers .  This
Agreement may be amended or modified, and any of the terms, covenants,
representations, warranties or conditions hereof may be waived, only by a
written instrument executed by the parties hereto, or in the case of a waiver,
by the party waiving compliance.  Any waiver by any party of any
condition, or of the breach of any provision, term, covenant, representation or
warranty contained in this Agreement, in any one or more instances, shall not be
deemed to be nor construed as a furthering or continuing waiver of any such
condition, or of the breach of any other provision, term, covenant,
representation or warranty of this Agreement.




13.13. Schedules .  Seller
may, at its option, include in the Disclosure Schedules items that are not
material, and any such inclusion, or any references to dollar amounts, shall not
be deemed to be an acknowledgment or representation that such items are material
or would cause a Material Adverse Effect, to establish any standard of
materiality or to define further the meaning of such terms for purposes of this
Agreement.  Information disclosed in the Disclosure Schedules shall
constitute a disclosure for all purposes of the section for which such
disclosure was made and each other section for which such disclosure is readily
apparent.




13.140. Public
Announcements .  No
party shall make any press release or public announcement concerning the
transactions contemplated by this Agreement without the prior written approval
of the other parties, unless a press release or public announcement is required
by Law or Order of the Bankruptcy Court.  If any such announcement or
other disclosure is required by Law or Order of the Bankruptcy Court, the
disclosing party shall give the nondisclosing party or parties prior notice of,
and an opportunity to comment on, the proposed disclosure.  The
parties acknowledge that Seller shall file this Agreement with the Bankruptcy
Court in connection with obtaining the Sale Order.




13.15. Entire
Agreement .  This
Agreement, the Master Escrow Agreement, the Purchase Notice and the
Confidentiality Agreement contain the entire understanding among the parties
hereto with respect to the transactions contemplated hereby and supersede and
replace all prior and contemporaneous agreements and understandings, oral or
written, with regard to such transactions.  All Schedules hereto and
any documents and instruments delivered pursuant to any provision hereof are
expressly made a part of this Agreement as fully as though completely set forth
herein.







36





13.16. Parties in
Interest .  Nothing
in this Agreement is intended to confer any rights or remedies under or by
reason of this Agreement on any Persons other than Seller and Buyer and their
respective successors and permitted assigns.  Nothing in this
Agreement is intended to relieve or discharge the obligations or liability of
any third Persons to Seller or Buyer.  No provision of this Agreement
shall give any third Persons any right of subrogation or action over or against
Seller or Buyer.




13.17. Headings .  The
article and section headings in this Agreement are for reference purposes only
and shall not affect the meaning or interpretation of this
Agreement.




13.18. Construction .  Unless
the context of this Agreement otherwise requires, (i) words of any gender
include the other gender, (ii) words using the singular or plural number also
include the plural or singular number, respectively, (iii) the terms “hereof,”
“herein,” “hereby,” and derivative or similar words refer to this entire
Agreement as a whole and not to any other particular article, section or other
subdivision, (iv) the words “include,” “includes” and “including” shall be
deemed to be followed by the phrase “without limitation,” (v) “shall,” “will,”
or “agrees” are mandatory, and “may” is permissive, and (vi) “or” is not
exclusive.




13.19. Currency .  Except
where otherwise expressly provided, all amounts in this Agreement are stated and
shall be paid in United States currency.




13.20. Time of
Essence .  Time is
of the essence of this Agreement.




13.21. Counterparts .  This
Agreement may be executed in counterparts, each of which shall be deemed an
original, but all of which shall constitute the same agreement.  This
Agreement and any signed agreement entered into in connection herewith or
contemplated hereby, and any amendments hereto or thereto, to the extent signed
and delivered by facsimile (or equivalent electronic transmission, including by
email of a .pdf copy thereof), shall be treated in all manner and respects as an
original contract and shall be considered to have the same binding legal effect
as if it were the original signed version thereof delivered in
person.







37







ARTICLE
14


DEFINITIONS




14.1. Certain Terms
Defined .  As used
in this Agreement, the following terms shall have the following
meanings:




“Affiliate”
means, with respect to any Person, any other Person directly or indirectly
controlling, controlled by or under direct or indirect common control with such
first Person where “control” means the possession, directly or indirectly, of
the power to direct or cause the direction of the management policies of a
Person, through the ownership of voting securities, by contract, as trustee,
executor or otherwise.




“Assumption
Agreement” means the agreement substantially in the form of Exhibit B
hereto.




“Bankruptcy
Code” means Title 11 of the United States Code.




“Bankruptcy
Court” means the United States Bankruptcy Court for the Southern District
of New York or such other court having jurisdiction over the Chapter 11 Case
originally administered in the United States Bankruptcy Court of the Southern
District of New York.




“Bidding
Procedures Order” means the order of the Bankruptcy Court entered on
December 19, 2007 at Docket No. 7254 and attached as Exhibit E
hereto.




“Business
Day” means any day other than Saturday, Sunday and any day that is a
legal holiday or a day on which banking institutions in New York, New York are
authorized by Law or other Governmental action to close.




“Business
Records” means all books, files and records to the extent they apply
exclusively to the Acquired Assets and the Power Plant, including customer
lists, historical customer files, reports, plans, data, accounting and tax
records, test results, product specifications, drawings, diagrams, training
manuals, engineering data, safety and environmental reports and documents,
maintenance schedules, operating and production records, inventory records,
business plans, and marketing and all other studies, documents and records but
excluding any Retained Books and Records.




“Chapter 11
Case” means, collectively, the cases commenced and to be commenced by
Seller under chapter 11 of the Bankruptcy Code in the Bankruptcy
Court.




“Clayton
Act” means Title 15 of the United States Code §§ 12-27 and Title 29
of the United States Code §§ 52-53, as amended.







38





“Code”
means the Internal Revenue Code of 1986, as amended.




“Consent”
means any consent, approval, authorization, qualification, waiver or
notification of a Government.




“Contract”
means any written or oral contract, agreement, license, sublicense, lease,
sublease, mortgage, instruments, guaranties, commitment, undertaking or other
similar arrangement, whether express or implied.




“Emission
Allowances“ means all authorizations to emit specified units of
pollutants or Hazardous Material from the Power Plant, which units are
established by any Government authority with jurisdiction over the Power Plant
under (a) an air pollutant control and emission reduction program designed to
mitigate global warming or interstate or intrastate transport of or the emission
of air pollutants, (b) a program designed to mitigate the impairment of surface
waters, watersheds or groundwater or (c) any pollution reduction program with a
similar purpose, in each case regardless of whether the Government authority
establishing such authorizations designates such authorizations by a name other
than “Allowance.”




“Employee”
means Kevin Florence, the current manager of the Power Plant.




“Employee Benefit
Plan” means any “employee benefit plan” (as such term is defined in ERISA
§ 3(3)) and any other material employee benefit plan, program or
arrangement of any kind maintained, sponsored or contributed to by
Seller.




“Environmental
Laws”means
all currently existing and future federal, state, provincial, municipal, local
and foreign statutes, ordinances, rules, Orders, regulations, remediation
standards, and other provisions having the force of law for protection of the
environment, including the federal Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42 U.S.C. Sec. 9601 et seq., as amended, the
federal Resource Conservation and Recovery Act, 42 U.S.C. Sec. 6901 et seq., as amended, and
related state statutes.




“Environmental
Reports”means any environmental
sampling or report performed specifically to test compliance with any
Environmental Laws, and any and all Phase I or II environmental assessments, in
each case which Seller has received from an un-Affiliated third party within the
last three (3) years with respect to the Power Plant and the Owned Real
Property; provided, Environmental Reports shall not include any safety, health
and environmental audit reports, or internal investigation reports, prepared
under the direction of Seller’s legal department and privileged under the
attorney-client privilege, attorney work-product privilege, or state or federal
environmental self-auditing privilege or policy.




“ERISA”
means the Employee Retirement Income Security Act of 1974, as
amended.







39





“ERISA
Affiliate” means any entity treated as a single employer with Seller
pursuant to Section 414 of the Code.




“Escrow
Agent” means Union Bank of California, N.A., the escrow agent under the
Master Escrow Agreement.




“Existing
Survey” means that certain plat of a survey provided by Seller to Buyer
and  covering all or part of the Owned Real Property.




“Existing Title
Policy” means that certain proforma title policy provided by Seller to
Buyer and covering all or part of the Owned Real Property.




“Federal Trade
Commission Act” means the Federal Trade Commission Act (15 U.S.C.
§ 41 et seq.), as
amended, and the rules and regulations promulgated thereunder.




“Final
Order” or “Final
Orders” means any Order of a Government, the Bankruptcy Court or other
court of competent jurisdiction after all opportunities for rehearing,
reargument, petition for certiorari and appeal are exhausted or expired and any
requests for rehearing have been denied, and that has not been revised, stayed,
enjoined, set aside, annulled, reversed, remanded, modified or superseded, with
respect to which any required waiting period has expired, and to which all
conditions to effectiveness prescribed therein or otherwise by law or Order have
been satisfied; provided, however, that no Order shall fail to be a Final Order
solely because of the possibility that a motion pursuant to Rule 60 of the
Federal Rules of Civil Procedure or Bankruptcy Rule 9024 may be filed with
respect to such Order.  In the case of the Sale Order, a Final Order
shall also consist of an Order as to which an appeal, notice of appeal or motion
for rehearing or new trial has been filed but as to which Buyer, in its sole
discretion, elects to proceed with Closing.




“Government”
means any agency, division, subdivision, audit group, procuring office or
governmental or regulatory authority in any event or any adjudicatory body
thereof, of the United States, any state thereof or any foreign
government.




“Guaranty”
means the Guaranty of the Guarantor substantially in the form of Exhibit A
hereto.




“Guarantor”
means FirstEnergy Corp., an Ohio corporation.




“Hazardous
Materials”means and includes any
hazardous or toxic substance or waste or any contaminant or pollutant regulated
under Environmental Laws, including, but not limited to, “hazardous substances”
as currently defined by the Federal Comprehensive Environmental Response
Compensation and Liability Act of 1980, as amended, “hazardous wastes” as
currently defined by the Resource Conservation and Recovery Act, as amended,
natural gas petroleum products or byproducts and crude oil.







40





“HIPAA”
means the Health Insurance Portability and Accountability Act of 1996, as
amended.




“HSR Act”
means the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (15 U.S.C.
§§ 15c-15h, 18a), as amended.




“Improvements”
means the buildings, improvements and structures now existing on the Real
Property or demised under the Real Estate Leases, but only to the extent such
buildings, improvements and structures constitute fixtures under applicable
law.




“Knowledge of
Seller”, “Seller’s
Knowledge” or any other similar term or knowledge qualification means the
present actual knowledge of Kevin Florence.




“Lien”
means any mortgage, pledge, charge, security interest, encumbrance, lien
(statutory or other) or conditional sale agreement.




“Master Escrow
Agreement” means the escrow agreement by and among Seller, Buyer and
Union Bank of California, N.A., relating to the Deposit.




“Material Adverse
Effect” means a state of facts, event, change or effect on the physical
condition of the Acquired Assets, or the enforceability of any Assigned
Contract, that results in a material adverse effect on the combined operations
and value of the Acquired Assets but excluding any state of facts, event, change
or effect caused by events, changes or developments relating to: (i) changes of
Laws, including those governing national, regional, state or local electric
transmission or distribution systems, (ii) strikes, work stoppages or other
labor disturbances, (iii) increases in costs of commodities or supplies,
including fuel, (iv) effects of weather or meteorological events, (v) the
transactions contemplated by this Agreement or the announcement thereof;
(vi) changes in constructions costs; (vii) changes or conditions affecting
the industries in which the Acquired Assets are a part generally (including any
change or condition (x) generally affecting the international, national or
regional or local electric generating, transmission or distribution industry (y)
generally affecting the international, national, regional or local wholesale or
retail markets for electric power or (z) resulting from changes in the
international, national, regional or local fuel markets for the type of fuel
used at the Power Plant); (viii) changes in economic, regulatory or
political conditions generally; (ix) changes resulting from any motion,
application, pleading or Order filed under or in connection with, the Chapter 11
Case or any motion, application, pleading or Order filed by any Government
applicable to providers of generation, transmission or distribution of
electricity generally; or (x) any act(s) of war or of terrorism other than
such event or occurrences that cause material physical damage to the Power Plant
or transmission services thereto.




“Ordinary Course
of Business” means, with respect to the Power Plant, the maintenance
thereof consistent with prior practices with respect to the future construction
and operation thereof and prudent health, safety and environmental practices,
and taking into account the status and quality of the Power Plant.




41






“Permitted
Liens” means:  (i) all Liens in existence on the date of
this Agreement set forth on Schedule14.1 of the
Disclosure Schedules; (ii) Liens for Taxes, assessments and Government or other
similar charges that are not yet due and payable or that, although due and
payable, are being contested in good faith; (iii) Liens included in the
Assumed Liabilities; (iv) Liens that will attach to the proceeds of this sale
under this Agreement pursuant to section 363 of the Bankruptcy Code; (v) such
covenants, conditions, restrictions, easements, encroachments or encumbrances,
or any other state of facts, that do not materially interfere with the present
occupancy of the Real Property or the use of such Real Property as it has been
used by Seller prior to the Closing Date; (vi) zoning, building codes and other
land use laws regulating the use of occupancy of Owned Real Property or the
activities conducted thereon which are imposed by any governmental authority
having jurisdiction over Owned Real Property; (vii) a lessor’s interest in,
and any mortgage, pledge, security interest, encumbrance, lien (statutory or
other) or conditional sale agreement on or affecting a lessor’s interest in,
property underlying any of the Real Estate Leases; (viii) restrictions and
regulations imposed by any Government authority or any local, state, regional,
national or international reliability council, or any independent system
operator or regional transmission organization with jurisdiction over Seller or
the Power Plant; (ix) exceptions, restrictions, easements, charges,
rights-of-way and monetary and non-monetary encumbrances which are set forth in
any license; (x) exceptions and related matters set forth in the Existing
Survey; and (xi) the matters set forth in [Schedule B, items 3,4,5,6 and 8] of
the Existing Title Policy.




“Person”
means any individual, corporation, partnership, joint venture, association,
joint-stock company, trust, unincorporated organization or
Government.




“Power
Plant” means the approximately 70% complete, nominal 707 MW gas-fired
combined cycle electric generating facility primarily located in Fremont,
Ohioincluding all
Owned Real Property, equipment, electrical transformers, pipeline and electrical
interconnection facilities (including water discharge facilities and water
injection facilities) related thereto.




“Purchase
Notice” means Exhibit A of the Master Escrow Agreement, as executed and
delivered by Buyer and Calpine.




“Regulatory
Approvals” means state public utility commission and/or notifications of
other related Government authorities with respect to the consummation of the
transactions contemplated hereby.




“Related
Person” means, with respect to any Person, all past, present and future
directors, officers, members, managers, stockholders, employees, controlling
persons, agents, professionals, attorneys, accountants, investment bankers,
Affiliates or representatives of any such Person.







42





“Retained Books
and Records” means (i) all corporate seals, minute books, charter
documents, corporate stock record books, original tax and financial records and
such other files, books and records to the extent they  relate to any
of the Excluded Assets or Excluded Liabilities or the organization, existence,
capitalization or debt financing of Seller or of any Affiliate of Seller, (ii)
all books, files and records that would otherwise constitute a Business Record
but for the fact that disclosure of books, files or records could (w) violate
any legal constraints or obligations regarding the confidentiality thereof, (x)
waive any attorney client, work product  or like privilege, (y)
disclose information about Seller or any of its Affiliates that is unrelated to
the Power Plant or (z) disclose information about Seller or any of its
Affiliates pertaining to energy or project evaluation, energy or natural gas
price curves or projections or other economic predictive models, or (iii) all
books and records prepared in connection with or relating in any way to the
transactions contemplated by this Agreement, including bids received from other
parties and analyses relating in any way to the Acquired Assets and the Assumed
Liabilities.




“Rule” or
“Rules”
means the Federal Rules of Bankruptcy Procedure.




“Sherman
Act” means title 15 of the United States Code §§ 1-7, as
amended.




“Subsidiary”
means, with respect to any Person, any corporation, partnership, limited
liability company, association or other business entity of which (a) if a
corporation, a majority of the total voting power of shares of stock entitled
(without regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof is at the time owned or controlled,
directly or indirectly, by that Person or one or more of the other Subsidiaries
of that Person or a combination thereof, or (b) if a partnership, limited
liability company, association or other business entity, a majority of the
partnership or other similar ownership interest thereof is at the time owned or
controlled, directly or indirectly, by any Person or one or more Subsidiaries of
that Person or a combination thereof.  For purposes hereof, a Person
or Persons shall be deemed to have a majority ownership interest in a
partnership, limited liability company, association or other business entity if
such Person or Persons shall be allocated a majority of partnership, limited
liability company, association or other business entity gains or losses or shall
be or control the managing director or general partner of such partnership,
limited liability company, association or other business entity.




“Tax
Return” means any report, return, information return, filing or other
information, including any schedules, exhibits or attachments thereto, and any
amendments to any of the foregoing required to be filed or maintained in
connection with the calculation, determination, assessment or collection of any
Taxes (including estimated Taxes).




“Taxes”
means all taxes, however denominated, including any interest, penalties or
additions to tax that may become payable in respect thereof, imposed by any
Government, which taxes shall include all income taxes, Transaction Taxes,
payroll and employee withholding, unemployment insurance, social security (or
similar), sales and use, excise, franchise, gross receipts, occupation, real and
personal property, stamp, transfer, workmen’s compensation, customs duties,
registration, documentary, value added, alternative or add-on minimum,
estimated, environmental (including taxes under section 59A of the Code) and
other obligations of the same or a similar nature, whether arising before, on or
after the Closing Date.







43





14.2.  All Terms
Cross-Referenced .  Each of
the following terms is defined in the section set forth opposite such
term:






Term
            SectionAccepting
      Employee
            7.7(a)Accounts
      Receivable
            1.2(b)Acquired
      Assets
            1.1Adjustment
      Date
            10.2Affiliate
            14.1Agreement
            PreambleAllocation
      Schedule
            10.5Antitrust
      Law
            9.2Assigned
      Contracts
            1.1(f)Assumed
      Liabilities
            1.3Assumption
      Agreement
            14.1Bankruptcy
      Code
            14.1Bankruptcy
      Court
            14.1Bidding
      Procedures Order
            14.1Business
      Day
            14.1Business
      Records
            14.1Buyer
            PreambleBuyer
      Group
            13.6Calpine
      Marks
            1.2(l)Chapter 11
      Case
            14.1Claim
      Over
            13.6Claims
            1.2(i)Clayton
      Act
            14.1Closing
            3.1Closing
      Date
            3.1Code
            14.1Confidentiality
      Agreement
            6.5Consent
            14.1Contract
            14.1Deposit
            2.2Disclosure
      Schedules
            1.1(a)Emissions
      Allowances
            14.1Employee
            14.1Employee
      Benefit Plan
            14.1Entitled Real
      Property
            1.1(c)Environmental
      Laws
            14.1Environmental
      Reports
            14.1Equipment
            1.1(d)ERISA
            14.1ERISA
      Affiliate
            14.1Escrow
      Agent
            14.1







44





Excluded
      Assets
            1.2Excluded
      Liabilities
            1.4Existing
      Survey
            14.1Existing Title
      Policy
            14.1Federal Trade
      Commission Act
            14.1Final
      Order
            14.1Government
            14.1Hazardous
      Materials
            14.1HSR
      Act
            14.1Improvements
            14.1Inventory
            1.1(g)Knowledge of
      Seller
            14.1Law
            4.3Leased Real
      Property
            1.1(a)(b)Lien
            14.1Losses
            6.5Master Escrow
      Agreement
            14.1Material
      Adverse Effect
            14.1Material
      Contracts
            4.7(a)(ii)Non-Recourse
      Person
            13.6Order
            4.3Ordinary
      Course of Business
            14.1Organizational
      Documents
            4.3Other
      Contracts
            1.1(f)Owned Real
      Property
            1.1(a)Permits
            1.1(i)Permitted
      Liens
            14.1Person
            14.1Power
      Plant
            14.1Purchase
      Notice
            14.1Purchase
      Price
            2.1Real Estate
      Leases
            1.1(a)(b)Real
      Property
            1.1(c)Regulatory
      Approvals
            14.1Related
      Person
            14.1Retained Books
      and Records
            14.1Rule
            14.1Rules
            14.1Sale
      Order
            6.3Seller
            PreambleSeller’s
      Account
            3.3Seller’s
      Knowledge
            14.1Sherman
      Act
            14.1Straddle
      Period
            10.2Subsidiary
            14.1Supplier
      Contracts
            1.1(e)









45






Tax
      Return
              14.1Taxes
              14.1Termination
      Date
              12.2(a)(iii)Termination
      Order
              12.2(a)(v)Third
      Person
              13.6Transaction
      Taxes
              10.1Welfare
      Benefits
              7.7(d)
  (Signatures are on the
following page.)





46








IN WITNESS WHEREOF,
the parties hereto have caused this Agreement to be executed by their respective
officers thereunto duly authorized as of the date first above
written.









FIRSTENERGY GENERATION
      CORP.By:Name:Title:




CALPINE
      CORPORATIONBy:Name:Title: