EX-10.2:



 






Exhibit 10.2




PURCHASE AGREEMENT

(Rocky Road Power)




By and Among




NRG ROCKY ROAD LLC,

as Seller,




NRG ENERGY, INC.,




TERMO SANTANDER HOLDING, L.L.C.

as Buyer




and




DYNEGY INC.




December 27, 2005





 









 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	 	 	Page
	SECTION 1.
	 	SALE AND PURCHASE OF THE INTERESTS	 	1
	1.1
	 	Agreement of the Seller	 	1
	1.2
	 	Agreement of the Buyer	 	1
	 
	 	 	 	 
	SECTION 2.
	 	THE CLOSING	 	2
	2.1
	 	Time and Place	 	2
	2.2
	 	Purchase Price	 	2
	2.3
	 	Actions Taken at the Closing by the Seller	 	2
	2.4
	 	Actions Taken at the Closing by the Buyer	 	3
	2.5
	 	Allocation of Purchase Price	 	3
	 
	 	 	 	 
	SECTION 3.
	 	REPRESENTATIONS AND WARRANTIES OF THE SELLER AND NRG	 	4
	3.1
	 	Ownership of Membership Interests	 	4
	3.2
	 	Authority	 	4
	3.3
	 	Organization, Standing and Power	 	4
	3.4
	 	Consents and Approvals; No Conflict	 	5
	3.5
	 	Brokerage or Finder’s Fees	 	5
	3.6
	 	Compliance with Laws	 	5
	3.7
	 	Compliance with Orders	 	5
	3.8
	 	Litigation	 	6
	3.9
	 	No Contracts	 	6
	 
	 	 	 	 
	SECTION 4.
	 	REPRESENTATIONS AND WARRANTIES OF BUYER AND DYNEGY	 	6
	4.1
	 	Organization, Standing and Power	 	6
	4.2
	 	Authority	 	6
	4.3
	 	Consents and Approvals; No Conflict	 	6
	4.4
	 	Availability of Funds	 	7
	4.5
	 	Brokerage or Finder’s Fees	 	7
	 
	 	 	 	 
	SECTION 5.
	 	ADDITIONAL AGREEMENTS	 	7
	5.1
	 	Required Approvals	 	7
	5.2
	 	Notification	 	8
	5.3
	 	Further Assurances; Cooperation in Transition	 	8
	5.4
	 	Tax Matters	 	8
	5.5
	 	Commercially Reasonable Efforts; No Inconsistent Action	 	9
	5.6
	 	Certain Conduct Pending Closing	 	9
	 
	 	 	 	 
	SECTION 6.
	 	CONDITIONS TO CLOSING	 	9
	6.1
	 	Conditions Precedent to each Party’s Obligation to Close	 	9
	6.2
	 	Conditions Precedent to Buyer’s Obligation to Close	 	10
	6.3
	 	Conditions Precedent to Seller’s Obligation to Close	 	10






 









 






TABLE OF CONTENTS

(continued)




	 	 	 	 	 
	 	 	 	 	Page
	SECTION 7.
	 	TERMINATION	 	11
	7.1
	 	Termination	 	11
	7.2
	 	Effect of Termination	 	12
	 
	 	 	 	 
	SECTION 8.
	 	INDEMNIFICATION	 	12
	8.1
	 	The Seller’s Indemnification Obligations	 	12
	8.2
	 	The Buyer’s Indemnification Obligations	 	13
	8.3
	 	Environmental Indemnification	 	13
	8.4
	 	Tax Liability	 	14
	8.5
	 	Survival Periods	 	14
	8.6
	 	Limitations on Liability	 	14
	8.7
	 	Procedure for Indemnification Claims	 	15
	 
	 	 	 	 
	SECTION 9.
	 	MISCELLANEOUS	 	17
	9.1
	 	Costs and Expenses	 	17
	9.2
	 	Entire Agreement; Amendment; Waiver	 	18
	9.3
	 	Descriptive Headings	 	18
	9.4
	 	Counterparts	 	18
	9.5
	 	Confidentiality	 	18
	9.6
	 	Notices	 	18
	9.7
	 	Successors and Assigns	 	19
	9.8
	 	Governing Law	 	19
	9.9
	 	Agreement Construction; Waiver	 	19
	9.10
	 	Assignment	 	19
	9.11
	 	Severability	 	19
	9.12
	 	Electronic Signatures	 	20






 









 




TABLE OF CONTENTS



	 	 	 
	EXHIBITS:
	 	 
	 
	 	 
	Exhibit A

	 	Certain Definitions
	Exhibit B

	 	Assignment of Membership Interests
	Exhibit C

	 	Mutual Release and Waiver of Claims
	 
	 	 
	SCHEDULES:
	 	 
	 
	 	 
	Schedule 3.4(a)

	 	Consents — Seller
	Schedule 3.4(b)

	 	Approvals — Seller
	Schedule 3.6

	 	Compliance with Laws
	Schedule 3.7

	 	Compliance with Orders
	Schedule 3.8

	 	Litigation
	Schedule 4.3(a)

	 	Consents — Buyer
	Schedule 4.3(b)

	 	Approvals — Buyer
	Schedule 6.1(a)

	 	Closing Conditions — Approval, Consents and Releases






 









 






PURCHASE AGREEMENT

(ROCKY ROAD POWER)




     THIS PURCHASE AGREEMENT (this “Agreement”) is made and entered into effective as of
the 27th day of December, 2005 (the “Effective Date”), by and among Termo Santander Holding,
L.L.C., a Delaware limited liability company (“Buyer”), Dynegy Inc., an Illinois
corporation (“Dynegy”), NRG Rocky Road LLC, a Delaware limited liability company
(“Seller”), and NRG Energy, Inc., a Delaware corporation (“NRG”). Buyer, Dynegy,
Seller and NRG may be referred to herein, collectively, as the “Parties,” and,
individually, as a “Party.”



RECITALS




     WHEREAS, the Buyer and Seller each own 50% of the issued and outstanding Membership Interests
of Rocky Road Power, LLC, a Delaware limited liability company (“RRP”), and Termo Santander
(Alpha) Holding, LLC, a Delaware limited liability company (“Termo Alpha”);



     WHEREAS, RRP owns an electric generating facility located in East Dundee, Illinois (the
“Facility”);



     WHEREAS, the Seller desires to sell, and the Buyer desires to purchase, Seller’s 50%
Membership Interest in each of RRP and Termo Alpha (such membership interests shall be referred to
herein as the “Membership Interests”), subject to the terms and conditions hereof; and



     WHEREAS, capitalized terms not otherwise defined herein shall have the meaning set forth in
Exhibit A attached hereto.



     NOW, THEREFORE, in consideration of the premises and of the representations, warranties,
covenants, agreements and undertakings hereafter made, the Parties hereto have agreed as follows:



SECTION 1. SALE AND PURCHASE OF THE INTERESTS




     1.1 Agreement of the Seller. The Seller, in reliance upon the representations,
warranties, covenants and agreements of the Buyer set forth herein and in consideration for the
payment of the Purchase Price, hereby agrees to sell, transfer, assign and deliver the Membership
Interests to the Buyer at the Closing, free and clear of all Encumbrances, upon and subject to the
terms, conditions and provisions of this Agreement.



     1.2 Agreement of the Buyer. The Buyer, in reliance upon the representations,
warranties, covenants and agreements of the Seller set forth herein, and upon and subject to the
terms, conditions and provisions of this Agreement, hereby agrees to purchase the Membership
Interests at the Closing for the Purchase Price.



 









 





SECTION 2. THE CLOSING




     2.1 Time and Place. The Closing of the transactions contemplated by this Agreement
(the “Closing”) shall take place contemporaneously with the closing of the transaction
contemplated by the West Coast Power Purchase Agreement at the offices of Locke Liddell & Sapp LLP
in Houston, Texas on (i) the last business day of the month in which all conditions to the Closing
are satisfied (or, with respect to any condition not satisfied, waived) in accordance with this
Agreement, or (ii) at such other date, time, means and/or place as the Parties may agree in
writing.



     2.2 Purchase Price. The aggregate purchase price for the Membership Interests (the
“Purchase Price”) shall equal the sum of FORTY FIVE MILLION DOLLARS ($45,000,000). At the
Closing, the Buyer, unless otherwise agreed in writing by Buyer and Seller, shall pay to the Seller
the Purchase Price by wire transfer of immediately available funds to an account designated by the
Seller no later than two (2) business days prior to the Closing.



     2.3 Actions Taken at the Closing by the Seller. At the Closing, the Seller and NRG
shall take the following actions:




     (a) Assignment of Membership Interests. The Seller shall execute and deliver
to the Buyer an Assignment of Membership Interests, substantially in the form attached
hereto as Exhibit B.




     (b) Good Standing Certificates. The Seller shall deliver to the Buyer
certificates of good standing and existence with respect to each of the Seller and NRG.




     (c) Corporate Resolutions. The Seller shall deliver to the Buyer corporate
resolutions of NRG, reasonably acceptable in form and substance to the Buyer, authorizing
the execution and delivery of this Agreement by NRG and Seller and the taking of all actions
contemplated hereby.




     (d) Consents. The Seller shall receive and deliver to the Buyer the consents
set forth on Schedule 3.4(b) and the regulatory approvals set forth on Schedule
6.1(a).




     (e) Closing Certificate. The Seller shall execute and deliver to the Buyer the
certificate required by Section 6.2(c).




     (f) Certificate of Non-Foreign Status. Seller shall deliver to Buyer a
certificate of non-foreign status dated as of the Closing Date, sworn under penalty of
perjury and in form and substance required under Treasury Regulations issued pursuant to
Section 1445 of the Internal Revenue Code of 1986, as amended (the “Code”), that
Seller is not a “foreign person” as defined in Section 1445 of the Code.




     (g) Mutual Release and Waiver of Claims. NRG and Seller shall execute and
deliver to Dynegy the Mutual Release and Waiver of Claims, in substantially the form
attached hereto as Exhibit C.



2









 






     (h) Additional Documents. The Seller shall deliver to the Buyer such other
certificates, instruments and documents that the Buyer may reasonably request.



     2.4 Actions Taken at the Closing by the Buyer. At the Closing, the Buyer and Dynegy
shall take the following actions:




     (a) Assignment of Membership Interests. The Buyer shall execute and deliver to
the Seller an Assignment of Membership Interests, substantially in the form attached hereto
as Exhibit B.




     (b) Good Standing Certificates. The Buyer shall deliver to the Seller a
certificate of good standing and existence with respect to the Buyer and Dynegy.




     (c) Corporate Resolutions. The Buyer shall deliver to the Seller corporate
resolutions of Dynegy, reasonably acceptable in form and substance to the Seller,
authorizing the execution and delivery of this Agreement by Dynegy and Buyer and the taking
of all actions contemplated hereby.




     (d) Payment of Purchase Price. The Buyer shall pay the Purchase Price to the
Seller pursuant to Section 2.2.




     (e) Consents. The Buyer shall receive and deliver to the Seller the consents
set forth on Schedule 4.3(b) and the regulatory approvals set forth on Schedule
6.1(a).




     (f) Closing Certificate. The Buyer shall execute and deliver to the Seller the
certificate required by Section 6.3(c).




     (g) Mutual Release and Waiver of Claims. Dynegy shall, and shall cause Buyer,
RRP and Termo Alpha to, execute and deliver to NRG and Seller the Mutual Release and Waiver
of Claims, in substantially the form attached hereto as Exhibit C.




     (h) Additional Documents. The Buyer shall deliver to the Seller such other
certificates, instruments and documents that the Seller may reasonably request.



     2.5 Allocation of Purchase Price.




     (a) The Buyer and the Seller agree that in accordance with Revenue Ruling 99-6, 1999-1
CB 432, the purchase of the Membership Interests shall be treated as a purchase by Buyer of
an undivided 50% interest in each of the assets of RRP and Termo Alpha. Buyer will
determine a Purchase Price and a final allocation of that price among the assets of RRP and
Termo Alpha pursuant to Section 1060 of the Internal Revenue Code of 1986, as amended, and
related Treasury Regulations (the “Final Allocation”). Buyer shall provide such
final allocation in writing to Seller within 30 days after the Closing Date. The Seller
shall, in good faith, have the right to object to the Final Allocation and any such
objection shall be delivered to the Buyer in writing no more than 30 days after the Final
Allocation is delivered to the Seller. If the Seller objects, the Seller and the Buyer
shall negotiate in good faith to resolve the objection. If the Seller and the Buyer cannot
resolve such objection within 30 days, the objection shall be



3









 






referred to Deloitte & Touche
LLP (or if such firm is unwilling or unable to serve, another nationally recognized
accounting firm mutually agreed on by the Buyer and the Seller for prompt resolution.) The
decision of such accounting firm shall be binding on the Buyer and the Seller. The Final
Allocation shall be amended to reflect the decision of such accounting firm or the results
of any such negotiations. The cost and fees incurred from the services provided by such
accounting firm will be split equally between Buyer and Seller.




     (b) The Seller and the Buyer (i) shall be bound by the Final Allocation for purposes of
determining any and all consequences with respect to federal, state and local taxes of the
transactions contemplated herein (ii) shall prepare and file all tax returns to be filed
with any taxing authority in a manner consistent with the Final Allocation and (iii) shall
take no position inconsistent with the Final Allocation in any tax return, in any discussion
with or proceeding before any taxing authority, or otherwise. In the event that the Final
Allocation is disputed by any taxing authority and in the event that the applicable statute
of limitations has not expired with respect to either the Seller or the Buyer, the Party
receiving notice of such dispute shall promptly notify and consult with the other Party
hereto concerning resolution of such dispute, and no such dispute shall be finally settled
or compromised without the mutual consent of the Seller and the Buyer, which consent shall
not be unreasonably withheld.



SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE SELLER AND NRG




     Except as set forth in the Disclosure Schedules referenced herein and attached hereto, Seller
and NRG, jointly and severally, represent and warrant to the Buyer that as of the date hereof:



     3.1 Ownership of Membership Interests. The Seller is the legal and beneficial owner
of the Membership Interests and holds those interests free and clear of any and all Encumbrances
whatsoever, other than those arising under this Agreement or those listed on Schedule 3.1.
Upon transfer of the Membership Interests to the Buyer, title to the Membership Interests will be
vested in the Buyer free and clear of any and all Encumbrances other than limitations imposed by
federal and state securities laws on the transfer of Membership Interests. The Membership
Interests are not subject to any agreement with respect to the voting thereof, nor has the Seller
granted any proxy or option that is presently in existence with respect to the Membership
Interests.



     3.2 Authority. The execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby have been duly and validly authorized by all necessary actions
on the part of the Seller and NRG, and this Agreement is a legal, valid and binding obligation of
the Seller and NRG, enforceable in accordance with its terms, except only as such enforcement may
be limited by bankruptcy, insolvency and other laws relating to protection from creditors or
general equitable principles.



     3.3 Organization, Standing and Power. The Seller is a limited liability company duly
organized, validly existing and in good standing under the laws of the State of Delaware and has
all requisite corporate power and authority to own, lease and operate its properties and to



4









 




conduct
the business presently conducted by the Seller. NRG is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and has all requisite
corporate power and authority to own, lease and operate its properties and to conduct the business
presently conducted by NRG.




     3.4 Consents and Approvals; No Conflict.




     (a) Except as set forth on Schedule 3.4(a), the execution and delivery of this
Agreement by the Seller and NRG does not, and the consummation by the Seller of the
transactions contemplated hereby will not, (i) conflict with or result in a breach of or a
default under, or result in an occurrence which with the lapse of time could result in a
default under, or give rise to any right of termination, cancellation, acceleration or other
right with respect to, or any lien, claim, charge, restriction or encumbrance under, any of
the terms, conditions or provisions of any note, debenture, bond, mortgage or indenture, or
any Contract to which the Seller or NRG is a party or by which any of their respective
properties or assets are bound, (ii) conflict with or violate any provisions of the charter
documents of the Seller or NRG.




     (b) Except as described on Schedule 3.4(b), (i) the execution and delivery of
this Agreement by the Seller and NRG does not, and the consummation by the Seller of the
transactions contemplated hereby will not, violate any statute or any order, rule or
regulation of any Governmental Authority having jurisdiction over the Seller or NRG or any
of their respective properties, and (ii) no consent or approval by, or registration,
qualification or filing with or notice to, any Governmental Authority is required to be
obtained or made by the Seller or NRG in connection with the execution and delivery by the
Seller and NRG of this Agreement or for the consummation by the Seller of the transactions
contemplated hereby, except for consents, approvals, registrations, qualifications, filings
or notices pursuant to applicable Environmental Laws or where the violation or the failure
to obtain any such consent, approval, registration, qualification, filing or notice would
not result in a Material Adverse Effect.



     3.5 Brokerage or Finder’s Fees. Neither the Seller nor any of its Affiliates,
officers, directors or employees has employed any broker or finder or incurred any liability for
any brokerage fees, commissions or finder’s fees in connection with the transactions contemplated
herein.



     3.6 Compliance with Laws. Except as set forth on Schedule 3.6, Seller and its
Affiliates have complied in all respects with all Laws (other than Environmental Laws) applicable
to Seller’s ownership of the Membership Interests, except to the extent such failure to comply
would not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect.



     3.7 Compliance with Orders. Except as set forth in Schedule 3.7 hereto,
Seller has not received written notice of, and has no Knowledge of, any material, uncured default
under any order, writ, judgment, award, injunction or decree of any Governmental Authority
applicable to the Seller, RRP or Termo Alpha.



5









 





     3.8 Litigation. Except as set forth on the attached Schedule 3.8, to the
Knowledge of Seller or NRG, there are no actions, suits or proceedings pending or threatened
against RRP or Termo Alpha. Except as set forth on the attached Schedule 3.8, to the
Knowledge of Seller or NRG, there are no orders or judgments to which RRP or Termo Alpha is subject
or the Facility is bound.



     3.9 No Contracts. None of Seller or any of its Affiliates or any of their respective
officers, employees or representatives have entered into any Contract by or on behalf of (in any
capacity) RRP or Termo Alpha, or to which any of the respective properties or assets of RRP or
Termo Alpha are bound.



SECTION 4. REPRESENTATIONS AND WARRANTIES OF BUYER AND DYNEGY




     Except as set forth in the Disclosure Schedules references herein and attached hereto, Buyer
and Dynegy, jointly and severally, represent and warrant to the Seller that as of the date hereof:



     4.1 Organization, Standing and Power. The Buyer is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware and has all requisite
corporate power and authority to own, lease and operate its properties and to conduct the business
presently conducted by it. Dynegy is a corporation duly organized, validly existing and in good
standing under the laws of the State of Illinois and has all requisite corporate power and
authority to own, lease and operate its properties and to conduct the business presently conducted
by it.



     4.2 Authority. The execution and delivery by the Buyer and Dynegy of this Agreement
and the consummation of the transactions contemplated hereby have been duly and validly authorized
by all necessary corporate action on the part of the Buyer and Dynegy, and this Agreement is a
valid and binding obligation of the Buyer and Dynegy enforceable in accordance with its terms,
except only as such enforcement may be limited by bankruptcy, insolvency and other laws relating to
protection from creditors or general equitable principles.



     4.3 Consents and Approvals; No Conflict.




     (a) Except as set forth on Schedule 4.3(a), the execution and delivery of this
Agreement by the Buyer and Dynegy does not, and the consummation by the Buyer of the
transactions contemplated hereby will not, (i) conflict with or result in a material breach
of or a default under, or result in an occurrence which with the lapse of time could result
in a material breach of or default under, or give rise to any right of termination,
cancellation, acceleration or other right with respect to, or any lien, claim, charge,
restriction or encumbrance under, any of the terms, conditions or provisions of any note,
debenture, bond, mortgage or indenture, or any Contract to which the Buyer, Dynegy, RRP or
Termo Alpha is a party or by which any of their respective properties or assets are bound,
(ii) conflict with or violate any provisions of the charter documents of the Buyer, Dynegy,
RRP or Termo Alpha.




     (b) Except as described on Schedule 4.3(b), (i) the execution and delivery of
this Agreement by the Buyer and Dynegy does not, and the consummation by the Buyer



6









 






of the
transactions contemplated hereby will not, violate any statute or any order, rule or
regulation of any Governmental Authority having jurisdiction over the Buyer, Dynegy, RRP or
Termo Alpha or any of their respective properties, and (ii) no consent or approval by, or
registration, qualification or filing with, or notice to any Governmental Authority
(including without limitation any consent, approval, registration, qualification, filing or
notice pursuant to applicable Environmental Laws) is required to be obtained or made by the
Buyer, Dynegy, RRP or Termo Alpha in connection with the execution and delivery by the Buyer
and Dynegy of this Agreement or for the consummation by the Buyer of the transactions
contemplated hereby, except where the violation or the failure to obtain such consent,
approval, registration, qualification, filing or notice would not result in a Material
Adverse Effect.



     4.4 Availability of Funds. Buyer has (or at Closing will have) cash available which
is sufficient to enable it to consummate the transactions contemplated by this Agreement.



     4.5 Brokerage or Finder’s Fees. Neither the Buyer nor any of its Affiliates,
officers, directors or employees has employed any broker or finder or incurred any liability for
any brokerage fees, commissions or finder’s fees in connection with the transactions contemplated
herein.



SECTION 5. ADDITIONAL AGREEMENTS




     5.1 Required Approvals.




     (a) The Parties shall file as promptly as practicable, but no later than twenty (20)
business days following execution of this Agreement, an application of FERC under Section
203 of the Federal Power Act requesting approval for the transactions contemplated by this
Agreement. Buyer and NRG acknowledge and agree that the aforementioned application with
FERC with respect to the transaction contemplated by this Agreement will include an
application under Section 203 of the Federal Power Act requesting approval to merge Termo
Alpha into RRP after the Closing (and Seller and Dynegy hereby agree not to effectuate such
merger prior to the Closing). The Parties shall use commercially reasonable efforts to
secure the FERC approval for this application at the earliest possible date after the date
of filing. Buyer shall have primary responsibility for the preparation and filing of the
application described herein, subject to the review and approval provisions provided in
Section 5.1(c) below.




     (b) With respect to all other approvals and consents, Buyer shall have primary
responsibility and shall use commercially reasonable efforts to prepare and file as soon as
practicable, subject to the review and approval provisions provided in Section
5.1(c) below, all necessary documentation, to effect all necessary applications,
notices, petitions, filings and other documents, and to obtain all necessary consents,
approvals, releases, Permits and authorizations of all applicable Governmental Authorities
or other Persons (including but not limited to those set forth on Schedule 4.3(a)
and Schedule 4.3(b)) necessary or advisable in connection with the consummation of
the transactions contemplated by this Agreement. Seller shall cooperate with Buyer in such



7









 






process and shall make joint applications, notices, petitions and filings with respect to
such matters as required.




     (c) Each Party shall have the right to review and approve in advance any and all
necessary applications, notices, petitions, filings or other documents made or prepared in
connection with the transactions contemplated by this Agreement, such approval not to be
unreasonably withheld. All costs and expenses of the approvals and consents contemplated by
this Section 5.1 (other than costs and expenses associated with Seller’s review of
the same) shall be borne solely by the Buyer.



     5.2 Notification. Between the date of this Agreement and the Closing, Buyer shall
give prompt notice to Seller, and Seller shall give prompt notice to Buyer, of (i) the occurrence,
or non-occurrence, of any event the occurrence, or non-occurrence, of which would be reasonably
likely to cause (x) any representation or warranty of such Party contained in this Agreement to be
untrue or inaccurate or (y) any covenant, condition or agreement of such Party contained in this
Agreement not to be complied with or satisfied; or (ii) the failure by it to comply with or satisfy
in any material respect any covenant, condition or agreement to be complied with or satisfied by it
under this Agreement; provided, however, that the delivery of any notice pursuant to this
Section 5.2 shall not have any effect for the purpose of determining the satisfaction of
the conditions set forth in this Agreement or otherwise limit or affect the remedies available
hereunder to any Party.



     5.3 Further Assurances; Cooperation in Transition. Upon the request of any Party,
each Party will promptly execute and deliver such further instruments and documents as may be
reasonably requested by a Party hereto in order to more fully effectuate, in the manner
contemplated by this Agreement, the transactions described in this Agreement. In addition, Seller
and NRG will reasonably cooperate with Buyer and Dynegy for a period of 60 days following the
Closing, at the request of and at no additional cost to Buyer or Dynegy (other than the obligation
to reimburse Seller and NRG for reasonable out-of-pocket expenses incurred in connection with any
such request), in the transition of the business and operations of RRP and Termo Alpha to the sole
control of Buyer, including the provision of information and making available appropriate personnel
of Seller and/or NRG as may be reasonably requested by Buyer in connection therewith.



     5.4 Tax Matters. The Buyer shall prepare or have prepared and file all Tax Returns
required to be filed by RRP and Termo Alpha for all Tax periods ending on or after Closing. The
Buyer shall cause RRP and Termo Alpha, respectively, to report any income, gain, loss, deduction
and expenses of RRP and Termo Alpha, as the case may be, utilizing the interim closing the books
method with the closing period ending on the date of Closing and such allocations of income, gain,
loss, deduction and expenses shall be made to the Buyer and Seller in accordance with the
organizational documents of RRP and Termo Alpha, respectively. The Buyer shall deliver to Seller
drafts of all Tax Returns (including underlying work papers) for any tax period that includes any
period prior to Closing at least 30 days before the date that the Buyer intends to file any such
Tax Returns for RRP or Termo Alpha. The Seller shall make any comments to such Tax Returns within
15 days after receipt of same or shall be deemed to have accepted such Tax Return as prepared by
the Buyer. The Buyer shall make any changes to such Tax Returns reasonably requested by the
Seller. The Buyer and the Seller shall each provide the



8









 




other with all information reasonably
necessary to prepare any applicable Tax Return. Notwithstanding anything in this Agreement to the
contrary, Buyer shall timely pay any sales, transfer, stamp or similar tax, charge or assessments
that may be due with respect to the transfer of the Membership Interests as contemplated by this
Agreement but in no event shall Buyer be responsible for any income tax or assessment due by Seller
and Buyer shall timely file any tax returns associated with such taxes, charges or assessments with
the appropriate taxing authority.




     5.5 Commercially Reasonable Efforts; No Inconsistent Action. Upon the terms and
subject to the conditions set forth in this Agreement, each of the Parties agrees to use
commercially reasonable efforts, unless a different standard of conduct is expressly provided in
this Agreement with respect to any action or matter, to take, or cause to be taken, all actions,
and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all
things necessary, proper or advisable to consummate and make effective, in the most expeditious
manner practicable, the transactions contemplated by this Agreement, including taking all acts
necessary to cause the conditions to Closing to be satisfied as promptly as practicable. No Party
will take any action inconsistent with its obligations under this Agreement or that could hinder or
delay the consummation of the transactions contemplated by this Agreement, except that nothing in
this Section 5.5 shall limit the rights of either Party to terminate this Agreement if
permitted under Section 7.



     5.6 Certain Conduct Pending Closing. The parties hereby acknowledge and agree that:




     (a) RRP shall make a distribution to its members in the aggregate amount of $4,480,000
for the month of December 2005, and Termo Alpha shall make a distribution to its members in
the aggregate amount of $812,000 for the month of December 2005. Neither RRP or Termo Alpha
will make any distributions of any kind from and after December 31, 2005, and continuing
until the earlier of (i) the termination of this Agreement, if any, pursuant to Section
7 hereof, or (ii) the day immediately following the Closing Date.




     (b) From and after the date hereof, none of Seller or any of its Affiliates or any of
their respective officers, employees or representatives will enter into any Contract by or
on behalf of (in any capacity) RRP or Termo Alpha, or to which any of the respective
properties or assets of RRP or Termo Alpha are bound.



SECTION 6. CONDITIONS TO CLOSING




     6.1 Conditions Precedent to each Party’s Obligation to Close. The respective
obligations of Buyer and Seller to effect the purchase and sale of the Membership Interests shall
be subject to the satisfaction, at or prior to Closing, of each of the following conditions (any of
which may be waived, in whole or in part, in writing signed by Buyer and Seller):




     (a) The Parties shall have received all of the approvals, consents and releases set
forth in Schedule 6.1(a) and all conditions to the effectiveness of such approvals,
consents and releases as prescribed therein shall have been satisfied.



9









 






     (b) No statute, rule, regulation, executive order, decree or injunction shall have been
formally proposed, enacted, entered, promulgated or enforced by any Governmental Authority
that prohibits the consummation of, or that will have a material adverse effect on the
ability of a Party to consummate, the transactions contemplated by this Agreement. No
approval of the transactions contemplated under this Agreement which is required to be
obtained from any Governmental Authority shall contain any modification or mitigation
requirements which, in the reasonable discretion of the Party affected by such approval,
could have a Material Adverse Affect.




     (c) There shall not be any suit, action, investigation, inquiry or other proceeding
instituted, pending or threatened by any Governmental Authority or other Person that seeks
to enjoin or otherwise prevent consummation of, or that otherwise involves any challenge to,
or seeks damages or other relief in connection with, the transactions contemplated by this
Agreement.




     (d) The simultaneous closing of the transactions contemplated by the West Coast Power
Purchase Agreement.



     6.2 Conditions Precedent to Buyer’s Obligation to Close. Buyer’s obligation to
purchase the Membership Interests and to take the other actions required to be taken by Buyer at
the Closing is subject to the satisfaction, at or prior to Closing, of each of the following
conditions (any of which may be waived, in whole or in part, in writing signed by Buyer):




     (a) The representations and warranties of the Seller and NRG set forth in this
Agreement will be, if qualified by materiality, true and correct in all respects, and if not
so qualified, shall be true and correct in all material respects, as of the Closing Date as
though made on and as of the Closing Date (except to the extent such representations and
warranties speak as of an earlier date).




     (b) Each of the agreements and covenants of Seller and NRG to be performed and complied
with by Seller and NRG pursuant to this Agreement prior to or as of the Closing Date will
have been duly performed and complied with in all material respects.




     (c) Buyer shall have received a certificate from an authorized officer of Seller, in
form and substance reasonably acceptable to Buyer, dated the Closing Date as to the
satisfaction by the Seller and NRG of the conditions set forth in Sections 6.2(a)
and 6.2(b).




     (d) Seller shall have delivered, or be standing ready to deliver, the documents
required to be delivered pursuant to Section 2.3.



     6.3 Conditions Precedent to Seller’s Obligation to Close. Seller’s obligation to sell
the Membership Interests and to take the other actions required to be taken by Seller at the
Closing is subject to the satisfaction, at or prior to Closing, of each of the following conditions
(any of which may be waived, in whole or in part, in writing signed by Seller):




     (a) The representations and warranties of the Buyer and Dynegy set forth in this
Agreement will be, if qualified by materiality, true and correct in all respects, and if



10









 






not
so qualified, shall be true and correct in all material respects, as of the Closing Date as
though made on and as of the Closing Date (except to the extent such representations and
warranties speak as of an earlier date).




     (b) Each of the agreements and covenants of Buyer and Dynegy to be performed and
complied with by Buyer and Dynegy pursuant to this Agreement prior to or as of the Closing
Date will have been duly performed and complied with in all material respects.




     (c) Seller shall have received a certificate from an authorized officer of Buyer, in
form and substance reasonably acceptable to Seller, dated the Closing Date as to the
satisfaction by the Buyer and Dynegy of the conditions set forth in Sections 6.3(a)
and 6.3(b).




     (d) Buyer shall have delivered, or be standing ready to deliver, the documents required
to be delivered pursuant to Section 2.4.



SECTION 7. TERMINATION




     7.1 Termination. This Agreement may be terminated and the transactions contemplated
hereby may be abandoned at any time prior to the Closing:




     (a) by mutual consent of Buyer and Seller;




     (b) by Buyer (i) if any of the conditions in Section 6.1 or Section 6.2
shall have become incapable of fulfillment by May 1, 2006 (the “First Outside Date”)
and shall not have been waived in writing by the Buyer, or (ii) at any time after the First
Outside Date;




     (c) by Seller if any of the conditions in Section 6.1, other than Section
6.1(d), or Section 6.3 shall have become incapable of fulfillment by the First
Outside Date and shall not have been waived in writing by Seller or, in the case of the
condition contained in Section 6.1(d), shall not have been fulfilled or otherwise
waived in writing by Seller by September 30, 2006 (the “Second Outside Date”);




     (d) by Seller at any time after the Second Outside Date;




     (e) by Buyer or Seller if any Governmental Authority of competent jurisdiction shall
have issued an order, decree or injunction or taken any other action restraining, enjoining
or otherwise prohibiting the transactions contemplated by this Agreement and such order,
decree or injunction or other action shall have been final and non-appealable;



     provided, however, that (i) the right to terminate this Agreement pursuant to Section
7.1(b) or Section 7.1(c) shall not be available to a Party if such Party, at such time,
is in material breach of any representation, warranty, covenant or agreement set forth in this
Agreement, and (ii) the right to terminate this Agreement pursuant to Section 7.1(d) shall
not be available to a Party if such Party, at such time, is in breach of any representation,
warranty, covenant or



11









 




agreement set forth in this Agreement and such breach is the primary cause
for the failure to close by the Outside Date.




     7.2 Effect of Termination. In the event of termination of this Agreement pursuant to
Section 7.1, written notice thereof shall be given by a Party so terminating to the other
Party and, except as provided in this Section 7.2, this Agreement shall forthwith terminate
and shall become null and void and of no further effect, and the transactions contemplated by this
Agreement shall be abandoned without further action by Buyer or Seller. If this Agreement is
terminated under Section 7.1 of this Agreement:




     (a) Each Party shall redeliver all documents, work papers and other materials of the
other Party relating to the transactions contemplated by this Agreement, whether obtained
before or after the execution of this Agreement, to the Party furnishing the same;




     (b) All filings, applications and other submissions made pursuant hereto shall, to the
extent practicable, be withdrawn from the agency or other Person to which made;




     (c) There shall be no liability or obligation under this Agreement on the part of Buyer
or Seller or any of their respective Affiliates, directors, officers, managers, employees,
agents or representatives, except (i) that Seller or Buyer, as the case may be, may have
liability to the other Party if the basis of termination is a willful, material breach by
Buyer or Seller, as the case may be, of one or more of the provisions of this Agreement, and
(ii) the obligations provided in this Section 7.2 and Section 9 shall
survive any such termination.



SECTION 8. INDEMNIFICATION




     8.1 The Seller’s Indemnification Obligations. From and after the Closing, the Seller
and NRG agree, jointly and severally, to indemnify, defend and hold harmless the Buyer, Dynegy and
their respective officers, directors, members, managers, stockholders, Affiliates, employees,
successors and assigns (the collectively, the “Buyer Indemnified Parties”) from and against
and reimburse each of the Buyer Indemnified Parties with respect to any and all damages,
liabilities, penalties, fines, losses, costs and expenses (including, without limitation,
reasonable legal fees and expenses, including such fees and expenses in any arbitration, mediation,
litigation and on any appeal) (collectively referred to as “Losses”) suffered or incurred
by and all claims, actions, suits, or demands made against any Buyer Indemnified Party arising out
of or relating to:




     (a) any breach of any representation or warranty of the Seller or NRG contained in this
Agreement (including any of the related Disclosure Schedules thereto), any certificate
delivered by or on behalf of the Seller at the Closing or any Ancillary Agreement; and




     (b) any failure to perform any covenant of the Seller or Dynegy contained in this
Agreement or any Ancillary Agreement.



12









 





     8.2 The Buyer’s Indemnification Obligations. From and after the Closing, Buyer and
Dynegy agree, jointly and severally, to indemnify, defend and hold harmless the Seller, NRG and
their respective officers, directors, members, managers, stockholders, Affiliates, employees,
successors and assigns (collectively, the “Seller Indemnified Parties”) from and against
and reimburse each of the Seller Indemnified Parties with respect to any and all Losses suffered or
incurred by, and all claims, actions, suits or demands made against a Seller Indemnified Party
arising out of or relating to:




     (a) any breach of any representation or warranty of the Buyer contained in this
Agreement (including any of the related Disclosure Schedules thereto), in any certificate
delivered by or on behalf of the Buyer or Dynegy at the Closing and any Ancillary Agreement;
and




     (b) any failure to perform any covenants of the Buyer or Dynegy contained in this
Agreement or any Ancillary Agreement.



     8.3 Environmental Indemnification. Without limiting the generality of the obligations
of Buyer set forth in Section 8.2 above, Buyer and Dynegy agree, jointly and severally, to
release, indemnify, defend and hold harmless the Seller Indemnified Parties from and against, and
agree not to sue or join the Seller Indemnified Parties in any lawsuit or proceeding for, any and
all claims, actions, suits, demands, liabilities (including, without limitation, strict liability
arising under Environmental Laws), obligations, damages, judgments, awards, penalties, settlements,
fines, losses, costs, and expenses (including, without limitation, reasonable legal fees), of any
kind or nature, directly or indirectly resulting from, relating to or arising out of the following
and attributable to or arising from any event, condition, circumstance, activity, practice,
incident, action or plan existing, commencing, or occurring at any time, whether prior to or after
the closing, relating in any way to RRP or Termo Alpha or any of their respective assets or
Business Facilities (including without limitation the ownership, operation or use of any of the
Business Facilities):




     (a) Any actual or threatened violation of, liability under, non-compliance with, or
environmental response obligation arising pursuant to, any Environmental Laws;




     (b) Any liability, including, without limitation, strict liability, associated with the
treatment, storage, disposal, or transportation for treatment, storage, or disposal, of
Materials of Environmental Concern generated at any time by RRP, Termo Alpha or the Facility
or for which RRP or Termo Alpha arranged at any time for treatment, storage or disposal; and




     (c) The presence at any time of any Materials of Environmental Concern exceeding
naturally-occurring concentrations on, in, under or affecting all or any portion of any of
the Business Facilities of RRP or Termo Alpha or the Facility and any release or threatened
release at any time with respect to Materials of Environmental Concern.



     The obligations of the Buyer and Dynegy hereunder are not contingent upon the assertion of a
claim, directive, action or proceeding by a Governmental Authority or third party. Buyer



13









 




and
Dynegy shall be solely liable for all such environmental matters notwithstanding any Seller
Indemnified Party’s potential strict liability or alleged negligence.




     8.4 Tax Liability. Notwithstanding anything contained herein to the contrary, the
Buyer shall be under no duty or obligation to indemnify the Seller for any income tax liability due
to the assignment, sale or transfer of the Membership Interests.



     8.5 Survival Periods. The representations and warranties set forth in Section
3 and Section 4 shall survive the Closing for a period of two years; provided, however,
that the representations and warranties set forth in Section 3.1 (Ownership of Membership
Interests), Section 3.2 (Authority of Seller) and Section 4.2 (Authority of Buyer)
shall survive the Closing indefinitely. All other covenants and agreements of the Parties set
forth in this Agreement shall survive the Closing indefinitely.



     8.6 Limitations on Liability.




     (a) In no event shall Seller or NRG (determined on a combined basis) have any liability
or obligation with respect to claims pursuant to Section 8.1 for any amounts in
excess of the aggregate Purchase Price.




     (b) In no event shall Buyer or Dynegy (determined on a combined basis) have any
liability or obligation with respect to claims pursuant to Section 8.2 or
Section 8.3 for any amounts in excess of the aggregate Purchase Price.




     (c) No indemnifying Party (“Indemnitor”) shall have any obligation to indemnify
a Party for special, punitive, indirect or consequential damages, lost profits or similar
items, except with respect to matters involving actions, claims or other proceedings brought
or asserted by third parties and then only to the extent that an indemnified party
(“Indemnified Party”) is required to pay any such damages, lost profits or similar
items to such third parties. Nothing in this Agreement is intended to require the payment
by the Indemnitor of duplicative, in whole or in part, indemnity payments to an Indemnified
Party.




     (d) The amount of any Losses for which indemnification is provided by an Indemnitor
under Section 8.1 or Section 8.2 shall be net of (1) any amounts recovered
by the Indemnified Party with respect to such Losses pursuant to any indemnification by or
indemnification agreement with any third party in excess of any associated cost to the
Indemnified Party in obtaining such indemnification; (2) any insurance proceeds or other
reimbursement received as an offset against such Losses (and no right of subrogation shall
accrue hereunder to any insurer or third-party indemnitor); and (3) an amount equal to the
net cash tax benefit actually received attributable to such Losses. If the amount to be
netted is determined after payment by the Indemnitor of any amount, the Indemnified Party
shall repay to the Indemnitor, promptly after such determination, any amount that the
Indemnitor would not have had to pay pursuant to this Section 8.6 had such
determination been made at the time of payment.




     (e) All indemnification payments made in accordance with this Section 8 will be
treated as an adjustment to the Purchase Price, except to the extent that the Laws of a



14









 






particular jurisdiction provide otherwise, in which case such payments shall be made in an
amount sufficient to indemnify the relevant Party on an after-Tax basis (determined by
reference to actual out-of-pocket Tax liability incurred by the relevant Party).




     (f) Any claim for indemnification with respect to any of such matters identified in
Section 8.5 above which is not asserted by notice given as herein provided within
such specified period of survival may not be pursued and is hereby irrevocably waived after
such time.




     (g) No Party shall be required to pay or be liable for any Losses with respect to an
individual claim (which individual claim shall include claims arising out of the same or
substantially related circumstances) under Section 8.1 or Section 8.2 unless
and until the Losses for such claim exceed One Hundred Fifty Thousand Dollars ($150,000)
(the “De Minimis Amount”).




     (h) Except claims made pursuant to the Litigation Agreement for which there shall be no
Deductible, no Party shall be required to pay or be liable with respect to any claim for
indemnification under Section 8.1 or Section 8.2 unless and until the
aggregate amount of Losses to Buyer’s Indemnified Persons based upon, attributable to or
resulting from these indemnities of Sellers exceed, in the aggregate, Six Hundred Fifty
Thousand Dollars ($650,000) (the “Deductible”), disregarding any individual claim
(which individual claim shall include claims arising out of the same or substantially
related circumstances) that does not exceed the De Minimis Amount applicable pursuant to
Section 8.6(g) and then only to the extent that such Losses exceed the Deductible.



     8.7 Procedure for Indemnification Claims.




     (a) Third Party Claims.




     (i) Each Party shall, with reasonable promptness after obtaining knowledge
thereof, provide the other Party or parties against whom a claim for indemnification
is to be made under this Section 8 with written notice of all third party
actions, suits, proceedings, claims, demands or assessments that may be subject to
the indemnification provisions of this Section 8, (collectively, “Third
Party Claims”), which notice shall include a statement of the basis of the claim
for indemnification, including a summary of the facts or circumstances that form the
basis for the claim, a good faith estimate of the amount of Losses claimed by the
third party and copies of any pleadings or demands from the third party.
Notwithstanding the foregoing, provided that such notice is in any event given
within the survival periods stated in Section 8.5, the failure to provide
such notice reasonably promptly shall not release the Indemnitor from any of its
obligations under this Section 8, except to the extent that the Indemnitor
is materially prejudiced by such failure, and shall not relieve the Indemnitor from
any other obligation or liability that it may have to the Indemnified Party
otherwise than under this Section 8.



15









 






     (ii) A potential Indemnitor shall have 30 days after its receipt of the claim
notice to notify the potential Indemnified Party in writing whether or not the
potential Indemnitor agrees that the claim is subject to this Section 8 and,
if so, whether the Indemnitor elects to undertake, conduct and control, through
counsel of its choosing (subject to the consent of the Indemnified Party, such
consent not to be withheld unreasonably) and at its sole risk and expense, the
settlement or defense of the Third Party Claim; provided, however, that if legal
counsel to the Indemnified Party determines, in writing provided to Indemnitor, that
there exists or is reasonably likely to exist a conflict of interest which makes it
inappropriate for the same counsel to represent both the Indemnified Party and the
Indemnitor, then the Indemnified Party shall be entitled to retain its own counsel
(such counsel subject to the reasonable approval of the Indemnitor), with the
reasonable costs and expenses of such counsel to be paid by the Indemnitor.




     (iii) If within 30 days after its receipt of the claim notice the Indemnitor
notifies the Indemnified Party that it elects to undertake the settlement or defense
of the Third Party Claim, the Indemnified Party shall cooperate reasonably with the
Indemnitor in connection therewith including, without limitation, by making
available to the Indemnitor all relevant information and the testimony of employees
material to the defense of the Third Party Claim. The Indemnitor shall reimburse the
Indemnified Party for reasonable out-of-pocket costs incurred in connection with
such cooperation. The Indemnified Party shall be entitled to approve any proposed
settlement that would impose any obligation or duty on the Indemnified Party or
include a finding or admission of any violation of applicable law on the part of the
Indemnified Party, which approval shall not be unreasonably withheld. So long as the
Indemnitor is diligently and in good faith contesting the Third Party Claim (1) the
Indemnified Party shall be entitled to participate in all aspects of, but not
conduct or control, the settlement or defense of the Third Party Claim through
counsel and advisors chosen by the Indemnified Party, at its expense, and (2) the
Indemnified Party shall not pay or settle the Third Party Claim. Notwithstanding the
foregoing, the Indemnified Party shall have the right to pay or settle any Third
Party Claim at any time without the consent of the Indemnitor, provided that the
terms and conditions of such settlement involve solely the payment of money damages
and the Indemnified Party waives any right to indemnification therefor by the
Indemnitor.




     (iv) If the potential Indemnitor does not provide the notice described in
Section 8.7(a)(ii) within the 30-day period required thereby or if the
potential Indemnitor fails to either contest or undertake settlement negotiations in
connection with the Third Party Claim, the Indemnified Party shall thereafter have
the right to contest, settle or reach a compromise with respect to the Third Party
Claim at its exclusive discretion, at the risk and expense of the Indemnitor, and
the Indemnitor will thereby waive any claim, defense or argument that the
Indemnified Party’s settlement or defense of such Third Party Claim is in any
respect inadequate or unreasonable. Notwithstanding the foregoing, if the potential
Indemnitor fails to provide the notice described in Section 8.7(a)(ii)
within the 30-day period required thereby, the potential Indemnified Party shall



16









 






provide one fax notice of such Third Party Claim to the chief legal officer of the
potential Indemnitor. If the Potential Indemnitor still does not provide the
required notice within three days after receipt of such fax notice, the potential
Indemnitor shall not be deemed by such failure to have accepted liability for the
Third Party Claim except to the extent that the Indemnified Party is materially
prejudiced by the failure to provide notice within the 30-day period.




     (b) Non Third Party Claims.




     (i) Each Party shall deliver to the other Party or parties against whom a claim
for indemnification is to be made under this Section 8 written notice of any
claims for indemnification under this Section 8, other than Third Party
Claims, which notice shall include a statement of the basis of the claim for
indemnification, including a summary of the facts or circumstances that form the
basis for the claim, and a good faith estimate of the actual or future potential
amount of Losses.




     (ii) A potential Indemnitor shall have 30 days after its receipt of the claim
notice to notify the potential Indemnified Party in writing whether or not the
potential Indemnitor agrees that the claim is subject to this Section 8 (a
“Response Notice”). If the potential Indemnitor does not provide a Response
Notice to the Indemnified Party within the required 30-day period, the Indemnitor
shall be deemed to accept liability for all Losses described in the claim notice.
Notwithstanding the foregoing, if the potential Indemnitor fails to provide a
Response Notice within such 30-day time period the potential Indemnified Party shall
provide one fax notice of such claim to an officer of the potential Indemnitor. If
the potential Indemnitor does provide a Response Notice within three days after
receipt of such fax notice, the potential Indemnitor shall not be deemed by such
failure to have accepted liability for the claim except to the extent that the
Indemnified Party is materially prejudiced by the failure to provide such notice
within the 30-day period.




     (c) Exclusive Remedy. A Party’s right to indemnification provided in this
Section 8 is the sole and exclusive remedy of that Party from and after the Closing
with respect to any Losses arising out of or relating to the negotiation, execution,
delivery, performance or non-performance of this Agreement or the transactions contemplated
hereby; provided, however, that nothing in this Section 8.8 shall restrict or
prohibit any Party from bringing any action (i) for injunctive relief or specific
performance to the extent legally available or (ii) in the event of fraud by a Party. Each
Party waives any provision of applicable Law to the extent it would initiate, limit or
restrict the agreement in this Section 8.8.



SECTION 9. MISCELLANEOUS




     9.1 Costs and Expenses. Unless otherwise expressly provided in this Agreement, each
Party shall pay be responsible for and pay its own costs and expenses associated with the
performance of, and compliance with, all agreements and conditions contained herein on its part



17









 




to be performed or complied with, including, without limitation, fees, expenses and disbursements of
its attorneys, accountants and experts.




     9.2 Entire Agreement; Amendment; Waiver. This Agreement and all documents
specifically referenced herein, attached hereto or executed and delivered concurrently herewith
constitute the entire agreement between the Parties pertaining to the subject matter hereof and
supersede all prior agreements, correspondence, memoranda, representations and understandings of
the Parties. This Agreement may not be supplemented, modified or amended except by a written
instrument executed by the Seller and the Buyer. Except as may be otherwise provided in this
Agreement, no waiver of any of the provisions of this Agreement shall be deemed, or shall
constitute, a waiver of any other provision, whether or not similar, nor shall any waiver
constitute a continuing waiver, and no waiver shall be binding on any Party unless evidenced by an
instrument in writing executed by the Party against whom the waiver is sought to be enforced.



     9.3 Descriptive Headings. Descriptive headings are for convenience only and shall not
control or affect the meaning or construction of any provision of this Agreement.



     9.4 Counterparts. This Agreement may be executed in counterparts, any one of which
may be by facsimile followed thereafter by the originally executed document forwarded promptly
thereafter to the other Party, each of which shall be deemed an original, and all of which together
shall constitute one and the same instrument.



     9.5 Confidentiality. The Parties hereby shall treat this Agreement as confidential
information, and, unless required to do so by applicable law, applicable rules of stock exchanges,
or generally accepted accounting principles, neither the Seller nor the Buyer shall disclose any
information relative to the terms hereof to any third party without the prior consent of the other,
such consent not to be unreasonably withheld or delayed.



     9.6 Notices. All notices, consents, requests, instructions, approvals and other
communications provided for herein shall be validly given, made or served, if in writing and
delivered personally or by confirmed facsimile transmission or sent by United States first class
mail, registered or certified, postage prepaid, or by overnight courier addressed as follows:



	 	 	 
	If to the Seller:

	 	NRG Energy, Inc.
	 

	 	211 Carnegie Center
	 

	 	Princeton, NJ 08540
	 

	 	Attn: General Counsel
	 

	 	Fax: 609-524-4589
	 
	 	 
	Copy to:

	 	NRG Energy, Inc.
	 

	 	4600 Carlsbad Boulevard
	 

	 	Carlsbad, CA 92008
	 

	 	Attn: David Lloyd, Senior Attorney
	 

	 	Fax: 760-268-4017






18









 






	 	 	 
	If to the Buyer:

	 	Dynegy Inc.
	 

	 	1000 Louisiana Street, Suite 5800
	 

	 	Houston, TX 77002
	 

	 	Attn: Lynn Lednicky, Executive Vice President
	 

	 	Fax: 713-767-5181
	 
	 	 
	Copy to:

	 	Dynegy Inc.
	 

	 	1000 Louisiana Street, Suite 5800
	 

	 	Houston, TX 77002
	 

	 	Attn: J. Kevin Blodgett, General Counsel and
	 

	 	   Executive Vice President
	 

	 	Fax: 713-356-2185





or to such other address as either Party may from time to time designate to the other by notice.
Notice given as set out above shall be deemed delivered upon personal receipt, confirmed facsimile
transmission, if by mail three (3) days after the date same is postmarked or upon delivery by
overnight courier.




     9.7 Successors and Assigns. Subject to the provisions of Section 9.10, this
Agreement shall be binding upon and shall inure to the benefit of and be enforceable by the Parties
hereto, their respective successors and assigns.



     9.8 Governing Law. This Agreement shall be governed, construed and enforced in
accordance with the internal laws of the State of New York without regard to its conflict of laws
principles.



     9.9 Agreement Construction; Waiver. Each Party hereto has been represented by counsel
in the negotiation of this Agreement, and the rule that documents shall be construed against the
drafter shall not apply. The Parties agree that the execution by them of this Agreement shall
constitute a waiver of any consent, approval, notice, right of first refusal or right of first
offer or any other right under the LLC Agreement of RRP or Termo Alpha which conflicts with or
would be triggered by the execution, delivery or performance of this Agreement.



     9.10 Assignment. No Party may assign this Agreement or any of its rights, interest or
obligations hereunder without the prior written approval of the other Party; provided, however,
that the Buyer may assign all of its rights, interests, obligations and remedies hereunder to one
or more of its Affiliates with the Seller’s consent, which shall not be unreasonably withheld.



     9.11 Severability. Any term or provision of this Agreement that is invalid or
unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability
of the remaining terms and provisions hereof or the validity or enforceability of the offending
term or provision in any other situation or in any other jurisdiction.



19









 





     9.12 Electronic Signatures.




     (a) Notwithstanding the Electronic Signatures in Global and National Commerce Act (15
U.S.C. Sec. 7001 et seq.), the Uniform Electronic Transactions Act, or any other Law
relating to or enabling the creation, execution, delivery, or recordation of any contract or
signature by electronic means, and notwithstanding any course of conduct engaged in by the
Parties, no Party shall be deemed to have executed this Agreement or any Ancillary Agreement
(including any amendment or other change thereto) unless and until such Party shall have
executed this Agreement or such Ancillary Agreement or other document on paper by a
handwritten original signature or any other symbol executed or adopted by a Party with
current intention to authenticate this Agreement or such Ancillary Agreement or such other
document contemplated.




     (b) Delivery of a copy of this Agreement or any Ancillary Agreement or such other
document bearing an original signature by facsimile transmission (whether directly from one
facsimile device to another by means of a dial-up connection or whether mediated by the
worldwide web), by electronic mail in “portable document format” (“.pdf”) form, or
by any other electronic means intended to preserve the original graphic and pictorial
appearance of a document, or by combination of such means, shall have the same effect as
physical delivery of the paper document bearing the original signature. “Originally signed”
or “original signature” means or refers to a signature that has not been mechanically or
electronically reproduced.



[Signature page follows]





20










 







          IN WITNESS WHEREOF, Buyer, Seller, NRG and Dynegy have caused this Agreement to be duly
executed on their respective behalf as of the date and year first written above.



	 	 	 	 	 	 	 
	 	 	SELLER:
	 
	 	 	 	 	 	 
	 	 	NRG ROCKY ROAD LLC
	 
	 	 	 	 	 	 
	 

	 	By:	  /s/ David Lloyd
	 	 	 	 
	 	 	Printed Name:	 	David Lloyd
	 

	 	 	 	 	 	 
	 

	 	Title:	  Secretary
	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	NRG:
	 
	 	 	 	 	 	 
	 	 	NRG ENERGY, INC.
	 
	 	 	 	 	 	 
	 

	 	By:	  /s/ Robert C. Flexon
	 	 	 	 
	 	 	Printed Name:	 	Robert C. Flexon
	 

	 	 	 	 	 	 
	 

	 	Title:	  Chief Financial Officer
	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	BUYER:
	 
	 	 	 	 	 	 
	 	 	TERMO SANTANDER HOLDING, L.L.C.
	 
	 	 	 	 	 	 
	 

	 	By:	  /s/ Carolyn J. Stone
	 	 	 	 
	 	 	Printed Name:	 	Carolyn J. Stone
	 

	 	 	 	 	 	 
	 

	 	Title:	  Senior Vice President and Controller
	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	DYNEGY:
	 
	 	 	 	 	 	 
	 	 	DYNEGY INC.
	 
	 	 	 	 	 	 
	 

	 	By:	  /s/ Lynn A. Lednicky
	 	 	 	 
	 	 	Printed Name:	 	Lynn A. Lednicky
	 

	 	 	 	 	 	 
	 

	 	Title:	  Executive Vice President
	 	 	 	 





 









 






EXHIBIT A




CERTAIN DEFINITIONS




“Affiliate” means with respect to any specified Person, a Person that directly, or indirectly
through one or more intermediaries, controls, or is controlled by, or is under common control with,
the Person specified. For purposes of this definition, “control” (including the correlative terms
“controlling,” “controlled by” and “under common control with”) means the possession, direct or
indirect, of the power to direct or cause the direction of the management and policies of a Person,
whether through the ownership of voting equity interest, by contract or otherwise. Notwithstanding
anything in the Agreement to the contrary, RRP and Termo Alpha shall not be deemed Affiliates of
Seller or NRG for purposes of this Agreement.



“Agreement” shall have the meaning set forth in the introductory paragraph to this agreement.



“Ancillary Agreement” means the Assignment of Membership Interests and Mutual Release and Waiver of
Claims.



“Business Facility” means any property (whether real or personal) and all appurtenant rights which
RRP or Termo Alpha currently leases, operates, owns, or manages in any manner or which RRP, Termo
Alpha or any of their Affiliates or predecessors formerly leased, operated, owned or managed in any
manner, including without limitation the Facility.



“Buyer” shall have the meaning set forth in the introductory paragraph to this agreement.



“Buyer Indemnified Parties” shall have the meaning set forth in Section 8.1.



“Closing” shall have the meaning set forth in Section 2.1.



“Contract” means any contact, lease, sublease, license, indenture, instrument, agreement,
guarantee, commitment or other legally binding arrangement.



“Deductible” shall have the meaning set forth in Section 8.6(h).



“De Minimis Amount” shall have the meaning set forth in Section 8.6(g).



“Dynegy” shall have the meaning set forth in the introductory paragraph to this agreement.



“Encumbrances” means liens, claims, charges, limitations, encumbrances, agreements and restrictions
of any kind or nature.



“Environmental Laws” means any and all treaties, statutes, laws, rules, regulations, ordinances,
common law, orders, consent agreements, orders on consent, or guidance documents now or hereafter
in effect of any applicable international, federal, state or local executive, legislative,
judicial, regulatory, or administrative agency, board, tribunal, or authority or any associated



 









 





judicial or administrative decision that relate in any manner to health, the environment,
pollution, the emission, discharge, release, treatment, storage, disposal, management, or response
to Materials of Environmental Concern, a community’s right to know, or worker protection.



“FERC” means the Federal Energy Regulatory Commission.



“Facility” shall have the meaning set forth in the Recitals.



“Final Allocation” shall have the meaning set forth in Section 2.5(b).



“First Outside Date” shall have the meaning set forth in Section 7.1(b).



“Governmental Authority” means any foreign, federal, state or local government, court, arbitrator,
agency or commission or other governmental or regulatory body or authority.



“Indemnified Party” shall have the meaning set forth in Section 8.6(c).



“Indemnitor” shall have the meaning set forth in Section 8.6(c).



“Knowledge” means the actual knowledge of such fact or other matter (without investigation) of Alan
Stewart or Jonathan Baylor.



“Law” or “Laws” means any federal, state or local (including common law), statute, code, ordinance,
rule or regulation.



“Losses” shall have the meaning set forth in Section 8.1(a).



“Material Adverse Effect” means a material adverse effect on the business, assets, financial
condition, results of operations of RRP and Termo Alpha, taken as a whole, except for any such
effect resulting from or arising out of (a) changes in economic conditions generally or the
industry in which the RRP and/or Termo Alpha operates, (b) changes in international, national,
regional, state or local wholesale or retail markets for electric power or fuel or related products
including those due to actions by competitors, (c) changes in general regulatory or political
conditions (other than items addressed in clauses (d) and (h)), (d) changes of laws governing
national, regional, state or local electric transmission or distribution systems, (e) strikes, work
stoppages or other labor disturbances, (f) increases in costs of commodities or supplies, including
fuel, (g) effects of weather or meteorological events, (h) any change of laws (other than changes
of laws governing electric transmission or distribution systems), and (i) any actions to be taken
pursuant to or in accordance with this Agreement.



“Materials of Environmental Concern” means: (i) substances, materials, or wastes that are or
become classified or regulated under any applicable Environmental Law; (ii) those substances,
materials, or wastes included within statutory and/or regulatory definitions or listings of
“hazardous substance,” “special waste” “hazardous waste,” extremely hazardous substance,” “solid
waste” “medical waste,” “regulated substance,” “hazardous materials,” “toxic substances,” or “air
contaminant” under any Environmental Law; and/or (iii) any substance, material, or waste



2









 





which is or contains: (A) petroleum, oil or any fraction thereof, (B) explosives, or (C)
radioactive materials (including naturally occurring radioactive materials).



“Membership Interests” shall have the meaning set forth in the Recitals.



“NRG” shall have the meaning set forth in the introductory paragraph to this agreement.



“Originally Signed” or “Original Signature” shall have the meaning set forth in Section
9.12(b).



“Party” or “Parties” shall have the meaning set forth in the introductory paragraph to this
agreement.



“Permit” means any permit, franchise, consent, approval, license, certificate, privilege or similar
authorization.



“Person” means any natural person, firm, partnership, association, corporation, company, trust,
business trust, or other entity or Governmental Authority.



“Purchase Price” shall have the meaning set forth in Section 2.2.



“RRP” shall have the meaning set forth in the Recitals.



“Second Outside Date” shall have the meaning set forth in Section 7.1(c).



“Seller” shall have the meaning set forth in the introductory paragraph to this agreement.



“Seller Indemnified Parties” shall have the meaning set forth in Section 8.2.



“Tax” or “Taxes” means any and all taxes, fees, levies, duties, tariffs, imposts and charges of any
kind imposed by a Governmental Authority (including, without limitation, federal, state, local, and
foreign income, gross receipts, license, payroll, employment, excise, severance, stamp, occupation,
premium, windfall profits, environmental, customs duties, capital stock, franchise, profits,
withholding, social security, unemployment, disability, real property, personal property, sales,
use, transfer, registration, value added, alternative or add-on minimum, estimated or other Tax),
whether computed on a separate or consolidated, unitary or combined basis or in any other manner,
including any interest, penalty or addition thereto, whether or not disputed and including any
obligation to indemnify or otherwise assume or succeed to the Tax liability of any other Person.



“Tax Returns” means any report, return, including any pro forma state tax returns prepared
consistently with past practices of RRP and Termo Alpha, election, document, estimated tax filing,
declaration, or other filing provided to any Governmental Authority including any amendments
thereto.



“Termo Alpha” shall have the meaning set forth in the Recitals.



“Third Party Claims” shall have the meaning set forth in Section 8.7(a)(i).



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“West Coast Power Purchase Agreement” means that certain Purchase Agreement dated of even date
herewith by and among NRG West Coast, LLC (“NRG West Coast”), NRG Energy, Inc., DPC II, Inc.
(“DPC”) and Dynegy Inc. regarding the acquisition by NRG West Coast of all of DPC’s membership
interest in WCP (Generation) Holdings, LLC.




4









 






EXHIBIT B




FORM OF ASSIGNMENT OF MEMBERSHIP INTEREST




     THIS ASSIGNMENT OF MEMBERSHIP INTEREST (“Assignment”) effective as of                     ,
2006 (“Effective Date”), is between NRG Rocky Road LLC, a Delaware limited liability
company (“Assignor”), and Termo Santander Holding, LLC, a Delaware limited liability
company (“Assignee”).



W I T N E S S E T H:




     WHEREAS, the Assignor and Assignee each own 50% of the issued and outstanding Membership
Interests of Rocky Road Power, LLC, a Delaware limited liability company (“RRP”), and Termo
Santander (Alpha) Holding, LLC, a Delaware limited liability company (“Termo Alpha”);



     WHEREAS, pursuant to that certain Purchase Agreement dated as of December           , 2005 (the
“Purchase Agreement”), by and among NRG Energy, Inc., a Delaware corporation, Assignor, Assignee,
and Dynegy Inc., an Illinois corporation, the Assignor has agreed to sell, transfer and assign, and
the Buyer has agreed to purchase, all of Assignor’s membership interests in RRP and Termo Alpha
(such membership interests shall be referred to herein collectively as the “Membership
Interests”); and



     WHEREAS, in order to effectuate the sale, transfer and assignment of the Membership Interests
to the Assignee, the Assignor is executing and delivering this Assignment.



     NOW THEREFORE, in consideration of the premises, the mutual covenants and agreements contained
herein and other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Assignor hereby acts and agrees as follows:



     1. Conveyance of Interest. Assignor hereby CONVEYS, TRANSFERS, ASSIGNS AND DELIVERS
unto Assignee and its successors and assigns all of Assignor’s right, title and interest in and to
the Membership Interests, free and clear of all Encumbrances (as defined in the Purchase
Agreement), upon and subject to the terms, conditions and provisions of the Purchase Agreement.



     2. Further Documents. Assignor covenants and agrees with Assignee that Assignor, its
successors and assigns shall execute, acknowledge and deliver such other instruments of conveyance
and transfer and take such other action as may reasonably be required to more effectively convey,
transfer, assign and deliver to and vest in Assignee, or its successors and assigns, and to put
Assignee, or its successors and assigns, in possession of the Membership Interests conveyed,
transferred, assigned and delivered hereunder.



     3. Counterparts. This Assignment may be executed in any number of counterparts, and
each counterpart hereof shall be deemed to be an original instrument, but all such counterparts
shall constitute but one agreement.



 









 





     4. Governing Law. The validity of this Assignment shall be governed by, construed and
enforced in accordance with the laws of the State of New York without regard to its conflicts of
laws principles.



     5.  Successors and Assigns. This Assignment shall bind the Assignor and its
successors and assigns and inure to the benefit of the Assignee and its successors and assigns.



     6. Purchase Agreement. This Assignment is subject and subordinate to all of the terms
and provisions of the Purchase Agreement, and in the event of any conflict between any term or
provision hereof and any term or provision of the Purchase Agreement, the latter shall control.



     EXECUTED effective as of the date first above written.



	 	 	 	 	 	 	 
	 	 	“ASSIGNOR”
	 
	 	 	 	 	 	 
	 	 	NRG ROCKY ROAD LLC, a Delaware limited liability

company
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 	 	 	 
	 	 	Printed Name:	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	“ASSIGNEE”
	 
	 	 	 	 	 	 
	 	 	TERMO SANTANDER HOLDING, LLC, a Delaware limited

liability company
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 	 	 	 
	 	 	Printed Name:	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 	 	 	 






 









 






EXHIBIT C




FORM OF MUTUAL RELEASE AND WAIVER AGREEMENT




     This Mutual Release and Waiver Agreement (this “Release”) is executed and delivered as
of the Effective Date (defined below) by and between Dynegy Inc., an Illinois corporation
(“Dynegy”), Termo Santander Holding, L.L.C., a Delaware limited liability company
(“Buyer”), Rocky Road Power, LLC, a Delaware limited liability company (“RRP”) and
Termo Santander (Alpha) Holding, LLC, a Delaware limited liability company (“Termo Alpha”),
on the one hand, and NRG Energy, Inc., a Delaware corporation (“NRG”) and NRG Rocky Road
LLC, a Delaware limited liability company (“Seller”), on the other hand. Dynegy, DPC, DHI,
Buyer, RRP and Termo Alpha are referred to herein as the “Dynegy Parties”. NRG and Seller
are referred to herein as the “NRG Parties”. Dynegy, Buyer, RRP, Termo Alpha, NRG and
Seller are sometimes referred to herein individually as a “Party” and collectively as the
“Parties”.



     WHEREAS, pursuant to that certain Purchase Agreement dated December___, 2005, by and between
Buyer and Dynegy, on the one hand, and Seller and NRG, on the other hand, (the “Purchase
Agreement”), Buyer agreed to purchase all of Seller’s membership interest in RRP and Termo
Alpha; and



     WHEREAS, in connection with the Closing under the Purchase Agreement, the Parties hereto
hereby desire to release each other from and waive certain claims as more particularly described
herein.



     NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein and
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties hereto hereby agree as follows:



     1. Defined Terms. All capitalized terms not otherwise defined herein shall have the
meanings ascribed to them in the Purchase Agreement. “Effective Date” means the date of
Closing under the Purchase Agreement.



     2. Release and Waiver of Claims by the Dynegy Parties.




     (a) Subject to the last sentence of this Section 2(a), the NRG Parties
effective upon the Effective Date unconditionally and irrevocably release, waive and forever
give up any and all Claims (as defined below) against the Dynegy Parties and their
respective principals, representatives and successors in interest (collectively, the
“RRP Released Parties”). This is a general release that specifically
extends to and encompasses all Claims of the NRG Parties, including Claims of the NRG
Parties of which the NRG Parties may not now be aware. The NRG Parties represent and
warrant that the NRG Parties have not previously alienated or purported to grant anyone else
any interest whatsoever in any Claims of the NRG Parties and that the NRG Parties release of
all Claims of the NRG Parties pursuant to this Release does not require the consent of or
notice to any other party. Notwithstanding anything in this Release to the contrary,
nothing herein shall be deemed to release or waive any Claim by any of the NRG Parties (i)
to enforce the terms and conditions of this Release or any of their rights under the
Purchase Agreement, including, but not limited to, rights of indemnification, or (ii) which



 









 







arises out of any Claim by a third party or Governmental Authority against any of the
NRG Parties or against any of their respective Affiliates and/or, with respect to any such
Claim by a third party or Governmental Authority, gives rise to a right of indemnification,
recovery or contribution under applicable Law or otherwise.




     (b) As used in Section 2 above and in Section 3 below, the term
“Claims” means all claims, causes of action, damages, demands, obligations,
promises, costs and expenses (including court costs and attorneys’ fees), rights and
remedies, at law or in equity, whether known or unknown, whether sounding in contract, tort,
strict liability or any other common law or statutory basis which relate in any way to the
Membership Interests, RRP, Termo Alpha or the Facility.




     (c) The NRG Parties hereby acknowledge that there is a risk that, subsequent to the
execution of this Release, they may discover, incur or suffer from claims which were unknown
or unanticipated at the time this Release was executed, including unknown or unanticipated
claims which arise from, are based upon or are related to the issues and matters addressed
herein which, if known on the date this Release was executed, may have materially affected
their decision to execute this Release. The NRG Parties acknowledge that they are assuming
the risk of such unanticipated claims and agree that this Release applies thereto.



     3. Release and Waiver of Claims by the NRG Parties.




     (a) Subject to the last sentence of this Section 3(a), the Dynegy Parties
effective upon the Effective Date unconditionally and irrevocably release, waive and forever
give up any and all Claims (as defined above) of the Dynegy Parties against the NRG Parties
and their respective principals, representatives and successors in interest (collectively,
the “NRG Released Parties”). This is a general release that specifically
extends to and encompasses all Claims of the Dynegy Parties, including Claims of the Dynegy
Parties of which the Dynegy Parties may not now be aware. The Dynegy Parties represent and
warrant that the Dynegy Parties have not previously alienated or purported to grant anyone
else any interest whatsoever in any Claims of the Dynegy Parties and that the Dynegy Parties
release of all Claims of the Dynegy Parties pursuant to this Release does not require the
consent of or notice to any other party. Notwithstanding anything in this Release to the
contrary, nothing herein shall be deemed to release or waive any Claim by any of the Dynegy
Parties (i) to enforce the terms and conditions of this Release or any of their rights under
the Purchase Agreement, including, but not limited to, rights of indemnification, or (ii),
subject to Section 8.3 of the Purchase Agreement, which arises out of any Claim by a third
party or Governmental Authority against any of the Dynegy Parties or against any of their
respective Affiliates or, with respect to any such Claim of a third party or Governmental
Authority, gives rise to a right of indemnification, recovery or contribution under
applicable Law or otherwise.




     (b) The Dynegy Parties hereby acknowledge that there is a risk that, subsequent to the
execution of this Release, they may discover, incur or suffer from claims which were unknown
or unanticipated at the time this Release was executed, including unknown or unanticipated
claims which arise from, are based upon or are related to the issues and matters addressed
herein which, if known on the date this



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Release was executed, may have materially affected their decision to execute this
Release. The Dynegy Parties acknowledge that they are assuming the risk of such
unanticipated claims and agree that this Release applies thereto.



     4. Counterparts; Governing Law; Venue. This Release may be executed and delivered in
any number of counterparts, each of which shall be deemed to be an original, but all such
counterparts together shall constitute one and the same instrument, and it shall not be necessary
in making proof of this Release to produce or account for more than one such counterpart. This
Release shall be construed under and governed by the laws of the State of New York, without regard
to its conflict of laws principles. Each of the Parties submits to the jurisdiction of New York,
New York in any action or proceeding arising out of or relating to this Release and agrees that all
claims in respect of the action or proceeding may be heard and determined in any such court. Each
Party also agrees not to bring any action or proceeding arising out of or relating to this Release
in any other court or tribunal. Each of the Parties waives any defense of inconvenient forum to
the maintenance of any such action or proceeding so brought. Each Party agrees to frame any
complaint brought in any such action or proceeding to support federal court jurisdiction if grounds
for federal jurisdiction exist, and further agrees that any of the other Parties may required such
Party to dismiss any state law case where a federal court would have jurisdiction over the subject
matter.



     5. Rules of Construction. In this Release, the word “include(s)” means “include(s),
without limitation,” and the word “including” means “including, but not limited to.” When the
context and construction so require, all words used in the singular shall be deemed to have been
used in the plural and vice versa. All headings appearing in this Release are for convenience only
and shall be disregarded in construing this Release.



     6. Severability. If any term or provision of this Release is determined to be
invalid, illegal or unenforceable under applicable law, the remaining terms and provisions of this
Release shall remain in full force and effect to the extent permitted by law. In the event of any
such determination, the Parties agree to negotiate in good faith to modify this Release to fulfill
as closely as possible the original intents and purposes hereof. To the extent permitted by law,
the Parties hereby waive to the same extent any provision of law that renders any provision hereof
prohibited or unenforceable in any respect.



     7. Integration; Modifications. This Release (a) integrates all the terms and
conditions mentioned in or incidental to this Release, and (b) supersedes all prior negotiations
and all prior oral or written representations, understandings, promises, commitments, and
agreements between the Parties or any of their affiliates, except the Purchase Agreement and the
Ancillary Agreements, with respect to its subject matter. The Parties agree, each on behalf of
itself and its Affiliates, that no representation, understanding, promise, commitment or agreement
relating to the subject matter of this Release shall be enforceable against any Party or its
Affiliates unless it is contained in this Release. No term of this Release may be amended, waived,
or otherwise modified except in a writing signed by all Parties.



     8. No Waiver. Failure to insist on compliance with any term or provision contained in
this Release shall not be deemed a waiver of that term or provision, nor shall any waiver or
relinquishment of any right or power contained in this Release at any one time or more times be
deemed a waiver or relinquishment of any right or power at any other time or times.



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     9. Further Actions. Each of the Parties agrees to take any and all actions reasonably
necessary in order to effectuate the intent, and to carry out the provisions, of this Release.



[Signature Pages Follow]




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     IN WITNESS WHEREOF, the Parties hereto have executed this Release as of the Effective Date.



	 	 	 	 	 	 	 
	 	 	Dynegy:
	 
	 	 	 	 	 	 
	 	 	 	 	Dynegy Inc.
	 
	 	 	 	 	 	 
	 

	 	 	 	By:	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	Buyer:
	 
	 	 	 	 	 	 
	 	 	 	 	Termo Santander Holding, L.L.C.
	 
	 	 	 	 	 	 
	 

	 	 	 	By:	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	Termo Alpha:
	 
	 	 	 	 	 	 
	 	 	 	 	Termo Santander (Alpha) Holdings LLC
	 
	 	 	 	 	 	 
	 

	 	 	 	By:	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	RRP:
	 
	 	 	 	 	 	 
	 	 	 	 	Rocky Road Power, LLC
	 
	 	 	 	 	 	 
	 

	 	 	 	By:	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	NRG:
	 
	 	 	 	 	 	 
	 	 	 	 	NRG Energy, Inc.
	 
	 	 	 	 	 	 
	 

	 	 	 	By:	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 
	 

	 	 	 	 	 	 





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	 	 	Seller:
	 
	 	 	 	 	 	 
	 	 	 	 	NRG Rocky Road LLC
	 
	 	 	 	 	 	 
	 

	 	 	 	By:	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 
	 

	 	 	 	 	 	 






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