Filed by Bowne Pure Compliance





Exhibit 10.98




AMENDMENT TO TRUST AGREEMENT




THIS
AMENDMENT (the “Amendment”) to the Trust Agreement dated December 31, 2003 (the ‘Trust”)
is entered into as of January 1, 2006, between DYNEGY INC., an Illinois corporation (the
“Company”) and VANGUARD FIDUCIARY TRUST COMPANY, a trust company incorporated under Chapter 10 of
the Pennsylvania Banking Code (the “Trustee”).



WITNESSETH




WHEREAS, the Company and the Dynegy Inc. Benefit Plans Committee (the “Plan Administrator”)
have entered into an agreement (the “FCI Agreement”) with Fiduciary Counselors Inc. (the
“Independent Fiduciary”) pursuant to which the Independent Fiduciary was appointed by the Plan
Administrator to have the sole and exclusive fiduciary responsibility with respect to the
continued offering and operation of the Dynegy Stock Fund and with respect to the continued
holding of Class A common stock of the Company (“Company Stock”) in the Dynegy Northeast
Generation Inc. Savings Incentive Plan (the “Plan”);



WHEREAS, pursuant to the FCI Agreement, the Independent Fiduciary received certain powers to
direct the Trustee with respect to the Dynegy Stock Fund and the Company Stock, and the
Independent Fiduciary agreed to perform certain duties with respect to the Dynegy Stock Fund and
the Company Stock; and



WHEREAS, the Company and the Trustee deem it necessary and desirable to amend the Trust
Agreement to reflect the appointment of the Independent Fiduciary and to authorize it to have
certain powers and to perform the duties specified in this Amendment with respect to the Dynegy
Stock Fund and the Company Stock.



NOW, THEREFORE, in consideration of the mutual covenants herein contained, the parties hereto,
intending to be legally bound, hereby agree and declare as follows:



1. Section 2.1 of the Trust is hereby amended in its entirety to provide as follows:




“The Plan Administrator shall have the exclusive authority and discretion to
select the investment funds available for investment under the Plan, other
than the Dynegy Stock Fund, which shall be offered as an investment fund
available for investment under the Plan in accordance with the provisions of
the Plan and Section 2.5 hereof (the selected investment funds and the
Dynegy Stock Fund are collectively referred to as the “Investment Funds”).
The Plan Administrator shall notify the Trustee in writing of the selection
of the Investment Funds currently available for investment under the Plan,
and any changes thereto. To the extent provided in the Plan and Master Trust
Agreement (as defined below), the Plan Administrator may also direct the
Trustee from time to time to cause assets in the Fund to be delivered to the
trustee under that certain Master Trust Agreement effective January
1, 2002 between
Dynegy Inc. and Vanguard Fiduciary Trust Company (the “Master Trust
Agreement”) which established a master trust (the “Master Trust”), and such
assets shall be held, administered and invested pursuant to the Master Trust
Agreement. The Master Trust is hereby adopted as a part of this Agreement
and the Plan.”


 


 









 





2. Section 2.2 of the Trust is amended in its entirety to read as follows:




“Section 2.2. Subject to the provisions of Section 2.5 hereof and the
Plan, each Participant shall have the exclusive right, in accordance with the
provisions of the Plan, to direct the investment by the Trustee of all
amounts allocated to the separate accounts of the Participant under the Plan
among any one or more of the available Investment Funds. All investment
directions by Participants shall be timely furnished to the Trustee by the
Plan Administrator, except to the extent such directions are transmitted
telephonically or otherwise by Participants directly to the Trustee or its
delegate in accordance with rules and procedures established and approved by
the Plan Administrator and communicated to the Trustee. In making any
investment of the assets of the Fund, the Tmstee shall be fully entitled to
rely on such directions furnished to it by the Plan Administrator,
Independent Fiduciary or Participants in accordance with the provisions of
the Plan and the Plan Administrator’s approved rules and procedures, and
shall be under no duty to make any inquiry or investigation with respect
thereto. The Plan Administrator may designate a default fund under the Plan
in which the Trustee shall deposit contributions to the Fund on behalf of
Participants who have been identified by the Plan Administrator as having not
specified investment choices under the Plan. In addition, the Independent
Fiduciary may also designate a default fund pursuant to Section 2.5. If the
Trustee receives any contribution under the Plan that is not accompanied by
instructions directing its investment, the Trustee shall immediately notify
the Plan Administrator or the Independent Fiduciary, as applicable, of that
fact, and the Trustee may, in its discretion, hold all or a portion of the
contribution uninvested without liability for loss of income or appreciation
pending receipt of proper investment directions (which proper investment
directions shall include the designation of a default fund as provided in the
preceding sentences). Otherwise, it is specifically intended under the Plan
and this Agreement that the Trustee shall have no discretionary authority to
determine the investment of the assets of the Fund.”



3. Subsection 2.3(a) of the Trust is hereby amended by adding the phrase, “subject to
the provisions of Section 2.5,” to the beginning thereof.


 


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4. Subsection 2.3(b) of the Trust is hereby amended in its entirety to provide as
follows:




“(b) to dispose of all or any part of the investments, securities other
than Company Stock, or other property which may from time to time or at any
time constitute the Fund or portion thereof in accordance with the
investment directions by Participants furnished to it pursuant to Section
2.2 or the written directions by the Plan Administrator furnished to it
pursuant to Section 1.3, or to dispose of all or any part of the Company
Stock which may from time to time or at any time constitute a portion of the
Fund in accordance with the investment directions by Participants furnished
to it pursuant to Section 2.2 or the written directions by the Independent
Fiduciary pursuant to Section 2.5, and to make, execute and deliver to the
purchasers thereof good and sufficient deeds of conveyance therefore, and
all assignments, transfers and other legal instruments, either necessary or
convenient for passing the title and ownership thereto, free and discharged
of all trusts and without liability on the part of such purchasers to see to
the application of the purchase money;”



5. A new Section 2.5 is hereby added to the Trust to provide as follows:




“Section 2.5. Notwithstanding any other provision of this Agreement to the
contrary, the Independent Fiduciary shall have the sole and exclusive
authority to determine whether acquiring or holding Company Stock in the Plan
and Fund is no longer consistent with the Employee Retirement Income Security
Act of 1974, as amended (“ERISA”) and it shall be the sole named fiduciary
for such purpose. If the Independent Fiduciary makes such a determination, it
shall have the power to determine whether to:




	 	(a)	 	prohibit or limit (for example, as a percentage of a
Participant’s account) further purchases or holdings of Company Stock or
increasing the Dynegy Stock Fund’s holding of cash or cash equivalent
investments, and in the event of such prohibition or limitation, to
designate, as necessary, an alternative investment fund for the
investment of the proceeds pending further investment directions by the
Plan’s Participants and beneficiaries;

	 
	 	(b)	 	liquidate some or all of the Plan’s holdings in Company
Stock and determine how such liquidation should be accomplished and in
the event of such liquidation, to designate, as necessary, an
alternative investment fund for the investment of the proceeds pending
further investment directions by the Plan’s Participants and
beneficiaries; or





 


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	 	(c)	 	terminate the availability of the Dynegy Stock Fund as an
investment option under the Plan on such terms and conditions as the
Independent Fiduciary shall deem prudent and in the interest of the
Plan and its Participants and beneficiaries (and notwithstanding any
Participant or beneficiary investment directions to the contrary),
including the determination of the manner and timing of termination
of the Dynegy Stock Fund and orderly liquidation of its assets and
designation of an alternative investment fund for the investment of
the proceeds pending further investment directions by the Plan’s
Participants and beneficiaries.







The Independent Fiduciary shall direct the Trustee to take such actions as
are necessary and appropriate to implement and administer the Independent
Fiduciary’s determinations under this Section 2.5, and the Trustee shall be
fully entitled to rely on such directions, and the Trustee shall be under no
duty to ascertain whether such directions are in accordance with the
provisions of the Plan.”



6. Section 3.1 of the Trust is hereby deleted and the remaining Sections of Article III
renumbered accordingly.



7. The second sentence of Section 4.5 of the Trust is hereby amended in its entirety to
provide as follows:




“The Trustee shall be the fiduciary who is responsible for ensuring that
such procedures are sufficient to safeguard the confidentiality of the
information described above and that such procedures are followed; provided,
however, the Independent Fiduciary shall be the fiduciary responsible for
ensuring the confidentiality of the proxy voting process.”



8. A new Section 4.6 is hereby added to the Trust to provide as follows:




“Section 4.6. The Independent Fiduciary shall direct the Trustee to execute
and deliver such forms and other documents as the Independent Fiduciary may
determine are advisable to be filed with the Securities and Exchange
Commission or other governmental agency, and the Trustee shall be fully
entitled to rely on such directions.”



9. Sections 7.1 and 7.2 of the Trust are hereby amended by adding the phrase “or the
Independent Fiduciary” immediately following the term “Plan Administrator” in such Sections.



10. This Amendment may be executed in separate counterparts, which together shall constitute
one agreement.


 


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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the day and year
first written above.



	 	 	 	 	 
	 	DYNEGY INC.

 	 
	 	By:  	
/s/ [ILLEGIBLE]
 	 
	 	 	Title:  Vice President, HR	 
	 	 	 	 
	 	VANGUARD FIDUCIARY TRUST COMPANY

 	 
	 	By:  	/s/ Dennis Simmons
 	 
	 	 	Title:  Principal
Dennis Simmons	 



	 	 	 	 	 
	AGREED TO AND APPROVED BY:
	
FIDUCIARY COUNSELORS INC.	 	 
	 
	 	 	 	 
	By:

	 	/s/ [ILLEGIBLE]	 	 
	 

	 	 	 	 
	 

	 	Title: President & CEO	 	 







 


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