ASSET PURCHASE AGREEMENT

Exhibit 10.1

ASSET PURCHASE AGREEMENT

by and between

DUKE ENERGY INDIANA, INC.

as Seller,

and

WABASH VALLEY POWER ASSOCIATION, INC.,

as Buyer

Dated as of December 1, 2006

TABLE OF CONTENTS

Schedules and Exhibits

Exhibits

Exhibit A Assignment and Assumption Agreement

Exhibit B Bill of Sale

Exhibit C Deed

Exhibit D Facilities Operation and Services Agreement

Exhibit E FIRPTA Affidavit

Exhibit F Memorandum of Facilities Operation and Services Agreement

Exhibit G Operation and Maintenance Agreement

Exhibit H Authorized Representation Agreement

Schedules

Schedule 1.1(51) Gasification Real Property

Schedule 1.1(65) Knowledge

Schedule 1.1(84) Permitted Encumbrances

Schedule 1.1(98) Seller’s Agreements

Schedule 1.1(108) Station Permits

Schedule 1.1 (110) Stormwater Pond Real Property

Schedule 1.1(123) Unit 1 Improvements

Schedule 1.1(124) Unit 1 Permits

Schedule 1.1(125) Unit 1 Real Property

Schedule 2.1(a)(iii) Tangible Personal Property and GSUs

Schedule 2.1(a)(xi) Intellectual Property

Schedule 2.2(n) Other Excluded Assets

Schedule 2.2(p) CF

Schedule 3.2 Net Book Value Calculation

Schedule 4.3(a)(i) Seller’s Required Third Party Consents

Schedule 4.3(b) Seller’s Required Regulatory Approvals

Schedule 4.5(a) Permits

Schedule 4.5(b) Violations; Claims

Schedule 4.5(c) Outstanding Judgments, Decrees or Judicial Orders

Schedule 4.7 Condemnation

Schedule 4.8(a) Material Contracts

Schedule 4.8(b) Contract Matters

Schedule 4.8(c) Default

Schedule 4.9 Legal Proceedings

Schedule 4.10(a) Permit Exceptions

Schedule 4.10(b) Other Permits

Schedule 4.11 Taxes

Schedule 4.12 Intellectual Property Matters

Schedule 5.3(a)(ii) Buyer’s Required Third Party Consents

Schedule 5.3(b) Buyer’s Required Regulatory Approvals

Schedule 6.1 Conduct of Business Relating to the Purchased Assets

ASSET PURCHASE AGREEMENT

ASSET PURCHASE AGREEMENT (this " Agreement "), dated as of December 1, 2006, by and between Duke Energy Indiana, Inc., an Indiana corporation (" Seller "), and Wabash Valley Power Association, Inc., an Indiana corporation (" Buyer ").  Seller and Buyer may be referred to individually as a " Party ," and collectively as the " Parties ."

RECITALS

WHEREAS, Seller owns the Wabash River Generating Station, consisting of six electric generating units with an aggregate name plate capacity (summer rating) of 928 megawatts (" MW "), together with ancillary properties, equipment and facilities, located near Terre Haute, in Vigo County, Indiana (the " Station "); and

WHEREAS, Buyer desires to purchase and assume, or cause to be purchased and assumed, and Seller desires to sell and assign, or cause to be sold and assigned Unit 1 (as defined below) of the Station, together with certain real property, assets, rights and liabilities ancillary thereto, upon the terms and conditions hereinafter set forth in this Agreement; and

WHEREAS, at the Closing (as defined below), the Parties intend to enter into the Operation and Maintenance Agreement, the Facilities Operation and Services Agreement and certain other agreements related to Unit 1.

NOW, THEREFORE, in consideration of the mutual covenants, representations, warranties and agreements hereinafter set forth, and intending to be legally bound hereby, the Parties agree as follows:

ARTICLE I

DEFINITIONS

Definitions.   As used in this Agreement, the following terms have the meanings specified in this Section 1.1 .

(1)             " Acquired Real Property " means, collectively, the Unit 1 Real Property, the Stormwater Pond Real Property and the Gasification Real Property.

(2)             " ADR " has the meaning set forth in Section 10.13(a) .

(3)             " Affiliate " has the meaning set forth in Rule 12b-2 of the General Rules and Regulations under the Exchange Act.

(4)             " Agreement " has the meaning set forth in the Preamble.

(5)             " Amended Site Lease " means that certain Site Lease, dated August 23, 1993, between Seller and Destec Energy, Inc., as amended, supplemented, assigned, assumed and otherwise modified prior to the date hereof.

(6)             " Applicable Remedial Action Standard " means the most cost effective remediation standard in effect at the time of the Remediation allowed by applicable Environmental Law (considering initial capital costs, the present discounted value of anticipated future monitoring, operation and maintenance costs, and the cost and time of any required studies, risk assessments or other actions required to obtain approval of any particular remediation standard) and based, to the extent allowed by applicable Environmental Law, on either (i) remediation standards published by applicable Governmental Authorities based upon the use of the Acquired Real Property as of the Closing Date or (ii) site-specific remediation standards based upon the assessment of risks to human health and the environment, based upon the use of the Acquired Real Property as of the Closing Date.

(7)             " Assignment and Assumption Agreement " means the Assignment and Assumption Agreement between Seller and Buyer, substantially in the form of Exhibit A , to be delivered at the Closing, pursuant to which Seller shall assign the Seller’s Agreements and other Purchased Assets to Buyer as required in this Agreement and whereby Buyer shall assume the Seller’s Agreements and the other Assumed Liabilities.

(8)             " Assumed Liabilities " has the meaning set forth in Section 2.3 .

(9)             " Base Purchase Price " has the meaning set forth in Section 3.2 .

(10)           " Bill of Sale " means the Bill of Sale, substantially in the form of Exhibit B , to be delivered at the Closing, with respect to the Tangible Personal Property to be transferred to Buyer.

(11)           " Business Day " shall mean any day other than Saturday, Sunday and any day which is a day on which banking institutions in the

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State of Indiana are authorized or required by law or other governmental action to close.

(12)           " Buyer " has the meaning set forth in the Preamble.

(13)           " Buyer Material Adverse Effect " has the meaning set forth in Section 5.3(a) .

(14)           " Buyer’s Indemnitee " has the meaning set forth in Section 8.1(b) .

(15)           " Buyer-Related Party " means any of Buyer, any Affiliate of Buyer, Wabash River Energy Limited, any Affiliate of Wabash River Energy Limited and/or any predecessor entity of any of the foregoing.  The parties agree that as of the date hereof SGS is an Affiliate of Buyer.

(16)           " Buyer’s Required Regulatory Approvals " has the meaning set forth in Section 5.3(b) .

(17)           " Buyer’s Required Third Party Consents " has the meaning set forth in Section 5.3(a) .

(18)           " CERCLA " means the Federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended.

(19)           " CF " has the meaning set forth in Section 2.2(p) .

(20)           " Closing " has the meaning set forth in Section 3.1 .

(21)           " Closing Credit " means the aggregate amount of funds, if any, provided by Buyer or any Affiliate thereof to, and actually received by, Seller prior to Closing, in each case upon the request of Seller, specifically for the purpose of defraying the cost of the HRSG Overhaul (it being understood that Buyer shall be responsible for paying or reimbursing Seller for 100% of the actual documented cost of the HRSG Overhaul) and payments by Buyer to Seller under a certain Agreement between Buyer and Seller, dated August 28, 2006, with respect to steam turbine repair prior to Closing (the "Steam Turbine Repair").  Prior to the date hereof, Buyer has paid Seller $4,932,772.73 for the cost of the HRSG Overhaul and it is anticipated that between the date hereof and Closing Buyer will pay an additional $67,227.27 towards the HRSG Overhaul and Buyer has paid Seller zero dollars for the cost of the Steam Turbine Repair and it is anticipated that between the

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date hereof and Closing Buyer will pay an additional $4,500,000.00 towards the Steam Turbine Repair.

(22)           " Closing Date " has the meaning set forth in Section 3.1 .

(23)           " COBRA " means Section 601-608 of ERISA, Section 4980B(f) of the Code, and any similar applicable state or other local insurance continuation law.

(24)           " Code " means the Internal Revenue Code of 1986, as amended.

(25)           " Combustion Turbine " means that certain syngas/natural gas combustion turbine located at the Station (General Electric Model 7FA Serial No. 296281) that also includes the HRSG, which can create steam for the Steam Turbine, the Evaporative Boiler, the Auxiliary Boiler and the Water Treatment Systems.

(26)           " Commercially Reasonable Efforts " means efforts that are reasonably within the contemplation of the Parties at the time of executing this Agreement and that do not require the performing Party to expend any funds other than expenditures that are customary and reasonable in transactions of the kind and nature contemplated by this Agreement in order for the performing Party to satisfy its obligations hereunder.

(27)           " Confidentiality Agreement " means the Confidentiality Agreement, dated as of December 15, 2004, by and between Seller and Buyer, on behalf of itself and SGS.

(28)           " CPR " has the meaning set forth in Section 10.13(a) .

(29)           " Deed " means a special warranty deed which conveys to Buyer title to the Acquired Real Property and which shall be in substantially the form attached hereto as Exhibit C .

(30)           " Direct Claim " has the meaning set forth in Section 8.2(c) .

(31)           " Emission Allowances " means: (i) NOx Allowance; (ii) SO2 Allowance; or (iii) Mercury Allowance.

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(32)           " Emissions Budget Program " means: (i) NOx Budget Program; (ii) SO2 Budget Program; and (iii) Mercury Budget Program.

(33)           " Encumbrances " means any mortgages, pledges, liens, claims, security interests, agreements, easements, restrictions, defects of title or encumbrances of any kind.

(34)           " Environmental Condition " means the presence or Release to the environment, whether at the Station or at an Off-Site Location, of Hazardous Substances, including any migration of those Hazardous Substances through air, soil or groundwater to or from the Station or any Off-Site Location regardless of when such presence or Release occurred or is discovered.

(35)           " Environmental Laws " means all federal, state,  local and foreign laws, regulations, rules, ordinances, codes, decrees, judgments, directives, or judicial or administrative orders relating to pollution or protection of the environment, natural resources or human health and safety, including laws relating to Releases or threatened Releases of Hazardous Substances (including Releases to ambient air, surface water, groundwater, land, surface and subsurface strata) or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, Release, transport or handling of Hazardous Substances. "Environmental Laws" include CERCLA (42 U.S.C. 9601 et seq.), the Hazardous Materials Transportation Act (49 U.S.C. 1801 et seq.), the Resource Conservation and Recovery Act (42 U.S.C. 6901 et seq.), the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.), the Clean Air Act (42 U.S.C. 7401 et seq.), the Toxic Substances Control Act (15 U.S.C. 2601 et seq.), the Oil Pollution Act (33 U.S.C. 2701 et seq.), the Emergency Planning and Community Right-to-Know Act (42 U.S.C. 11001 et seq.), the Occupational Safety and Health Act (29 U.S.C. 651 et seq.) and all other federal, state, local or foreign laws analogous to any of the above.

(36)           " ERISA " means the Employee Retirement Income Security Act of 1974, as amended.

(37)           " ERISA Affiliate " has the meaning set forth in Section 2.5(g) .

(38)           " ERISA Affiliate Plans " has the meaning set forth in Section 2.5(g) .

(39)           " Estimated Closing NBV " has the meaning set forth in Section 3.2 .

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(40)           " Estimated Closing Statement " has the meaning set forth in Section 3.3(a) .

(41)           " Evaporative Boiler " means a rated 550,000 lb per hour, natural gas fired steam boiler utilized primarily to supply saturated steam to the HRSG in the absence of the steam provided from the E-150 from the gasification island when Unit 1 is operating on syngas fuel.

(42)           " Excluded Assets " has the meaning set forth in Section 2.2 .

(43)           " Excluded Liabilities " has the meaning set forth in Section 2.4 .

(44)           " Existing Surveys " has the meaning set forth in Section 7.1(k) .

(45)           " Facilities Operation and Services Agreement " means the Facilities Operation and Services Agreement between Seller and Buyer, substantially in the form of Exhibit D to be delivered at the Closing.

(46)           " FERC " means the Federal Energy Regulatory Commission, or any successor agency thereto.

(47)           " Final Closing NBV " has the meaning set forth in Section 3.3(b) .

(48)           " FIRPTA Affidavit " means the Foreign Investment in Real Property Tax Act Certification and Affidavit, substantially in the form of Exhibit E .

(49)           " GAAP " means United States generally accepted accounting principles as in effect from time to time, applied on a consistent basis.

(50)           " Gasification Facility " means the improvements, fixtures and all related equipment (including interconnections with the power block) used in the production of synthetic fuel and located on the Gasification Real Property.

(51)           " Gasification Real Property " means the real property described in Schedule 1.1(51) consisting in part of that certain real property currently leased by Seller to SGS pursuant to the Amended Site Lease.

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(52)           " Good Utility Practices " mean any of the practices, methods and acts engaged in or approved by a significant portion of the electric utility industry during the relevant time period, or any of the practices, methods or acts that, in the exercise of reasonable judgment in light of the facts known at the time the decision was made, could have been expected to accomplish the desired result at a reasonable cost consistent with good business practices, reliability, safety and expedition.  Good Utility Practices are not intended to be limited to the optimum practices, methods or acts to the exclusion of all others, but rather to be practices, methods or acts generally accepted in the MISO region.

(53)           " Governmental Authority " means any federal, state, local or other governmental, regulatory or administrative agency, commission, department, board or other governmental subdivision, court, tribunal, arbitrating body or other governmental authority.

(54)           " Hazardous Substances " means (a) any petrochemical or petroleum products, oil or coal ash, radioactive materials, radon gas, asbestos in any form that is or could become friable, urea formaldehyde foam insulation and transformers or other equipment that contain dielectric fluid which may contain levels of polychlorinated biphenyls; (b) any chemicals, materials or substances defined as or included in the definition of "hazardous substances," "hazardous wastes," "hazardous materials," "hazardous constituents," "restricted hazardous materials," "extremely hazardous substances," "toxic substances," "contaminants," "pollutants," "toxic pollutants" or words of similar meaning and regulatory effect under any applicable Environmental Law; and (c) any other chemical, material or substance, exposure to which is prohibited, limited or regulated by any applicable Environmental Law.

(55)           " HRSG " means the heat recovery steam generator associated with Unit 1.

(56)           " HRSG Overhaul " means the major maintenance planned for the HRSG and referenced in Section 5.2 of that certain Settlement Agreement by and between Seller and Buyer, dated December 31, 2005.

(57)           " HSR Act " means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended.

(58)           " Income Tax " means any federal, state, local or foreign Tax  based upon, measured by or calculated with respect to (a) net income, profits or receipts (including gross receipts Taxes, capital gains Taxes and minimum Taxes) or (b) multiple bases (including corporate franchise taxes) if one or more of the bases on which such Tax may be based, measured by or calculated with respect

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to, is described in clause (a), in each case together with any interest, penalties or additions to such Tax.

(59)           " Indemnifiable Loss " has the meaning set forth in Section 8.1(a) .

(60)           " Indemnifying Party " has the meaning set forth in Section 8.1(e) .

(61)           " Indemnitee " has the meaning set forth in Section 8.1(c) .

(62)           " Independent Accounting Firm " means a nationally recognized certified public accounting firm chosen jointly by Seller and Buyer.

(63)           " Intellectual Property " means patents and patent rights, trademarks and trademark rights, trade names and trade name rights, service marks and service mark rights, service names and service name rights, brand names, inventions, copyrights and copyright rights, computer programs and pending applications for and registrations of patents, trademarks, service marks and copyrights.

(64)           " IURC " means the Indiana Utility Regulatory Commission and any successor agency thereto.

(65)           " Knowledge " when used in a particular representation herein with respect to Seller, means the knowledge of the individuals listed on Schedule 1.1(65) , with reasonable inquiry.

(66)           " Laws " means all laws, statutes (including Environmental Laws), rules, Permits, regulations, ordinances and other pronouncements having the effect of law of the United States and any domestic state, county, city or other political subdivision or of any Governmental Authority.

(67)           " Liability " or " Liabilities " means any liability or obligation (whether known or unknown, whether asserted or unasserted, whether absolute or contingent, whether accrued or unaccrued, whether liquidated or unliquidated, whether incurred or consequential, and whether due or to become due).

(68)           " Material Adverse Effect " means any change in or effect on the condition of the Purchased Assets and the Gasification Real Property, individually or in the aggregate, that materially impairs the value of the Purchased Assets and the Gasification Real Property taken as a whole; provided that the

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following shall not be considered when determining whether a Material Adverse Effect has occurred: any effect resulting from (i) any change resulting from changes in the national, regional or local wholesale or retail markets for electricity, including any change in the structure, operating agreements, operations or procedures of the Midwest System Operator, Inc. or any other regional transmission organization or control area, (ii) any change resulting from changes in the national, regional or local markets for any fuel or supplies used at Unit 1, (iii) any change resulting from changes in the North American, national, regional or local electricity transmission systems, (iv) changes in Law, (v) any materially adverse change in the Purchased Assets and the Gasification Real Property which is substantially cured (including by payment of money) before the earlier of the Closing Date and the Termination Date, (vi) any change in economic conditions generally or in the industry in which Seller operates, (vii) any actions to be taken pursuant to or in accordance with this Agreement, (viii) with respect to the Gasification Real Property, any action or inaction of Buyer or any Buyer-Related Party, or (ix) any order of any court or Governmental Authority applicable to providers of generation, transmission or distribution of electricity generally that imposes restrictions, regulations or other requirements thereon, including any order with respect to an independent system operator or retail access in Indiana.

(69)           " Material Contracts " has the meaning set forth in Section 4.8(a) .

(70)           " Memorandum of Amended Site Lease " means any memorandum of the Amended Site Lease or any assignment thereof that is recorded in the applicable land records.

(71)           " Memorandum of Facilities Operation and Services Agreement " means the Memorandum of Facilities Operation and Services Agreement between Seller and Buyer, in recordable form and otherwise substantially in the form of Exhibit F , to be delivered at the Closing.

(72)           " Mercury Allowance " means an allowance or authorization used to comply with a Mercury Budget Program, including, but not limited to: (i) a Hg allowance as that term is defined in 40 CFR 60.4102; (ii) a mercury allowance or authorization (or similar term) as set forth in regulations and/or statutes that may be promulgated by the State of Indiana or the Indiana Department of Environmental Management or the Indiana Air Pollution Control Board after the date hereof to implement the Clean Air Mercury Rule published in the Federal Register on May 18, 2005; and (iii) a mercury allowance or authorization (or similar term) promulgated pursuant to any future federal or state statute or regulation that amends or supersedes any of the foregoing.

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(73)           " Mercury Budget Program " means a statutory or regulatory program, promulgated by the United States or a state pursuant to which the United States or state provides for a limit on the mercury that can be emitted by all sources covered by the program and establishes tradeable allowances or authorizations as the means for ensuring compliance with the limit.

(74)           " Net Book Value " means the net value (original cost less accumulated depreciation) on the books of Seller, determined in accordance with GAAP applied consistently with the Seller’s past and current accounting practices, of a specified asset as of the date of determination.

(75)           " Neutral " has the meaning set forth in Section 10.13(a) .

(76)           " NOx " means oxides of nitrogen.

(77)           " NOx Allowance " means an allowance or authorization used to comply with a NOx Budget Program, including, but not limited to: (i) a NOx Allowance as that term is defined in 326 Indiana Administrative Code § 10-4-2 as of the date hereof; (ii) a CAIR NOx allowance, as that term is defined in 40 CFR 96.102; (iii) a CAIR NOx Ozone Season allowance, as that term is defined in 40 CFR 96.302; (iv) a NOx  allowance or authorization (or similar term) as set forth in regulations and/or statutes that may be promulgated by the State of Indiana or the Indiana Department of Environmental Management or the Indiana Air Pollution Control Board after the date hereof to implement the Federal Clean Air Interstate Rule published in the Federal Register on May 12, 2005; and (v) a NOx allowance or authorization (or similar term) promulgated pursuant to any future federal or state statute or regulation that amends or supersedes any of the foregoing.

(78)           " NOx Budget Program " means a statutory or regulatory program promulgated by the United States or a state pursuant to which the United States or state provides for a limit on the NOx that can be emitted by all sources covered by the program and establishes tradeable allowances or authorizations as the means for ensuring compliance with the limit.

(79)           " Off-Site Location " means any real property other than the real property underlying the Station and the Purchased Assets.  For the avoidance of doubt, the term "Off-Site Location" does not include the Acquired Real Property.

(80)           " Operation and Maintenance Agreement " means the Operation and Maintenance Agreement between Seller and Buyer, substantially in the form of Exhibit G , to be delivered at the Closing.

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(81)           " OUCC " means the Indiana Office of Utility Consumer Counselor

(82)           " Party " or " Parties " has the meaning set forth in the Preamble.

(83)           " Permits " means permits, certificates, licenses and governmental authorizations.

(84)           " Permitted Encumbrances " means: (i) those Encumbrances set forth in Schedule 1.1(84) ; (ii) statutory liens for Taxes or other governmental charges or assessments not yet delinquent (or that may subsequently be paid without penalty) or which is being contested in good faith in appropriate proceedings; (iii) mechanics’, carriers’, workers’, repairers’ and other similar liens arising or incurred in the ordinary course of business that do not, individually or in the aggregate, create a Material Adverse Effect; (iv) zoning, entitlement, conservation, and other land use and environmental restrictions and regulations by Governmental Authorities; (v) such other Encumbrances which do not, individually or in the aggregate, create a Material Adverse Effect; (vi) the terms of the Seller’s Agreements and liens of the other parties to such Seller’s Agreements arising thereunder for sums not yet due and payable that do not, individually or in the aggregate, create a Material Adverse Effect; (vii) Encumbrances related to Assumed Liabilities or created by this Agreement and each other agreement, document, instrument and certificate to be executed in connection with the transactions contemplated hereby; (viii) Encumbrances registered under the Uniform Commercial Code as adopted in the state of Indiana by any lessor or licensor of Tangible Personal Property to Seller; (ix) the rights, if any, of third party suppliers or vendors in the Purchased Assets that do not, individually or in the aggregate, create a Material Adverse Effect; (x) Encumbrances arising in the ordinary course of business after the date hereof; (xi) Encumbrances arising or resulting from any act or omission of Buyer or any Buyer—Related Party; and (xii) the Amended Site Lease and any Encumbrances arising thereunder or as a result thereof.

(85)           " Person " means any individual, partnership, limited liability company, joint venture, corporation, trust, unincorporated organization or any other business entity or governmental entity or any department or agency thereof.

(86)           " Post-Closing Adjustment " has the meaning set forth in Section 3.3(b) .

(87)           " Post-Closing Statement " has the meaning set forth in Section 3.3(b) .

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(88)           " Proposed Post-Closing Adjustment " has the meaning set forth in Section 3.3(b) .

(89)           " Purchased Assets " has the meaning set forth in Section 2.1(a) .

(90)           " Purchase Price " has the meaning set forth in Section 3.3(b) .

(91)           " Related Agreements " means the Syngas Tolling Agreement, the Memorandum of Amended Site Lease and the Amended Site Lease.

(92)           " Release " means any release, spill, leak, discharge, disposal of, pumping, pouring, emitting, emptying, injecting, leaching, dumping or allowing to escape into or through the environment.

(93)           " Remediation " means actions to address an Environmental Condition, including: (a) monitoring, investigation, assessment, treatment, cleanup, containment, removal, mitigation, response or restoration work; (b) obtaining any permits, consents, approvals or authorizations of any Governmental Authority necessary to conduct any such activity; (c) preparing and implementing any plans or studies for any such activity; (d) obtaining a written notice from a Governmental Authority with jurisdiction over the Unit 1 Real Property, Unit 1 or an Off-Site Location under Environmental Laws that no material additional work is required by such Governmental Authority; (e) the use, implementation, application, installation, operation or maintenance of removal actions on the Unit 1 Real Property, Unit 1 or an Off-Site Location, remedial technologies applied to the surface or subsurface soils, excavation and treatment or disposal of soils at an Off-Site Location, systems for long-term treatment of surface water or ground water, engineering controls or institutional controls; and (f) any other activities reasonably determined by a Party to be necessary or appropriate or required under Environmental Laws to address the presence or Release of Hazardous Substances at the Unit 1 Real Property, Unit 1 or an Off-Site Location.

(94)           " Representatives " of a Party means the Party and its Affiliates and their respective directors, officers, employees, agents, partners, advisors (including accountants, legal counsel, environmental consultants, engineering consultants, financial advisors and other authorized representatives) and parents and other controlling Persons.

(95)           " SEC " means the Securities and Exchange Commission, and any successor agency thereto.

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(96)           " SGS " means SG Solutions, LLC, an Indiana limited liability company, and any successor thereto.

(97)           " Seller " has the meaning set forth in the Preamble.

(98)           " Seller’s Agreements " means those contracts, agreements, licenses (other than Permits or Intellectual Property), leases, or other legally binding arrangements that solely relate to the ownership, operation and maintenance of the Purchased Assets, as set forth in Schedule 1.1(98) .

(99)           " Seller’s Indemnitee " has the meaning set forth in Section 8.1(a) .

(100)         " Seller Marks " has the meaning set forth in Section 6.13(a) .

(101)         " Seller’s Required Regulatory Approvals " has the meaning set forth in Section 4.3(b) .

(102)         " Seller’s Required Third Party Consents " has the meaning set forth in Section 4.3(a) .

(103)         " SO2 " means sulfur dioxide.

(104)         " SO2 Allowance " means an allowance or authorization used to comply with a SO2 Budget Program, including, but not limited to: (i) an Allowance as that term is defined in 40 CFR § 72.2; (ii) a CAIR SO2 Allowance, as that term is defined in 40 CFR 96.202; (iii) a SO2 allowance or authorization (or similar term) as set forth in regulations and/or statutes that may be promulgated by the State of Indiana or the Indiana Department of Environmental Management or the Indiana Air Pollution Control Board after the date hereof to implement the Federal Clean Air Interstate Rule published in the Federal Register on May 12, 2005; and (iv) a SO2 allowance or authorization (or similar term) promulgated pursuant to any future federal or state statute or regulation that amends or supersedes any of the foregoing.

(105)         " SO2 Budget Program " means a statutory or regulatory program, promulgated by the United States or a state pursuant to which the United States or state provides for a limit on the SO2 that can be emitted by all sources covered by the program and establishes tradeable allowances or authorizations as the means for ensuring compliance with the limit.

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(106)         " S&P " means Standard & Poor’s, a division of The McGraw-Hill Companies, Inc.

(107)         " Station " has the meaning set forth in the Recitals.

(108)         " Station Permits " means those Permits that are required pursuant to Environmental Laws and related to emissions or effluents from Unit 1 and one or more of the other units at the Station, but specifically excluding the Unit 1 Permits.  A complete list of the Station Permits is set forth on Schedule 1.1(108) .

(109)         " Steam Turbine " means that certain Westinghouse steam turbine (Model 10-A-1404-2, Serial No. 1-S-42P633) located at the Station.

(110)         " Stormwater Pond Real Property "  means the real property described in Schedule 1.1(110) upon which the stormwater detention pond is located.

(111)         " Syngas Tolling Agreement " means the Syngas Tolling Agreement, effective as of April 1, 2005, between Buyer and Seller.

(112)         " Tangible Personal Property " has the meaning set forth in Section 2.1(a) .

(113)         " Taxes " means all taxes, charges, fees, levies, penalties or other assessments imposed by any federal, state, local or foreign taxing authority, including, but not limited to, income, gross receipts, excise, property, sales, transfer, use, franchise or other taxes, including any interest, penalties or additions attributable thereto.

(114)         " Tax Return " means any return, report, information return or other document and any amendments thereto (including any related or supporting information) required to be supplied to any taxing authority with respect to Taxes.

(115)         " Termination Date " has the meaning set forth in Section 9.1(b) .

(116)         " Termination Fee " has the meaning set forth in Section 9.2(c) .

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(117)         " Third Party Claim " has the meaning set forth in Section 8.2(a) .

(118)         " Title Company " has the meaning set forth in Section 7.1(k) .

(119)         " Title Policy " has the meaning set forth in Section 7.1(k) .

(120)         " Transaction Agreements " means the Assignment and Assumption Agreement, the Bill of Sale, the Operation and Maintenance Agreement, the Facilities Operation and Services Agreement, the Memorandum of Facilities Operation and Services Agreement, an Authorized Representation Agreement, as described in Section 6.15(d) , and the Deed.

(121)         " Transfer Taxes " means any and all transfer Taxes (excluding Taxes measured in whole or in part by net income), including sales, use, excise, stock, stamp, documentary, filing, recording, permit, license, authorization and similar Taxes, fees, duties, levies, customs, tariffs, imposts, assessments, obligations and charges.

(122)         " Unit 1 " means, collectively, together with any ancillary equipment and facilities (i) the Steam Turbine and (ii) the Combustion Turbine.

(123)         " Unit 1 Improvements " means the buildings, fixtures and other improvements located on the Unit 1 Real Property and listed in Schedule 1.1(123) .  For the avoidance of doubt, the Unit 1 Improvements are separate and distinct from the Tangible Personal Property.

(124)         " Unit 1 Permits " means those Permits that pertain solely to the ownership, use and operation of Unit 1.  A complete list of the Unit 1 Permits is set forth on Schedule 1.1(124) .

(125)         " Unit 1 Real Property " means the real property described in Schedule 1.1(125) upon which the Combustion Turbine is sited, together with, to the extent of Seller’s right, title and interest therein, the Unit 1 Improvements.

(126)         " Water Treatment Systems " means those facilities and equipment associated with supplying boiler feedwater to, and condensate from the Combustion Turbine and Steam Turbine, including but not

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limited to pumps, piping, tanks, deaerators, polishers, filters, demineralizers and chemical feed systems.

1.2           Construction .  All article, section, subsection, schedule and exhibit references used in this Agreement are to articles, sections, subsections, schedules and exhibits to this Agreement unless otherwise specified.  The exhibits and schedules attached to this Agreement constitute a part of this Agreement and are incorporated herein for all purposes.

(a)           If a term is defined as one part of speech (such as a noun), it shall have a corresponding meaning when used as another part of speech (such as a verb).  Unless the context of this Agreement clearly requires otherwise, the singular shall include the plural and the plural shall include the singular wherever and as often as may be appropriate, and words importing the masculine gender shall include the feminine and neutral genders and vice versa.  A reference to any party hereto shall include a reference to such party’s permitted successors and assigns.  The words "includes" or "including" shall mean "including without limitation", the words "hereof", "hereby", "herein", "hereunder" and similar terms in this Agreement shall refer to this Agreement as a whole and not any particular section or article in which such words appear, and any reference to a Law shall include any amendment thereof or any successor thereto and any rules and regulations promulgated thereunder.  Currency amounts referenced herein, unless otherwise specified, are in U.S. Dollars.

(b)           Time is of the essence in this Agreement.  Whenever this Agreement refers to a number of days, such number shall refer to calendar days unless Business Days are specified. Whenever any action must be taken hereunder on or by a day that is not a Business Day, then such action may be validly taken on or by the next day that is a Business Day.

(c)           All accounting terms used herein and not expressly defined herein shall have the meanings given to them under GAAP.

(d)           Each Party acknowledges that it and its attorneys have been given an equal opportunity to negotiate the terms and conditions of this Agreement and that any rule of construction to the effect that ambiguities are to be resolved against the drafting Party or any similar rule operating against the drafter of an agreement shall not be applicable to the construction or interpretation of this Agreement.

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ARTICLE II
PURCHASE AND SALE

2.1           Purchased Assets and the Gasification Real Property .

(a)           Purchased Assets .  Upon the terms and subject to the satisfaction of the conditions set forth in this Agreement, at the Closing, Seller shall sell, assign, convey, transfer and deliver to Buyer, and Buyer shall purchase, assume and acquire from Seller, free and clear of all Encumbrances (except for Permitted Encumbrances), all of Seller’s right, title and interest in and to the following assets, each as in existence on the Closing Date (collectively, the "Purchased Assets"):

(i)            Unit 1;

(ii)           The Unit 1 Real Property and the Stormwater Pond Real Property;

(iii)          The machinery, equipment, vehicles, furniture and other personal property not otherwise constituting Unit 1, including all spare parts and the generation step-up transformers set forth on Schedule 2.1(a)(iii) , located on the Unit 1 Real Property on the Closing Date, together with all the other tangible personal property of Seller used solely in the operation of Unit 1, including without limitation, certain coal/petcoke conveyance equipment, and listed in Schedule 2.1(a)(iii) , other than, in either case, property constituting part of the Excluded Assets (collectively, " Tangible Personal Property ");

(iv)          The Seller’s Agreements, subject to the receipt of necessary consents and approvals;

(v)           The Unit 1 Permits, subject to the receipt of necessary consents and approvals;

(vi)          The right to operate under the Station Permits until Buyer obtains its own Permits to replace the applicable Station Permits in accordance with and as set forth in the Facilities Operation and Services Agreement and the Operation and Maintenance Agreement;

(vii)         Those Emission Allowances related to NOx and Mercury that will belong to Buyer, pursuant to Section 3.8 ;

(viii)        All unexpired, transferable warranties and guarantees from third parties with respect to any item of Tangible Personal Property;

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(ix)           The interests of Seller in and to the name "Wabash River Repowering Combined Cycle Plant" or "Wabash River Coal Gasification Repowering Project."  Buyer expressly understands that, except as just provided, Seller is not assigning or transferring to Buyer any right, title or interest in or to the names "Wabash River Station", or any derivation or variation thereof, as well as any related or similar name, or any other trade names, trademarks, service marks, corporate names and logos or any part, derivation, colorable imitation or combination thereof;

(x)            All books, expired purchase orders, operating records, operating, safety and maintenance manuals, engineering design plans, blueprints and as built plans, specifications, procedures, studies, reports, equipment repair, safety, maintenance or service records, and similar items, to the extent maintained and reasonably accessible by Seller and related specifically to the Purchased Assets (subject to the right of Seller to retain copies of same for its use) other than such items that are proprietary to third parties or which constitute records of accounting or financial performance of Seller;

(xi)           The Intellectual Property listed in Schedule 2.1(a)(xi) , subject to the receipt of necessary consents and approvals;

(xii)          Any financial transmission rights applicable to Unit 1 and any rights to interconnect and deliver the output of Unit 1 to MISO; and

(xiii)         Buyer’s rights in all easements and licenses as described and depicted in the Facilities Operation and Services Agreement and transfer documents associated therewith.

(b)           Gasification Real Property .  In connection with the termination of the Related Agreements and, as provided in Section 3.2 below, for no additional monetary consideration, Seller shall convey, transfer and deliver to Buyer, and Buyer shall acquire from Seller, all of Seller’s right, title and interest in and to the Gasification Real Property.

2.2           Excluded Assets .   Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall constitute or be construed as conferring on Buyer, and Buyer is not acquiring, any right, title or interest of Seller or its Affiliates in or to the following assets whether or not associated with the Purchased Assets or the Gasification Real Property, and which are hereby excluded from the sale and from the definition of Purchased Assets and the Gasification Real Property herein (the " Excluded Assets "):

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(a)           Certificates of deposit, shares of stock, securities, bonds, debentures, evidences of indebtedness and interests in joint ventures, partnerships, limited liability companies and other entities;

(b)           All cash, cash equivalents, bank deposits, accounts and notes receivable (trade or otherwise), prepaid expenses relating to the ownership and operation of the Purchased Assets and the ownership of the Gasification Real Property and any income, sales, payroll or other receivables with respect to Taxes;

(c)           The right, title and interest of Seller and its successors, assigns, Affiliates and/or Representatives in and to the names "Wabash River Station" or any derivation or variation thereof, as well as any related or similar name, or any other trade names, trademarks, service marks, corporate names and logos, or any part, derivation, colorable imitation or combination thereof, other than as specified in Section 2.1(a)(viii) ;

(d)           Except to the extent, if any, constituting a Seller’s Agreement, all tariffs, agreements and arrangements to which Seller or any Affiliate thereof is a party for the purchase or sale of electric capacity and/or energy or for the purchase or sale of ancillary services involving the Purchased Assets or otherwise;

(e)           Except in respect of Assumed Liabilities, the rights of Seller or any Affiliate thereof in and to any causes of action against third parties relating to any Acquired Real Property, Tangible Personal Property, Unit 1 Permits, Station Permits, Taxes or Seller’s Agreements, if any, including any claims for refunds (other than those Tax refunds that are covered by Section 2.2(f)) , prepayments, offsets, recoupment, insurance proceeds, condemnation awards, judgments and the like, whether received as payment or credit against future liabilities, relating specifically to Unit 1 or the Acquired Real Property and relating to any period prior to the Closing Date;

(f)            Any refunds of Taxes attributable to the Purchased Assets and the Gasification Real Property, which refunds are the result of proceedings that, prior to the Closing Date, were instituted by Seller or its Affiliates regardless of when actually paid;

(g)           All employees of Seller and all personnel records other than records the disclosure of which to Buyer is required by Law;

(h)           The minute books, stock transfer books, corporate seal and other corporate records of Seller;

(i)            Any amount received after the Closing Date for electricity generated by Unit 1 that was sold or delivered prior to the Closing Date;

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(j)            All insurance policies relating to the Purchased Assets and the Gasification Real Property;

(k)           Any and all of Seller’s rights in any contract or arrangement that is not a Seller’s Agreement or that represents an intercompany transaction between Seller and an Affiliate of Seller, whether or not such transaction relates to the provision of goods and services, payment arrangements, intercompany charges or balances, or the like;

(l)            Seller’s rights under this Agreement, the Related Agreements and the Transaction Agreements;

(m)          All rights to the services of employees of Seller and all rights under and with respect to any ERISA Affiliate Plans;

(n)           All of Seller’s electric generating units at the Station other than Unit 1 and the other properties, assets and rights set forth on Schedule 2.2(n) ;

(o)           All electrical transmission facilities of Seller or any of its Affiliates located at the Station (whether or not regarded as a "transmission" asset for regulatory or accounting purposes), including all switchyard facilities, substation facilities and support equipment (and related permits, contracts and warranties), but excluding, for the avoidance of doubt, those generation step-up transformers set forth on Schedule 2.1(a)(iii) ;

(p)           All assets, equipment and tangible or intangible personalty and rights that are not Purchased Assets, that are owned, operated or used by Seller or its Affiliates at the Station but not solely for or in connection with Unit 1, including without limitation those assets, equipment and tangible or intangible personalty and rights that are used in connection with the operation or support of any two or more of Seller’s electric generating units at the Station, whether or not including Unit 1 (such assets and properties, the " CF " including those items described in Schedule 2.2(p) ).  For the avoidance of doubt, Seller is not transferring or otherwise conveying to Buyer hereunder, as part of the Purchased Assets or otherwise, any interest in the CF; it being understood that, subject to the terms and conditions thereof, Seller shall make available to Buyer under the Facilities Operation and Services Agreement a right to use the CF commensurate with the Purchased Assets;

(q)           Any and all rights in, under or to any real property other than the Acquired Real Property;

(r)            The Station Permits, the Parties acknowledging and understanding that Buyer’s rights and obligations with respect to the Station Permits shall

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be in accordance with and as set forth in the Facilities Operation and Services Agreement and the Operation and Maintenance Agreement; and

(s)           Any Emissions Allowances other than those that will belong to Buyer, as described in Section 3.8 .

2.3           Assumed Liabilities .  On the Closing Date, Buyer shall deliver to Seller the Assignment and Assumption Agreement pursuant to which Buyer shall assume and agree to pay, perform and discharge, without recourse to Seller or its Affiliates, all of the Liabilities of Seller and its Affiliates that relate to the Purchased Assets and the Gasification Real Property including those Liabilities described below, and other than Excluded Liabilities, in accordance with the respective terms and subject to the respective conditions thereof (collectively, " Assumed Liabilities "):

(a)           All Liabilities of Seller and its Affiliates under the Seller’s Agreements, the Intellectual Property agreements identified in Schedule 2.1(a)(xi) and the Unit 1 Permits in accordance with the terms thereof, except, in each case, to the extent that such Liabilities, but for a breach or default by Seller or its Affiliates, would have been paid, performed or otherwise discharged prior to the Closing Date;

(b)           All Liabilities in respect of Taxes attributable to the Purchased Assets or the Gasification Real Property for taxable periods, or portions thereof, beginning on and after the Closing Date;

(c)           Any Liabilities relating to or resulting from any of the following: (i) any violation or alleged violation of, or noncompliance with, Environmental Laws with respect to the ownership or operation of any of the Purchased Assets or the Gasification Real Property on or after the Closing Date, including any fines or penalties or the costs associated with correcting such violations or non-compliance; (ii) Environmental Conditions or exposure to Hazardous Substances Released at, on, in, under, or migrating or discharged from the Purchased Assets on or after the Closing Date, including loss of life, injury to persons or property (including from exposure to asbestos-containing materials), damage to natural resources, and Remediation of Environmental Conditions; (iii) the transportation, storage, disposal, treatment, or recycling of Hazardous Substances generated by and transported by or on behalf of Buyer or any of its Affiliates in connection with the operation of the Purchased Assets or the Gasification Real Property on or after the Closing Date to an Off-Site Location, including claims related to loss of life, injury to persons or property, natural resource damages or Remediation of Environmental Conditions; and (iv) Environmental Conditions or exposure to Hazardous Substances Released at, on, under or migrating or discharged from the Gasification Real Property on or after January 14, 2005, including loss of life, injury to persons or property (including from exposure to asbestos-containing materials), damage to natural resources and Remediation of Environmental Conditions;

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(d)           All Liabilities of Seller with respect to the Purchased Assets,  the Gasification Real Property under the agreements or consent orders set forth on Schedule 4.5(c) arising on or after the Closing Date;

(e)           All Liabilities arising under or relating to the Permitted Encumbrances arising on or after the Closing Date;

(f)            All Liabilities allocated to Buyer in this Agreement or in any Transaction Agreements;

(g)           Any Liabilities for which Buyer has indemnified Seller pursuant to Article VIII ;

(h)           All Liabilities arising out of the use, ownership, maintenance or operation of the Purchased Assets or the Gasification Real Property on or after the Closing Date; and

(i)            All Liabilities to third parties related to the use of syngas in Unit 1 on or after April 1, 2005 in accordance with the terms of the Syngas Tolling Agreement.

2.4           Excluded Liabilities .  Except for the Assumed Liabilities, Buyer shall not assume by virtue of this Agreement or the transactions contemplated hereby, and shall have no liability for, any of the following Liabilities (the " Excluded Liabilities "):

(a)           Any Liabilities of Seller or its Affiliates in respect of any Excluded Assets or other assets of Seller or its Affiliates which are not Purchased Assets, except to the extent caused by the acts or omissions of Buyer or its Affiliates or Buyer’s or its Affiliates’ ownership, operation or use of the Purchased Assets or the Gasification Real Property;

(b)           Any Liabilities in respect of Taxes attributable to the ownership and operation of the Purchased Assets and the ownership of the Gasification Real Property (other than as provided in the Amended Site Lease) for taxable periods, or portions thereof, ending before the Closing Date;

(c)           Any Liabilities of Seller or its Affiliates arising from the breach or default by Seller or its Affiliates, prior to the Closing Date, of any Seller’s Agreement, Intellectual Property agreement identified in Schedule 2.1(a)(xi) , or Unit 1 Permit;

(d)           Except as otherwise set forth in Section 2.3(c) or 2.3(i) , any and all Liabilities to third parties for personal injury or tort, or similar causes of action arising out of the ownership or operation of the Purchased Assets prior to the Closing Date;

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(e)           Any fines or penalties imposed by a Governmental Authority resulting from the willful misconduct or gross negligence of Seller or its Affiliates prior to the Closing Date;

(f)            Any Liabilities relating to or resulting from the following: (i) any violation or alleged violation of, or noncompliance with, Environmental Laws, with respect to the ownership or operation of any of the Purchased Assets prior to the Closing Date, including any fines or penalties or the costs associated with correcting such violations or non-compliance; (ii) Environmental Conditions or exposure to Hazardous Substances Released at, on, in, under, or migrating or discharged from the Purchased Assets prior to the Closing Date, including loss of life, injury to persons or property (including from exposure to asbestos-containing materials prior to the Closing Date), damage to natural resources, and Remediation of Environmental Conditions; (iii) the transportation, storage, disposal, treatment, or recycling of Hazardous Substances generated by and transported by or on behalf of Seller or any of its Affiliates in connection with the operation of the Purchased Assets prior to the Closing Date to an Off-Site Location, including claims related to loss of life, injury to persons or property, natural resource damages or Remediation of Environmental Conditions, and (iv) Environmental Conditions or exposure to Hazardous Substances Released at, on, under or migrating or discharged from the Gasification Real Property, commencing on or before January 13, 2005, including loss of life, injury to persons or property (including from exposure to asbestos-containing materials), damage to natural resources and Remediation of Environmental Conditions.

(g)           Any Liabilities relating to any Benefit Plan maintained by Seller or any trade or business (whether or not incorporated) which is or within the six years preceding the date hereof has been under common control, or which is or within the six years preceding the date hereof has been treated as a single employer, with Seller under Section 414(b), (c), (m) or (o) of the Code (" ERISA Affiliate ") or to which Seller and any ERISA Affiliate contributed thereunder (the " ERISA Affiliate Plans "), maintained by, contributed to, or obligated to contribute to, by Seller or any ERISA Affiliate, including any Liability (i) to the Pension Benefit Guaranty Corporation under Title IV of ERISA or (ii) with respect to non-compliance with the notice and benefit continuation requirements of COBRA;

(h)           Any Liabilities relating to the employment or termination of employment, including discrimination, wrongful discharge, unfair labor practices, or constructive termination by Seller of any individual, attributable to any actions or inactions by Seller or any Affiliate thereof other than such actions or inactions taken at the direction of Buyer or its Affiliates; and

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(i)            Any Liability of Seller arising from the making or performance of this Agreement or the Transaction Agreements or the transactions contemplated hereby or thereby.

ARTICLE III

THE CLOSING

3.1           Closing .   The sale, assignment, conveyance, transfer and delivery of the Purchased Assets to Buyer, the transfer and delivery of the Gasification Real Property to Buyer, the payment of the Purchase Price to Seller, and the consummation of the other respective obligations of the Parties contemplated by this Agreement shall take place at a closing (the " Closing "), to be held at the principal office of Seller at 10:00 a.m. local time, or at another mutually acceptable time and location, on the date that is six (6) Business Days following the date on which the last of the conditions to Closing set forth in Article VII (except for conditions which by their nature can only be satisfied at the Closing) have been either satisfied or waived by the Party for whose benefit such conditions precedent exist or on such other date as may be mutually agreed upon by the Parties.  The date of Closing is hereinafter called the " Closing Date ."  For purposes of calculating the Closing Net Book Value only, the Closing shall be deemed effective as of 11:59 p.m. local time on the Closing Date.  For all other purposes, the Closing shall be deemed effective as of 12:01 a.m. local time on the Closing Date .

3.2           Payment of Purchase Price .  Upon the terms and subject to the satisfaction of the conditions contained in this Agreement, in consideration of the aforesaid sale, assignment, conveyance, transfer and delivery of the Purchased Assets, Buyer shall pay or cause to be paid to Seller at the Closing, to the account(s) previously identified by Seller to Buyer, an amount in immediately available funds equal to (a) the estimated Net Book Value of the Purchased Assets as of the Closing (the " Estimated Closing NBV ") minus (b) the Closing Credit (such difference, the " Base Purchase Price ").  Following the Closing, Buyer or Seller, as appropriate, shall pay the other the Post-Closing Adjustment Amount in accordance with Section 3.3(b) .  Schedule 3.2 sets forth the calculation of the Net Book Value as of July 31, 2006, including the methodology for the calculation thereof, which methodology shall be consistently used for calculating the Net Book Value in accordance with this Agreement.  The Parties have agreed that, because Seller acquired the Gasification Real Property for nominal consideration, the Base Purchase Price shall not include any amounts allocable to the Gasification Real Property; provided, however , in the event that, for tax purposes or otherwise, a valuation is required to be assigned to the Gasification Real Property, Seller and Buyer shall reasonably cooperate to agree upon such a valuation.

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3.3           Determination of Purchase Price .

(a)           At least five (5) Business Days prior to the expected Closing Date, Seller shall prepare and deliver to Buyer an estimated closing statement (the " Estimated Closing Statement ") that shall set forth in reasonable detail Seller’s best estimate of the Estimated Closing NBV together with the Closing Credit.

(b)           Within sixty (60) days following the Closing Date, Seller shall prepare and deliver to Buyer a final closing statement (the " Post-Closing Statement ") that shall set forth in reasonable detail (i) Seller’s final calculation of the Net Book Value of the Purchased Assets as of the Closing Date (the " Final Closing NBV ") and of the Closing Credit and (ii) Seller’s calculation of the difference in amount, if any, between the Estimated Closing NBV and the Final Closing NBV (including any difference in amount, if any, between the Closing Credit as calculated in connection with the Estimated Closing NBV and as calculated in connection with the Final Closing NBV) (the " Proposed Post-Closing Adjustment ").  Within thirty (30) days following the delivery of the Post-Closing Statement by Seller to Buyer, Buyer may object to the calculation of the Proposed Post-Closing Adjustment in writing.  Seller shall cooperate with Buyer to provide Buyer and Buyer’s Representatives with information reasonably requested by Buyer used by Seller in connection with preparing the Post-Closing Statement.  If Buyer objects to the Proposed Post-Closing Adjustment, the Parties shall attempt to resolve such dispute by good faith negotiation.  If the Parties are unable to resolve such dispute within thirty (30) days of any objection by Buyer, the Parties shall appoint an Independent Accounting Firm, which shall be instructed to review the Post-Closing Statement and determine the appropriate adjustment to the Base Purchase Price within thirty (30) days thereafter.  Each of Buyer and Seller shall pay 50% of the fees and disbursements of such Independent Accounting Firm.  The finding of such Independent Accounting Firm shall be binding on the Parties.  Upon determination of the appropriate adjustment (the " Post-Closing Adjustment ") by agreement of the Parties or by binding determination of the Independent Accounting Firm, the Party owing the difference shall deliver such difference to the other Party no later than two (2) Business Days after such determination, by wire transfer of  immediately available funds denominated in U.S. dollars or in any other manner as reasonably requested by the payee.  Any amount paid under this Section 3.3(b) to Buyer or Seller shall be paid with interest for the period from, and including, the Closing Date to, but excluding, the date of payment, calculated at the 90-day U.S. treasury bill rate as published in The Wall Street Journal in the "Money Rates" section on the Closing Date.  The Base Purchase Price, as finally adjusted pursuant to this Section 3.3 shall be the deemed the " Purchase Price ."

3.4           Allocation of Purchase Price .  Buyer and Seller shall use their good faith best efforts to agree upon an allocation among the Purchased Assets of the sum of the Purchase Price and the Assumed Liabilities consistent with Section 1060 of the Code and the Treasury Regulations thereunder within sixty (60) days after the Closing Date.  In the event that the Parties cannot agree on a mutually satisfactory allocation within said time

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period, the Parties shall appoint an Independent Accounting Firm which shall, at Seller’s and Buyer’s equal expense, determine the appropriate allocation with respect to the issues in dispute.  The finding of such Independent Accounting Firm shall be binding on the Parties.  After determination of the allocation by agreement of the Parties or by binding determination of the Independent Accounting Firm, Buyer and Seller agree to file, for the tax year in which Closing occurs, Internal Revenue Service Form 8594, and all federal, state, local and foreign Tax Returns, in accordance with such allocation.  Buyer and Seller shall report the transactions contemplated by this Agreement for Tax purposes in a manner consistent with the allocation determined pursuant to this Section 3.4.  Buyer and Seller agree to provide the other promptly with any information required to complete Form 8594.  Buyer and Seller shall notify and provide the other with reasonable assistance in the event of an examination, audit or other proceeding regarding the agreed upon allocation of the Purchase Price.

3.5           Prorations .

(a)           Buyer and Seller agree that all of the items normally prorated, including those listed below (but not including Income Taxes), relating to the business and operation of the Purchased Assets and the Gasification Real Property shall be prorated as of the Closing Date, with Seller liable to the extent such items relate to any time period prior to the Closing Date, and Buyer liable to the extent such items relate to periods commencing with the Closing Date (measured in the same units used to compute the item in question, otherwise measured by calendar days):

• • (i)                   Personal property, real estate and occupancy Taxes, assessments and other charges, if any, on or with respect to the business and operation of the Purchased Assets and, subject to the terms of the Amended Site Lease, the Gasification Real Property;

    (ii)                  Rent, Taxes and all other items (including prepaid services or goods not included in Inventory) payable by or to Seller under any of the Seller’s Agreements or the Intellectual Property agreements identified in Schedule 2.1(a)(xi) ;

    (iii)                 Any permit, license, registration, emission fees or other fees with respect to any Unit 1 Permit; and

    (iv)                 Sewer rents and charges for water, telephone, electricity and other utilities.

(b)           In connection with the prorations referred to in Section 3.5(a) , in the event that actual figures are not available at the Closing Date, the proration shall be based upon the actual Taxes or other amounts accrued through the Closing Date or paid

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for the most recent year (or other appropriate period) for which actual Taxes or other amounts paid are available.  Such prorated Taxes or other amounts shall be re-prorated and paid to the appropriate Party within sixty (60) days after the date that the previously unavailable actual figures become available.  Seller and Buyer agree to furnish each other with such documents and other records as may be reasonably requested in order to confirm all adjustment and proration calculations made pursuant to this Section 3.5 .

(c)           Notwithstanding anything to the contrary herein and for the avoidance of doubt, no proration shall be made under this Section 3.5 with respect to (i) real property Tax refunds described in Section 2.2(f) or (ii) Transfer Taxes described in Section 6.8(a) .

3.6           Deliveries by Seller .  At the Closing, Seller will deliver, or cause to be delivered, the following to Buyer:

(a)           Each of the Transaction Agreements, duly executed and in recordable form, if appropriate;

(b)           A FIRPTA Affidavit, duly executed by Seller;

(c)           Copies of all Seller’s Required Third Party Consents and Seller’s Required Regulatory Approvals and any and all governmental and other third party consents, waivers or approvals obtained by Seller with respect to the transfer of the Purchased Assets and the Gasification Real Property, or the consummation of the transactions contemplated by this Agreement and the Transaction Agreements;

(d)           Copies, certified by the Secretary or Assistant Secretary of Seller, of corporate resolutions authorizing the execution and delivery of this Agreement, each Transaction Agreement and all of the other agreements and instruments to be executed and delivered by Seller in connection herewith, and the consummation of the transactions contemplated hereby and thereby;

(e)           A certificate of the Secretary or Assistant Secretary of Seller identifying the name and title and bearing the signatures of the officers of Seller authorized to execute and deliver this Agreement, each Transaction Agreement and the other agreements and instruments contemplated hereby;

(f)            A certificate of good standing with respect to Seller, dated as of a date not earlier than five (5) Business Days prior to the Closing, from the office of the Secretary of State of the state of Indiana;

(g)           Any amounts for which Seller is liable pursuant to Section 3.5 ;

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(h)           One or more instruments, executed by Seller, evidencing termination of each of the Related Agreements;

(i)            Such other agreements, documents, instruments and writings as are required to be delivered by Seller at or prior to the Closing Date pursuant to this Agreement or otherwise reasonably required in connection herewith; and

(j)            Rights to those Emission Allowances as provided for in Section 3.8 .

3.7           Deliveries by Buyer .  At the Closing, Buyer will deliver, or cause to be delivered, the following to Seller:

(a)           The Base Purchase Price, together with any amounts for which Buyer is liable pursuant to Section 3.5 , by wire transfer of immediately available funds in accordance with Seller’s instructions or by such other means as may be agreed to by Seller and Buyer;

(b)           Each of the Transaction Agreements, duly executed and in recordable form, if appropriate;

(c)           Copies of all Buyer’s Required Third Party Consents and Buyer’s Required Regulatory Approvals and any and all governmental and other third party consents, waivers or approvals obtained by Buyer with respect to its acquisition of the Purchased Assets and the Gasification Real Property, or the consummation of the transactions contemplated by this Agreement and the Transaction Agreements;

(d)           Copies, certified by the Secretary or Assistant Secretary of Buyer, of resolutions authorizing the execution and delivery of this Agreement, each Transaction Agreement and all of the other agreements and instruments to be executed and delivered by Buyer in connection herewith, and the consummation of the transactions contemplated hereby and thereby;

(e)           A certificate of the Secretary or Assistant Secretary of Buyer identifying the name and title and bearing the signatures of the officers of such Buyer authorized to execute and deliver this Agreement, each Transaction Agreement and the other agreements and instruments contemplated hereby;

(f)            A certificate of good standing with respect  to Buyer, dated as of a date not earlier than five (5) Business Days prior to the Closing, from the office of the Secretary of State of such entity’s organization;

(g)           One or more instruments, executed by Buyer or SGS, as applicable, evidencing termination of each of the Related Agreements; and

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(h)           Such other agreements, documents, instruments and writings as are required to be delivered by Buyer at or prior to the Closing Date pursuant to this Agreement or otherwise reasonably required in connection herewith.

3.8           Emission Allowance Allocation .

(a)           SO2 Allowances .  Buyer shall have no right to existing or future SO2 Allowances allocated or to be allocated to Unit 1.  Seller shall retain the rights to all existing or future SO2 Allowances allocated or to be allocated to Unit 1.

(b)           NOx Allowances .  Buyer shall have the right to NOx Allowances that have been or will be allocated to Unit 1, as follows:

(i)            Year of the Closing :    If the transaction closes from and including January 1 through and including April 30,