Unassociated Document


    [Execution
      Copy]

     

    Exhibit
      10.1

    


    OE
      NUCLEAR CAPITAL
      CONTRIBUTION AGREEMENT 

     

     

    by
      and
      between

     

    OHIO
      EDISON
      COMPANY

     

    and

     

    FIRSTENERGY
      NUCLEAR
      GENERATION CORP.

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    


    CAPITAL CONTRIBUTION
      AGREEMENT,
      dated as of
      _________, 2005 between Ohio Edison Company, an Ohio corporation (“Ohio Edison”)
      and FirstEnergy Nuclear Generation Corp., an Ohio corporation (“Nuclear
      Genco”).

     

    R
      E C I T A L
      S

     

    WHEREAS,
      Ohio Edison
      wishes to make a capital contribution to Nuclear Genco of the Contributed Assets
      (in each case as defined below) on the terms and conditions set forth herein;
      and

     

    WHEREAS,
      the Board
      of Directors of Ohio Edison and Nuclear Genco have approved Ohio Edison’s
      capital contribution to Nuclear Genco of all of Ohio Edison’s right, title and
      interest in and to (a)
      its undivided
      ownership interests in Units Nos. 1 and 2 of the Beaver Valley Nuclear Power
      Plant, (b)
      its undivided
      ownership interests in the Beaver Valley Nuclear Power Plant Common Facilities,
      and (c)
      the shares of
      common stock of OES Nuclear Incorporated, an Ohio corporation, and associated
      decommissioning funds and other assets, all as more specifically described
      in
      Annex A and in Annex C hereto (collectively, the “Contributed Assets”), together
      with Ohio Edison’s transfer and assignment prior to, on or from time to time
      after the Contribution Date (as hereinafter defined) to Nuclear Genco of all
      of
      Ohio Edison’s rights, liabilities and obligations in respect of $411,915,000
      aggregate principal amount of outstanding pollution control revenue bonds with
      respect to the Contributed Assets (as more specifically described in Annex
      B
      hereto) and other included liabilities as more specifically described in Annex
      C
      (collectively, the “Transferred Liabilities”, and together with the Contributed
      Assets, the “Contribution”); and

     

    WHEREAS,
      each of the
      parties hereto has agreed to execute and deliver all such agreements,
      certificates and other documents as they deem necessary or desirable to
      implement the Contribution, with such terms, conditions, modifications,
      amendments or alterations as the officers executing the same shall approve
      as
      necessary or desirable, such approval to be conclusively established by their
      execution thereof, and to take all actions necessary or desirable in order
      to
      enable the parties to fulfill their obligations under such agreements,
      certificates and other documents; and

     

    WHEREAS,
      each of the
      parties hereto has determined that the Contribution is in its best
      interests.

     

    NOW,
      THEREFORE, in
      consideration of the premises and intending to be legally bound hereby, the
      parties hereto agree as follows:

     

    

      1. 
         Capital Contribution. Subject to the terms and conditions
        hereof, Ohio Edison hereby agrees to make, and Nuclear Genco agrees to accept,
        the Contribution of the Contributed Assets and to assume the Transferred
        Liabilities. The parties hereby acknowledge and agree that the value of the
        Capital Contribution will be the book value thereof, less accumulated
        depreciation, of the Contributed Assets as shown on Ohio Edison’s balance sheet
        as of the end of the fiscal quarter immediately preceding the Contribution
        Date,
less the agreed upon value of the Transferred Liabilities and the Assumed
        Liabilities as of the Contribution Date which Ohio Edison transfers to Nuclear
        Genco and Nuclear Genco assumes prior to or on the Contribution
        Date.

       

    

    


    
      
        
        

      

      
        -2-

        
          

        

      

      
        
        

      

    

    


    2. 
      Effectiveness of Transaction.

     

    
      a. The
        initial
        Contribution shall take place as promptly as practicable following receipt
        of
        all necessary regulatory authorizations and other consents and approvals
        as may
        be necessary, appropriate or advisable to consummate the transactions
        contemplated hereby (the “Contribution Date”), it being understood that, as
        contemplated herein, Ohio Edison intends to transfer certain of the Transferred
        Liabilities to Nuclear Genco from time to time after the Contribution
        Date.

       

      b. The
        parties
        hereby agree that the Contribution shall, to the extent they deem appropriate,
        be further evidenced and effected through the taking of all such additional
        actions and the execution of all instruments, agreements and documents of
        transfer, including without limitation such deeds, assignment and assumption
        agreements, releases and other documents as may be necessary or desirable
        to
        further evidence or carry out the Contribution.

       

    

    3. Covenants.

    

      a. Ohio
        Edison
        hereby undertakes and agrees that the Contributed Assets will be transferred
        to
        Nuclear Genco free and clear of the liens of the Indenture, dated as of August
        1, 1930, between Ohio Edison and the Bank of New York, as successor to Bankers’
        Trust Company, as Trustee, as amended and supplemented, and the General Mortgage
        Indenture and Deed of Trust, dated as of January 1, 1998, between Ohio Edison
        and The Bank of New York, as Trustee as amended and supplemented, but may
        be
        subject to other liens, claims, liabilities and encumbrances, all of which
        Nuclear Genco agrees to accept and assume, except as otherwise provided
        herein.

       

      b. Nuclear
        Genco agrees to accept prior to or on the Contribution Date and from time
        to
        time thereafter as Ohio Edison may request the assignment of the Transferred
        Liabilities, and all such other liabilities and obligations of Ohio Edison
        as
        may be associated with, or directly related to, the Contributed Assets
        including, without limitation, any decommissioning liabilities and obligations
        associated with the Contributed Assets and other liabilities as more
        specifically identified in the form of Assignment and Assumption Agreement
        attached as Annex C hereto (the “Assumed Liabilities”), which include, among
        other liabilities, liability for the decommissioning and decontamination
        of the
        Contributed Assets, management of spent nuclear fuel, and all environmental
        liabilities, as well as any liabilities associated with the ownership of
        the
        Contributed Assets from and after the Contribution Date, but otherwise exclude
        the liabilities and obligations associated with Ohio Edison’s ownership of the
        Contributed Assets prior to the Contribution Date. Nuclear Genco hereby agrees
        fully to perform and discharge the Assumed Liabilities in a timely fashion.
        Nuclear Genco further agrees to indemnify and hold harmless Ohio Edison from
        and
        against any and all liabilities, actions, claims, damages, costs and expenses
        which Ohio Edison may suffer or incur as a result of Nuclear Genco’s failure to
        perform the foregoing obligations.

       

    

    
      c. The
        parties
        acknowledge and agree that other than the Transferred Liabilities and the
        Assumed Liabilities, Ohio Edison shall retain and discharge all liabilities
        and
        obligations associated with, or directly relating to, the Contributed Assets
        arising out of Ohio Edison’s ownership of the Contributed Assets prior to the
        Contribution Date, including, without limitation, any liability or obligation
        to
        fund the deficiency as of the Contribution Date in Ohio Edison’s nuclear
        decommissioning trusts associated with the Contributed Assets, in the amount
        and
        as may be required by the Nuclear Regulatory Commission in connection with
        the
        transactions contemplated hereby . Ohio Edison further agrees to timely and
        fully discharge all such liabilities and obligations and to indemnify and
        hold
        harmless Nuclear Genco from and against any and all liabilities, actions,
        claims, damages, costs and expenses which Nuclear Genco may suffer or incur
        as a
        result of Ohio Edison’s failure to perform the foregoing
        obligations.

       

      
        
          
          

        

        
          -3-

          
            

          

        

        
          
          

        

      

       

      d. The
        parties
        covenant and agree to use all commercially reasonable efforts to obtain all
        regulatory and other approvals, authorizations and consents, including rulings
        from the Internal Revenue Service, and make all such filings necessary,
        appropriate or desirable in order for Ohio Edison to make and for Nuclear
        Genco
        to accept the Contribution of the Contributed Assets, the Transferred
        Liabilities and the Assumed Liabilities as contemplated hereby.

       

    

    4. Governing
      Law.
      This Capital
      Contribution Agreement shall be governed by the substantive laws of the State
      of
      Ohio, without reference to its conflicts of laws principles.

     

    5. Counterparts.
      This Capital
      Contribution Agreement may be executed in counterparts, each of which taken
      together shall be deemed one and the same instrument.

     

    
 

    IN
      WITNESS WHEREOF, this Capital Contribution Agreement has been duly executed
      and
      delivered by the parties as of the date first above written.

     

     

    
      
        	 	 	 
	 	OHIO
                EDISON COMPANY
	 
 	 
 	 
 
	 	By:  	/s/ 
	 	
                
Name
	 	Title 


      



     

    
      	 	 	 
	 	
              FIRSTENERG6Y
                NUCLEAR GENERATION

              CORP.

            
	 
 	 
 	 
 
	 	By:  	/s/ 
	 	
              
Name
	 	Title 


    

    


    
      
        
           

           

        

        
        

      

      
        -4-

        
          

        

      

      
        
        

        
        

      

    

    



    ANNEX
      A

     

    General
      Description of Contributed Assets

     

    


     

    
      	 	
              1.

            	
              Ohio
                Edison’s
                35% undivided ownership interest in Unit No. 1 of the Beaver Valley
                Nuclear Power Plant, Borough of Shippingport,
                Pennsylvania

            


    

     

    
      	 	
              2.

            	
              Ohio
                Edison’s
                20.22% undivided ownership interest in Unit No. 2 of the Beaver Valley
                Nuclear Power Plant, Borough of Shippingport,
                Pennsylvania

            


    

     

    
      	 	
              3.

            	
              Ohio
                Edison’s
                undivided ownership interest in the Beaver Valley Nuclear Power Plant
                Common Facilities, Borough of Shippingport,
                Pennsylvania

            


    

     

    
      	 	
              4.

            	
              The
                common
                stock of OES Nuclear, Incorporated, an Ohio
                corporation

            


    

     

    
      	 	
              5.

            	
              Ohio
                Edison’s
                interest in the qualified and non-qualified nuclear decommissioning
                trust
                funds associated with its ownership interests in the Beaver Valley
                and
                Perry Nuclear Power Plants

            


    

     

    
      	 	
              6.

            	
              All
                of Ohio
                Edison’s right, title and interest in and to any and all contracts, fuel,
                spare parts, inventories, equipment, supplies and other assets associated
                with or necessary for the ownership or operation of the
                foregoing

            


    

     

    in
      each case as more
      specifically described in the Assignment and Assumption Agreement attached
      as
      Annex C.

     

    


     

    


    
      
        
           

           

        

        
        

      

      
        -5-

        
          

        

      

      
        
        

        
        

      

    

    



    ANNEX
      B

     

    Pollution
      Control
      Revenue Bonds

     

    
      	
               

              Issuer

            	 	
               

              Bonds

            	 	
              Principal

              Amount

            	 
	
              Ohio
                Water
                Development Authority 

               

            	 	 	
              00
                Series A
                due 2033

              
              

            	 	
              $

              
              

            	
              44,800,000

              
              

            	 
	
              Ohio
                Air
                Quality Development Authority 

               

            	 	 	
              00
                Series A
                due 2033

              
              

            	 	
              $

              
              

            	
              12,300,000

              
              

            	 
	
              * Ohio
                Water
                Development Authority 

               

            	 	 	
              88
                Series
                A&B due 2018

              
              

            	 	
              $

              
              

            	
              33,000,000

              
              

            	 
	
              *Ohio
                Air
                Quality Development Authority 

               

            	 	 	
              88
                Series
                A&B due 2018

              
              

            	 	
              $

              
              

            	
              23,000,000

              
              

            	 
	
              Beaver
                County
                Industrial Development Authority 

               

            	 	 	
              99
                Series A
                due 2033

              
              

            	 	
              $

              
              

            	
              108,000,000

              
              

            	 
	
              Beaver
                County
                Industrial Development Authority 

               

            	 	 	
              01
                Series A
                due 2031

              
              

            	 	
              $

              
              

            	
              10,815,000

              
              

            	 
	
              *Beaver
                County
                Industrial Development Authority 

               

            	 	 	
              95
                Series due
                2020

              
              

            	 	
              $

              
              

            	
              60,000,000

              
              

            	 
	
              Ohio
                Water
                Development Authority 

               

            	 	 	
              99
                Series due
                2033

              
              

            	 	
              $

              
              

            	
              30,000,000

              
              

            	 
	
              Ohio
                Water
                Development Authority 

               

            	 	 	
              99
                Series B
                due 2033

              
              

            	 	
              $

              
              

            	
              41,000,000

              
              

            	 
	
              Ohio
                Air
                Quality Development Authority 

               

            	 	 	
              99
                Series B
                due 2033

              
              

            	 	
              $

              
              

            	
              9,000,000

              
              

            	 
	
              Ohio
                Water
                Development Authority 

               

            	 	 	
              95
                Series due
                2015

              
              

            	 	
              $

              
              

            	
              40,000,000

              
              

            	 
	 	 	 	 	 	 	 	 
	
               

            	 	 	
              TOTAL:
 	 	
              $

              
              

            	
              411,915,000

              
              

            	 


    

    


     

    
      
        

      


      
        * To
          be transferred
          to, and assumed by, Nuclear Genco on or prior to the Contribution
          Date.

         

         

        
          
            
            

          

          
            -6-