Unassociated Document


Exhibit 10-9


FirstEnergy
Operating Companies

FERC Electric
Tariff, Original Volume No.2

Service Agreement
No.73




[Execution
Copy]







ELECTRIC
POWER SUPPLY AGREEMENT




Between The
Cleveland Electric Illuminating Company, Ohio Edison




Company,
Pennsylvania Power Company, The Toledo Edison




Company,
Sellers




And




FirstEnergy
Services Corp. , Buyer







This
Electric Power Supply Agreement ("Agreement") effective as
ofJanuary 1, 2001, is made by and between The Cleveland Electric Illuminating
Company, Ohio Edison Company, Pennsylvania Power Company, The Toledo Edison
Company ("the FirstEnergy Operating Companies" or "Seller"), and FirstEnergy
Services Corp. ("Services" or "Buyer"). The FirstEnergy Operating Companies and
Services may be identified collectively as "Parties" or individually as a
"Party." This Agreement is entered into in connection with the transfer of
operating control and ultimately ownership of the FirstEnergy Operating
Companies' generation assets to Services pursuant to Ohio electric restructuring
legislation and FirstEnergy's transition plan approved by the Ohio Public
Utilities Commission in Case No. 99-1212-EL-ETP, et at.
(hereinafter, "Ohio
Transition Plan").




WHEREAS,
the FirstEnergy
Operating Companies are in the process of restructuring their operations in
accordance with the Ohio Transition Plan by selling all of the output of their
nuclear generating facilities and the output of CEI and TE' s leasehold interest
in the Mansfield generating facilities (collectively "the Generating
Facilities") to Services; and




WHEREAS,
it is not feasible
for Seller to transfer ownership or control of its nuclear generating
facilities, or to sublease CEI and TE's leasehold interest in the Mansfield
generating facilities, at the current time; and




WHEREAS,
Buyer desires to
obtain the entire electric output of the Seller's Generating Facilities pursuant
to the rates, terms and conditions set forth herein.




It is agreed as
follows:
























	I.  	
      TERM







The sale and
purchase of electric power pursuant to this Agreement shall begin on January
1,2001, or such later effective date authorized by the Federal Energy Regulatory
Commission, and shall remain in effect until December 31, 2005, or such earlier
date as terminated by either Party upon at least sixty days written notice to
the other Party.





	II.  	
      SALE
      AND PURCHASE OF CAPACITY AND
ENERGY








	
      A.
	
      Seller shall
      make available or cause to be made available to Buyer all of the electric
      Capacity and Energy that is available from its Generating Facilities and
      Buyer shall purchase and pay for such Capacity and Energy in accordance
      with the terms of this Agreement. Seller shall make such firm Capacity and
      Energy available at the Delivery Points. Buyer shall arrange and will be
      responsible for all transmission service at and from the Delivery Points.
      Seller will also provide all Real Power Losses required by Buyer at and
      from the Delivery Points. The Capacity, Energy, and Real Power Losses
      supplied by Seller are collectively referred to as Buyer's "Power Supply
      Requirements". Electric Capacity and Energy supplied shall be sixty-hertz,
      three phase alternating current. The Power Supply Requirements will be
      provided in accordance with Good Utility Practice, and where applicable,
      the provisions of American Transmission Systems, Incorporated's Open
      Access Transmission Tariff (OATT).




 


	III.  	
      SCHEDULING
      AND SYSTEM PLANNING




 


		
      A.
	
      In order for
      Services to be able to plan adequately to market and sell all of the
      Capacity and Energy available from Seller, Seller shall notify Services on
      or before November 1 of each year during the term of this Agreement of the
      amount of Capacity and Energy it expects to have available in each month
      of the next calendar year.








	
      B.
	
      On or before
      April 1, Seller shall update its initial annual forecast of available
      Capacity and Energy for any full month(s) remaining in the calendar
      year.








	IV.  	
      PRICE







Seller shall
charge, and Buyer shall pay, for Buyer's Power Supply Requirements, as
follows:





	A.  	
      Capacity
      Charges







Buyer will pay
Seller one twelfth of the Capacity charge set forth in Exhibit A for each kW of
installed generation as identified in Exhibit C.





	B.  	
      Energy
      Charges







In
addition to the Capacity charges specified above, Buyer shall pay Seller the
Energy charge per MWh set forth in Exhibit A for all Energy supplied by Seller
to Buyer. The Energy supplied by Seller includes Real Power Losses. Buyer shall
provide Seller aggregated metered sales in sufficient detail for Seller to
determine after the fact, the quantity of Energy supplied to Buyer during a
billing period. Buyer and Seller will abide by all applicable Code of Conduct
provisions in exchanging this data, and such data will be considered
Confidential Information under Section 7.3 of this Agreement.

 







2










	C.  	
      Other
      Charges








	 	
      1.
	
      Taxes.
      If a revenue
      or per MWH tax is imposed on Capacity or Energy sold under this Agreement,
      the Buyer will reimbursed the Seller for such
taxes.








		
      D.
	
      Unless
      otherwise specifically agreed upon by the Parties, the calendar month
      shall be the standard period for all payments under this Agreement. As
      soon as practicable after the end of each month, the Seller will render an
      invoice to Buyer for the amounts due for Power Supply Requirements for the
      preceding month. Payment shall be due and payable within ten days of
      receipt of the invoice or, if such day is not a Business Day, then on the
      next Business Day. Buyer will make payments by electronic funds transfer,
      or by other mutually agreeable method(s) to the account designated by
      Seller. Any amounts not paid by the due date will be deemed delinquent and
      will accrue interest at the Interest Rate until the date of payment in
      full.








	
      E.
	
      Each Party
      shall keep complete and accurate records of its operations under this
      Agreement and shall maintain such data as may be necessary to determine
      the reasonableness and accuracy of all relevant data, estimates, or
      invoices submitted by or to it hereunder. All records regarding this
      Agreement shall be maintained for a period of two years from the date of
      the invoice or payment, or such longer period as may be required by
      law.








		
      F.
	
      Buyer shall
      have the right, at its own expense and during normal business hours, to
      audit the accounts and records of Seller that reasonably relate to the
      provision of service under this Agreement. If the audit reveals an
      inaccuracy in an invoice, the necessary adjustment in such invoice and the
      payments therefor will be promptly made. No adjustment will be made for
      any invoice or payment made more than two years from rendition thereof.
      This provision shall survive the termination of this Agreement for a
      period of two years from the date of termination for the purpose of such
      invoice and payment objections. To the extent that audited information
      includes Confidential Information, the Buyer shall keep all such
      information confidential under Section 7.3.








		
      G.
	
      Nothing
      contained herein shall be construed as affecting in any way the right of
      the Party furnishing service under this Agreement to unilaterally make
      application to the Federal Energy Regulatory Commission for a change in
      rates under Section 205 of the Federal Power Act and pursuant to the
      Commission's Rules and Regulations
thereunder.








	V.  	
      Metering







Generation metering
shall be installed, operated and maintained in accordance with the applicable
interconnection agreement between the FirstEnergy Operating Companies and ATSI.
Metering between control areas shall be handled in accordance with the
applicable Open Access Transmission Tariff. Retail metering shall be provided in
accordance with applicable state law. Nothing in this Agreement requires Seller
or Buyer to install new metering facilities.





	VI.  	
      Notices







All notices,
requests, statements or payments shall be made as specified below. Notices
required to be in writing shall be delivered by letter, facsimile or other
documentary form. Notice by facsimile or hand delivery shall be deemed to have
been received by the close of the Business Day on which it was transmitted or
hand delivered (unless transmitted or hand delivered after close in which case
it shall be deemed received at the close of the next Business Day). Notice by
overnight mail or courier shall be deemed to have been received two Business
Days after it was sent. A Party may change its addresses by providing notice of
same in accordance herewith.










3












NOTICES &
CORRESPONDENCE:







	
      To
      Seller:   FirstEnergy
      Operating Companies 

             President

             76 South Main Street

             Akron, Ohio 44308
	
      To
      Buyer:       FirstEnergy
      Services Corp. 

            Manager,
      Wholesale Energy 

            395 Ghent
      Road

                        Akron, Ohio
      44333







INVOICES &
PAYMENTS:





	
      To
      Seller:   FirstEnergy
      Operating Companies 

             President

                               76 South Main
      Street

            
      Akron, Ohio 44308        
	
      To
      Buyer:        FirstEnergy
      Services Corp. 

             Manager,
      Wholesale Energy 

             395
      Ghent Road

                                   
      Akron, Ohio
      44333







SCHEDULING:





	
      To
      Seller:     FirstEnergy
      Operating Companies

             President

             76 South Main
      Street

            
      Akron, Ohio 44308
	
      To
      Buyer:        FirstEnergy
      Services Corp. 

              
       Manager, Wholesale Energy 

                395
      Ghent Road

                                
       Akron, Ohio 44333











 








	VII.  	
      MISCELLANEOUS








	7.1  	
      Performance
      Excused







If either Party is
rendered unable by an event of Force Majeure to carry out, in whole or part, its
obligations hereunder, then, during the tendency of such Force Majeure but for
no longer period, the Party affected by the event (other than the obligation to
make payments then due or becoming due with respect to performance which
occurred prior to the event) shall be relieved of its obligations insofar as
they are affected by Force Majeure. The Party affected by an event of Force
Majeure shall provide the other Party with written notice setting forth the full
details thereof as soon as practicable after the occurrence of such event and
shall take all reasonable measures to mitigate or minimize the effects of such
event of Force Majeure; provided, however, that this provision shall not require
Seller to deliver, or Buyer to receive, Power at Delivery Points other than
those Delivery Points designated under this Agreement.




Force Majeure shall
be defined as any cause beyond the reasonable control of, and not the result of
negligence or the lack of diligence of, the Party claiming Force Majeure or its
contractors or suppliers. It includes, without limitation, earthquake, storm,
lightning, flood, backwater caused by flood, fire, explosion, act of the public
enemy, epidemic, accident, failure of facilities, equipment or fuel supply, acts
of God, war, riot, civil disturbances, strike, labor disturbances, labor or
material shortage, national emergency, restraint by court order or other public
authority or governmental agency, interruption of synchronous operation, or
other similar or dissimilar causes beyond the control of the Party affected,
which causes such Party could not have avoided by exercising good electric
operating practice. Nothing contained herein shall be construed to require a
Party to settle any strike, lockout, work stoppage, or other industrial
disturbance or dispute in which it may be involved or to take an appeal from any
judicial, regulatory or administrative action.










4












7.2. 
Transfer of
Title and Indemnification




Title and risk of
loss related to the Power Supply Requirements shall transfer to the Buyer at the
Delivery Points. Seller warrants that it will deliver the Power Supply
Requirements to Buyer free and clear of all liens, security interests, claims
and encumbrances or any interest therein or thereto by any person arising prior
to the Delivery Points. Each Party shall indemnify, defend an hold harmless the
other Party from and against any claims arising from or out of any event,
circumstance, act or incident first occurring or existing during the period when
control and title to the Power Supply Requirements is vested in the other
Party.




7.3  
Confidentiality 

 

Neither Party shall
disclose to third parties Confidential Information obtained from the other Party
pursuant to this Agreement except in order to comply with any applicable law,
regulation, or any exchange, control area, or independent system operator rule,
or in connection with any court or regulatory proceeding. Provided, however,
that each Party shall to the extent practicable use reasonable efforts to
prevent or limit the disclosure required to third parties.




7.4  
Further
Assurances




Subject to the
terms and conditions of this Agreement, each of the Parties hereto will use
reasonable efforts to take, or cause to be taken, all action, and to do, or
cause to be done, all things necessary, proper or advisable under applicable
laws and regulations to consummate and effective the transactions contemplated
hereby.




7.5   
Amendment




This Agreement may
be amended only by a written agreement signed by the Parties.




7.6    Assignment

 

Unless mutually
agreed to by the Parties, no assignment, pledge, or transfer of this Agreement
shall be made by any Party without the prior written consent of the other Party,
which shall not be unreasonably withheld, provided, however, that no prior
written consent shall be required for (i) the assignment, pledge or other
transfer to another company or affiliate in the same holding company system as
the assignor, pledgor or transferor, or (ii) the transfer, incident to a merger
or consolidation with, or transfer of all (or substantially all) of the assets
of the transferor, to another person or business entity; provided, however, that
such assignee, pledgee, transferee or acquirer of such assets or the person with
which it merges or into which it consolidates assumes in writing all of the
obligations of such Party hereunder and provided, further, that either Party
may, without the consent of the other Party (and without relieving itself from
liability hereunder), transfer, sell, pledge, encumber or assign such Party's
rights to the accounts, revenues or proceeds hereof in connection with any
financing or other financial arrangements.













5












7.7  
Governing
Law




The interpretation
and performance of this Agreement shall be according to and controlled by the
laws of the State of Ohio regardless of the laws that might otherwise govern
under applicable principles of conflicts of laws.




7.8   
Counterparts




This Agreement may
be executed in two or more counterparts and each such counterpart shall
constitute one and the same instrument.




7.9    Waiver




No waiver by a
Party of any default by the other Party shall be construed as a waiver of any
other default. Any waiver shall be effective only for the particular event for
which it is issued and shall not be deemed a waiver with respect to any
subsequent performance, default or matter.

 

7.10   No
Third Party Beneficiaries


This Agreement
shall not impart any rights enforceable by any third party (other than a
permitted successor or assignee bound to this Agreement).




7.11 
 Severability




Any provision
declared or rendered unlawful by any applicable court of law or regulatory
agency or deemed unlawful because of a statutory change will not otherwise
affect the remaining lawful obligations that arise under this
Agreement.




7.12 
 Construction




The term
"including" when used in this Agreement shall be by way of example only and
shall not be considered in any way to be a limitation. The headings used herein
are for convenience and reference purposes only.




IN WITNESS
WHEREOF, the Parties have
caused their duly authorized representatives to execute this Electric Power
Supply Agreement on their behalf as of December 29,2000.

 


	
      FirstEnergy
      Services Corp.

       

       

      By:
      ________________________________

      Arthur R.
      Garfield

      President
	
      The Cleveland
      Electric Illuminating Company

      Ohio Edison
      Company

      The Toledo
      Edison Company

       

       

      By:
      _________________________________

      H. Peter
      Burg

      President















6









 




	 	
      Pennsylvania
      Power Company

       

       

      By:
      ______________________________

      H. Peter
      Burg

      Chairman of
      the Board

















7












Exhibit
A








	1.  	
      Capacity
      Charges












	
      Year
	
      Annual
      Price

	
      2001
	
      $57,836,418

	
      2002
	
      $57,836,418

	
      2003
	
      $57,836,418

	
      2004
	
      $57,836,418

	
      2005
	
      $57,836,418

	 	
      $57,836,418

















	2.  	
      Energy
      Charges




 




	 	
      2001
	
      2002
	
      2003
	
      2004
	
      2005

	
      $/MWH
	
      24.33
	
      22.58
	
      25.39
	
      25.90
	
      24.47











	3.  	
      Taxes







Will be charged on
a per MWH Basis if applicable.










8












Exhibit B


DEFINITIONS




In addition to
terms defined elsewhere in this Agreement, the terms listed below are defined as
follows:




Affiliate means, with
respect to any person, any other person (other than an individual) that,
directly or indirectly, through one or more intermediaries, controls, or is
controlled by, or is under common control with, such person. For purposes of the
foregoing definition, "control means the direct or indirect ownership of more
than fifty percent (50%) of the outstanding capital stock or other equity
interests having ordinary voting power or ability to direct the affairs of the
affiliate.




American
Transmission Systems, Inc. or ATSI means the wholly
owned subsidiary of FirstEnergy Corp. that owns, operates, or controls
facilities used for the transmission of Energy within the FirstEnergy Control
Area.




Business
Day means any day on
which Federal Reserve member banks in New York City are open for
business.




Capacity
means the resource
that produces electric Energy, measured in megawatts.




Delivery
Point means, where
Capacity and Energy are supplied from generating facilities

owned or controlled
by the Seller within the FirstEnergy Control Area, the point of interconnection
between the generating facility and the transmission facilities of American
Transmission Systems, Inc. Delivery Point means, where Capacity and Energy are
supplied from generating resources outside of the FirstEnergy Control Area, the
interface between the facilities of the adjacent control area and the facilities
of American Transmission Systems, Inc.




Energy
means electric
energy delivered under this Agreement at three-phase, 60-hertz alternating
current measured in megawatt hours.




FERC means The Federal
Energy Regulatory Commission or its regulatory successor.




FirstEnergy
Control Area means
the electric power system owned or controlled by affiliates of FirstEnergy Corp.
to which a common automatic generation control scheme is applied in order
to:





	 	
      l)
	
      match, at all
      times, the power output of the generators within the electric power
      system, and Capacity and Energy purchased from entities outside the
      electric power system, with the load within the electric power
      system;





	 	
      2)
	
      maintain
      scheduled interchange with other control areas within the limits of Good
      Utility Practice;





	 	
      3)
	
      maintain the
      frequency of the electric power system within reasonable limits in
      accordance with Good Utility Practice; and





	 	
      4)
	
      provide
      sufficient generating capacity to maintain operating reserves in
      accordance with Good Utility Practice.







Force
Majeure has the meaning
given in Section 7.1.










9












Good
Utility Practice means 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 and acts which, 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
Practice is not intended to be limited to the optimum practice, method or act to
the exclusion of all others, but rather to be acceptable practices, methods or
acts, generally accepted in the region and consistently adhered to by utilities
in the region.




Interest
Rate means the lesser
of Prime Rate plus two percent and the maximum lawful rate permitted by
applicable law.




NERC means The North
American Electric Reliability Council.




Power means Capacity
and/or Energy.




Prime
Rate means for any
date, the per annum rate of interest announced from time to time by Citibank,
N.A., as its prime rate for commercial loans, effective for such date as
established from time to time by such bank.




Real Power
Losses means Capacity and
Energy supplied to compensate for losses that occur when Power is delivered over
transmission and distribution facilities.




Taxes means all ad
valorem, property, occupation, utility, gross receipts, sales, use, excise and
other taxes, governmental charges, licenses, permits and assessments, other than
taxes based on net income or net worth.




Transmission
Provider means the utility
or utilities, including ATSI, transmitting Power on behalf of Buyer to or from
the Delivery Point(s) under this Agreement.










10












Exhibit
C

 

 




Installed
Generation







	
       

      Unit
	 	
      Net
      Demonstrated

      Capability
      (MW) 
	 
	
      Beaver Valley
      Unit 1 

      Beaver Valley
      Unit 2 

      Davis
      Besse

      Mansfield
      Unit 1 * 

      Mansfield
      Unit 2* 

      Mansfield
      Unit 3* 

      Perry
	 	 	
      810

      820

      883

      51

      358

      355

      1,254
	 
	
      Total
	 	 	
      4,531
	 










*CEI and TE
leasehold interest only.