Exhibit B-4
[Execution Copy; FirstEnergy Solutions
FirstEnergy Generation]
SERVICE AGREEMENT
This Service Agreement ("Agreement") is entered into as of the 1st day of
June, 2003, by and between each of the associate companies listed on the
signature page hereto (each a "Client Company"), and FirstEnergy Service
Company, an Ohio corporation ("Service Company").
WHEREAS, Service Company is a direct wholly-owned subsidiary of FirstEnergy
Corp., a registered holding company under the Public Utility Holding Company Act
of 1935, as amended (the "Act");
WHEREAS, Service Company has been formed for the purpose of providing
administrative, management and other services to FirstEnergy Corp. and its
associate companies, including Client Company (together, the "Client
Companies"); and
WHEREAS, Client Company believes that it is in its interest to enter into
an arrangement whereby Client Company may agree to purchase such administrative,
management and other services from Service Company as Client Company may choose
at cost as determined in accordance with this Agreement and Rules 90 and 91
under the Act;
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and other valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto, intending to be legally bound, hereby
agree as follows:
1. DESCRIPTION OF SERVICES.
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Service Company agrees to provide certain administrative, management or
other services (the "Services") to Client Company similar to those supplied to
other Client Companies of Service Company. Such services are and will be
provided to Client Company only at the request of Client Company. Exhibit A
hereto lists and describes all of the Services that are available from Service
Company.
2. PERSONNEL.
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In order to provide the Services, Service Company will employ executive
officers, accountants, financial advisers, technical advisers, attorneys and
other persons with the necessary qualifications. If necessary, Service Company
may also arrange for the services of nonaffiliated experts, consultants and
attorneys in connection with the performance of any of the Services provided
under this Agreement.
3. COMPENSATION AND ALLOCATION.
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As and to the extent required by law, Service Company provides and will
provide such services at fully allocated cost, determined in accordance with
Rules 90 and 91 under the Act. Exhibit A hereof contains rules for determining
and allocating such costs.
4. TERMINATION AND MODIFICATION.
----------------------------
Either party to this Agreement may terminate this Agreement by providing 60
days written notice of such termination to the other party. This Agreement is
subject to termination or modification at any time to the extent its performance
may conflict with the provisions of the Act or with any rule, regulation or
order of the Securities and Exchange Commission (the "Commission") adopted
before or after the making of this Agreement. This Agreement shall be subject to
the approval of any state commission or other state regulatory body whose
approval is, by the laws of said state, a legal prerequisite to the execution
and delivery or the performance of this Agreement.
5. SERVICE REQUESTS.
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Client Company and Service Company will prepare a Service Request on or
before September 30th of each year listing Services to be provided to Client
Company by Service Company and any special arrangements related to the provision
of such Services for the coming year, based on Services provided during the
preceding year. Client Company and Service Company may supplement the Service
Request during the year to reflect any additional or special Services that
Client Company wishes to obtain from Service Company, and the arrangements
relating thereto.
6. BILLING AND PAYMENT.
-------------------
Unless otherwise set forth in a Service Request, payment for Services
provided by Service Company shall be by making remittance of the amount billed
or by making appropriate accounting entries on the books of Client Company and
Service Company. Billing will be made on a monthly basis, with the xxxx to be
rendered as soon as practicable after the close of the month, and remittance or
accounting entries completed within 30 days of billing. Any amount remaining
unpaid after 30 days following receipt of the xxxx shall bear interest thereon
from the due date of the xxxx until payment at a rate equal to the prime rate on
the due date.
7. NOTICE.
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Where written notice is required by this Agreement, all notices, consents,
certificates, or other communications hereunder shall be in writing and shall be
deemed given when mailed by United States registered or certified mail, postage
prepaid, return receipt requested, addressed as follows:
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To Client Company: c/o President
00 Xxxxx Xxxx Xx.
Xxxxx, Xxxx 00000
To Service Company: c/o Vice President and Controller
00 Xxxxx Xxxx Xxxxxx
Xxxxx, Xxxx 00000
8. GOVERNING LAW.
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This Agreement shall be governed by and construed in accordance with the
laws of the State of Ohio, without regard to its conflict of laws provisions.
9. MODIFICATION.
------------
No amendment, change or modification to this Agreement shall be valid,
unless made in writing and signed by both parties hereto.
10. ENTIRE AGREEMENT.
----------------
This Agreement, together with its exhibits, constitutes the entire
understanding and agreement of the parties with respect to its subject matter,
and effective upon the execution of this Agreement by the respective parties
hereof, any and all prior agreements, understandings or representations with
respect to this subject matter are hereby terminated and canceled in their
entirety and are of no further force and effect, except to the extent
transactions thereunder have taken place prior to such effective date in which
case such agreements will govern the terms of such transactions.
11. WAIVER.
------
No waiver by either party hereto of a breach of any provision of this
Agreement shall constitute a waiver of any preceding or succeeding breach of the
same or any other provision hereof.
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12. ASSIGNMENT.
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This Agreement shall inure to the benefit and shall be binding upon the
parties and their respective successors and assigns. No assignment of this
Agreement or either party's rights, interests or obligations hereunder may be
made without the other party's consent, which shall not be unreasonably
withheld, delayed or conditioned.
13. SEVERABILITY.
If any provision or provisions of this Agreement shall be held by a court
of competent jurisdiction to be invalid, illegal, or unenforceable, the
validity, legality, and enforceability of the remaining provisions shall in no
way be affected or impaired thereby.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of this 1st day of June, 2003.
FirstEnergy Service Company
By:_________________________________
Xxxxxx X. Xxxxxx
Vice President & Controller
Client Companies:
FirstEnergy Solutions Corp.
FirstEnergy Generation Corp.
By: __________________________________
Xxxxxxx X. Xxxxxxxxx
President
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