File No. 70-9353
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
__________________________________
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM U-1
__________________________________
APPLICATION OR DECLARATION
under the
PUBLIC UTILITY HOLDING COMPANY ACT OF 1935
* * *
AMERICAN ELECTRIC POWER COMPANY, INC.
AEP RESOURCES, INC.
AEP ENERGY SERVICES, INC.
1 Riverside Plaza, Columbus, Ohio 43215
(Name of company or companies filing this statement
and addresses of principal executive offices)
* * *
AMERICAN ELECTRIC POWER COMPANY, INC.
1 Riverside Plaza, Columbus, Ohio 43215
(Name of top registered holding company
parent of each applicant or declarant)
* * *
Susan Tomasky, General Counsel
AMERICAN ELECTRIC POWER SERVICE CORPORATION
1 Riverside Plaza, Columbus, Ohio 43215
Jeffrey D. Cross, General Counsel
AEP RESOURCES, INC.
1 Riverside Plaza, Columbus, Ohio 43215
(Names and addresses of agents for service)
American Electric Power Company, Inc. ("AEP"), a holding
company registered under the Public Utility Holding Company Act of
1935, as amended ("1935 Act"), AEP Energy Services, Inc. ("AEPES")
and AEP Resources, Inc. ("Resources"), wholly-owned non-utility
subsidiaries of AEP, hereinafter sometimes collectively referred to
as "Applicants", hereby amend their Application or Declaration on
Form U-1 in File No. 70-9353 as follows:
1. By adding the following to the end of Item 1.C:
"Dividends Out of Capital. Rule 46 under the 1935 Act
prohibits subsidiaries of registered holding companies,
including those companies formed by Applicants to own Energy
Assets or to hold, directly or indirectly, Applicants'
ownership interests in such companies (collectively, 'Energy
Asset Subsidiaries'), from declaring or paying dividends out
of capital or unearned surplus. It is requested that Energy
Asset Subsidiaries be authorized to declare and pay dividends
to their parent companies from time to time out of capital or
unearned surplus to the extent permitted by applicable law.FN1
FN1 This authorization will not apply if any company becomes
a 'public utility' as defined in the 1935 Act.
It is expected that situations will arise where Energy
Asset Subsidiaries will have unrestricted cash available for
distribution in excess of current and retained earnings.
Consequently, in these situations the declaration and payment
of a dividend would have to be charged, in whole or in part,
to capital or unearned surplus.
One such situation could result if an Energy Asset
Subsidiary were to sell a portion of its equity in a
subsidiary to a third party for cash. It then would have
substantial unrestricted cash available for upstream
distribution, but (assuming no profit on the sale) would not
have available current earnings and therefore could not,
without prior Commission approval, declare and pay a dividend
to the Applicants out of such cash proceeds.
Any dividend actually declared and paid by an Energy
Asset Subsidiary out of capital or unearned surplus pursuant
to the authority requested herein will conform to applicable
law of the respective company's jurisdiction of organization
and applicable covenant restrictions in loan or other
financing agreements.
The ability of the Energy Asset Subsidiaries to use
distributable cash to pay dividends ultimately to Resources or
AEPES will benefit the AEP System by enabling Resources and
AEPES to dividend the cash to AEP FN2
FN2 Resources has authority to declare and pay dividends out
of capital or unearned surplus. HCAR No. 26760
(September 18, 1997).
or to apply such amounts to the reduction or refinancing of
outstanding bank borrowings and to fund operations of other AEP
subsidiaries. In addition, since Energy Asset Subsidiaries will be
engaged in activities described in this Application, the payment of
dividends out of capital or unearned surplus by these AEP direct
and indirect subsidiaries will not adversely affect the financial
integrity of the AEP System or jeopardize the working capital of
AEP's Utility Subsidiaries within the contemplation of Section
12(c) of the 1935 Act. Similar authority was granted by the
Commission in Entergy Corporation, HCAR No. 27039 (June 22, 1999),
GPU International, Inc., HCAR No. 27023 (May 14, 1999) and Cinergy
Corp., HCAR No. 26984 (March 1, 1999)."
2. By amending and restating Item 1.E:
"E. Compliance with Rule 54
Rule 54 provides that in determining whether to approve
certain transactions other than those involving an exempt
wholesale generator ('EWG') or a foreign utility company
('FUCO'), as defined in the 1935 Act, the Commission will not
consider the effect of the capitalization or earnings of any
subsidiary which is an EWG or FUCO if Rule 53(a), (b) and (c)
are satisfied. As set forth below, all applicable conditions
of Rule 53(a) are currently satisfied and none of the
conditions set forth in Rule 53(b) exist or will exist as a
result of the transactions proposed herein, thereby satisfying
such provision and making Rule 53(c) inapplicable.
Rule 53(a)(1). As of March 31, 1999, AEP, through its
subsidiary, Resources, had aggregate investment in FUCOs of
$823,265,000. This investment represents approximately 48.6%
of $1,693,698,000, the average of the consolidated retained
earnings of AEP reported on Forms 10-Q and 10-K for the four
consecutive quarters ended March 31, 1999.
Rule 53(a)(2). Each FUCO in which AEP invests will
maintain books and records and make available the books and
records required by Rule 53(a)(2).
Rule 53(a)(3). No more than 2% of the employees of the
utility subsidiaries of AEP will, at any one time, directly or
indirectly, render services to any FUCO.
Rule 53(a)(4). AEP has submitted and will submit a copy
of Item 9 and Exhibits G and H of AEP's Form U5S to each of
the public service commissions having jurisdiction over the
retail rates of AEP's utility subsidiaries.
Rule 53(b). (i) Neither AEP nor any subsidiary of AEP is
the subject of any pending bankruptcy or similar proceeding;
(ii) AEP's average consolidated retained earnings for the four
most recent quarterly periods ($1,693,698,000) represented an
increase of approximately $19,477,000 (or 1%) in the average
consolidated retained earnings from the previous four
quarterly periods ($1,674,221,000); and (iii) for the fiscal
year ended December 31, 1998, AEP did not report operating
losses attributable to its direct or indirect investments in
EWGs and FUCOs.
AEP was authorized to invest up to 100% of its
consolidated retained earnings in EWGs and FUCOs (HCAR No.
26864, April 27, 1998) (the '100% Order') in File No. 70-9021.
In connection with its consideration of AEP's application for
the 100% Order, the Commission reviewed AEP's procedures for
evaluating EWG or FUCO investments. Based on projected
financial ratios and on procedures and conditions established
to limit the risks to AEP involved with investments in EWGs
and FUCOs, the Commission determined that permitting AEP to
invest up to 100% of its consolidated retained earnings in
EWGs and FUCOs would not have a substantial adverse impact
upon the financial integrity of AEP, nor would it have an
adverse impact on any of its utility subsidiaries or their
customers, or on the ability of state commissions to protect
such utility subsidiaries or their customers. Since similar
considerations are involved hereunder with respect to Rule 54,
Applicants should not be required to make subsequent Rule 54
filings once AEP's aggregate investment in EWGs and FUCOs
exceeds 50% of its consolidated retained earnings."
SIGNATURE
Pursuant to the requirements of the Public Utility Holding
Company Act of 1935, the undersigned companies have duly caused
this statement to be signed on their behalf by the undersigned
thereunto duly authorized.
AMERICAN ELECTRIC POWER COMPANY, INC.
AEP ENERGY SERVICES, INC.
AEP RESOURCES, INC.
By_/s/ A. A. Pena___________________
Treasurer
Dated: July 29, 1999
