<PAGE> File No. 70-8337
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 3
TO
FORM U-1
APPLICATION OR DECLARATION
under the
PUBLIC UTILITY HOLDING COMPANY ACT OF 1935
* * *
OHIO VALLEY ELECTRIC CORPORATION
P.O. Box 468, Piketon, Ohio 45661
INDIANA-KENTUCKY ELECTRIC CORPORATION
P.O. Box 468, Piketon, Ohio 45661
(Name of 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)
* * *
G. P. Maloney, Executive Vice President
AMERICAN ELECTRIC POWER SERVICE CORPORATION
1 Riverside Plaza, Columbus, Ohio 43215
A. Joseph Dowd, General Counsel
AMERICAN ELECTRIC POWER SERVICE CORPORATION
1 Riverside Plaza, Columbus, Ohio 43215
(Names and addresses of agents for service)
<PAGE>
The undersigned Ohio Valley Electric Corporation ("OVEC") and
Indiana-Kentucky Electric Corporation ("IKEC") hereby amend their
joint Application or Declaration on Form U-1 in File No. 70-8337 as
follows:
1. By adding the following sentence at the end of ITEM 3.
APPLICABLE STATUTORY PROVISIONS:
"OVEC and IKEC hereby request the Commission to find
pursuant to Rule 50(a)(5) that compliance with the
provisions of Rule 50 is not necessary in connection with
the proposed letter of credit."
2. The following exhibit is filed as part of this statement:
Exhibit B Form of Reimbursement Agreement
SIGNATURE
Pursuant to the requirements of the Public Utility
Holding Company Act of 1935, the undersigned company has duly
caused this statement to be signed on its behalf by the undersigned
thereunto duly authorized.
OHIO VALLEY ELECTRIC CORPORATION
INDIANA-KENTUCKY ELECTRIC CORPORATION
By__/s/ G. P. Maloney_______________
Vice President
Dated: April 7, 1994
ovcfinan.94\amendu-1.#3
EXHIBIT B
Application and Agreement MELLON BANK
Standby Letter of Credit Letter of Credit Administration
Three Mellon Bank Center
Pittsburgh, PA 15259
(for Bank use only) L/C No. Date of Application
___________________
The undersigned hereby requests you ("Mellon") to issue your Irrevocable
Letter of Credit ("Credit") in accordance with the terms and conditions set
forth below.
Letter of Credit to be issued by __ Mail __ Telex
___________________________________________________________________________
A. For account of (Applicant) (Complete name and address)
___________________________________________________________________________
B. In favor of (Beneficiary) (Complete name and address)
___________________________________________________________________________
___________________________________________________________________________
C. Amount (specify currency):
___________________________________________________________________________
D. Expiry date:
______________________ at Mellon Bank, One Mellon Bank Center, Pittsburgh.
(See last page if Beneficiary is a foreign bank issuing their guarantee)
___________________________________________________________________________
E. Description of statement or certification and any other documents to be
presented by the Beneficiary, other terms and conditions, and special
instructions.
Indicate any of the following that are applicable:
___ Letter of Credit to be "clean" (no statements, certifications or
documents required to be presented by Beneficiary for payment except
for a sight draft on Mellon Bank)
___ Issue Letter of Credit in accordance with attached form (subject to
approval by Mellon).
___ Incorporate terms and conditions indicated on last page hereof, or
attached.
___________________________________________________________________________
F. In consideration of the establishment of the Credit substantially as
described herein or in the form attached hereto, the terms of which are
hereby approved, the undersigned Applicant agrees to perform in accordance
with and be bound by the terms and conditions set forth on the following
pages hereof and in any attachments hereto.
___________________________________________________________________________
G. The undersigned Applicant agrees to pay Mellon, on demand, any and all
charges and expenses (including, but not limited to, attorneys' fees) paid
or incurred by Mellon in connection with the Credit (whether or not
described on the following pages hereof), interest in accordance with the
terms and conditions on the following pages hereof and the following fees
and commissions for establishing the Credit (plus any customary commission
for any increase, extension, amendment, renewal or partial renewal
thereof):
Issuance fee of $ ________, Standby Letter of Credit Commission of $ ________
or at ____% per annum, other fees as follows:
___________________________________________________________________________
___________________________________________________________________________
If the Beneficiary is outside of the United States, charges and expenses of
foreign Payors shall be paid by __ Beneficiary __ Applicant
___________________________________________________________________________
TERMS AND CONDITIONS
The Applicant (hereinafter called the "Obligor"), agrees as follows:
1. It is acknowledged and agreed that the letter of credit issued pursuant
hereto (which, inclusive of any increase, extension, amendment, renewal
or partial renewal thereof and any guaranty or bond issued by any branch,
affiliate or correspondent of Mellon in reliance on this application and
agreement and/or the Letter of Credit, and hereinafter collectively called
the "Credit") shall constitute an obligation separate from and independent
of any obligations arising out of this Agreement or any contract between
any Obligor and the Beneficiary.
2. Availments under the Credit may be effected through the Payor at the
current buying rate of the Payor for bankers' sight drafts on the place
from which the Payor is to receive reimbursement under the terms of the
Credit, it being understood and further agreed: (a) that the amount(s)
disbursed to the Beneficiary(ies) relative thereto may be in currency
local to the site of the Payor, less any taxes and/or other charges,
whether of the Payor or otherwise, and (b) that an advice of an availment
under the Credit from the Payor shall be sufficient evidence of any
availment under the Credit and such evidence thereof shall be binding upon
the Obligor for the purposes of this Agreement.
3. To pay on demand in United States currency to Mellon, at is office at One
Mellon Bank Center, Pittsburgh, Pennsylvania 15258, U.S.A., the following
sums:
(a) If the Credit is in United States currency, a sum equal to each amount
which shall have been withdrawn or shall purport to have been
withdrawn under the Credit at any time(s) (whether evidenced by any
one or more drafts, receipts, cablegrams or otherwise), plus (i)
interest from the date of such withdrawal at ___% per annum, (ii) any
and all liabilities, charges and expenses (including attorneys' fees)
which Mellon, any confirming or advising bank or Payor may pay, incur
or charge relative to the Credit, and (iii) the commissions described
on the preceding page(s) hereof;
(b) Any and all amounts otherwise payable under or in connection with this
Agreement or the Credit, and
(c) Interest on any and all amounts unpaid hereunder at any time(s) at
___% per annum.
Any and all amounts which may become due and payable to Mellon hereunder
may, in Mellon's discretion, be charged by Mellon against any funds then
held by Mellon for any Obligor's account.
4. The Obligor will promptly examine (a) the copy of the Credit (and any
amendments thereof) sent to the Obligor by Mellon and (b) all instruments
and documents delivered to the Obligor from time to time by Mellon, and
the Obligor will, within twenty-four (24) hours of receipt thereof, notify
Mellon of any irregularity or claim of non-compliance with the Obligor's
instructions. The Obligor will be conclusively deemed to have waived any
such claim against Mellon and Mellon's correspondents unless such notice
is given as aforesaid.
5. The term "Obligations", as used in this Agreement, shall mean (a) all sums
at any time payable to Mellon under or in connection with this Agreement
or the Credit, including those referred to in paragraph 3 above, and (b)
all other covenants, agreements, indebtedness, obligations and liabilities
of any Obligor to Mellon, and all claims of Mellon of any nature and
description against the Obligor, whether or not evidenced by a writing,
whether now existing or hereafter incurred, whether or not under or
related to this Agreement or the Credit or contemplated at the date
hereof, whether originally contracted with the Obligor and/or with another
or others or acquired in any manner by Mellon, whether contracted by one
or more Obligor alone or jointly or severally with another or others, and
whether direct or indirect, absolute or contingent, secured or unsecured,
matured or unmatured.
6. As hereinafter used, the term "Collateral" shall mean all funds, deposit
accounts and other property of the Obligor (including the property listed
in any attachment hereto) and the proceeds and products thereof, now or
hereafter held in any capacity by Mellon or an agent or correspondent of
Mellon, whether such Collateral has been delivered for safe-keeping, in
connection with this Agreement or the Credit or for any other purpose or
reason. To secure the prompt and unconditional payment and performance
of the Obligations, the Obligor grants to and creates in favor of Mellon
a first lien and security interest in the Collateral. Obligor agrees that
Mellon shall have the right to apply toward and set off against the
Obligations at any time, whether or not a Default (as hereinafter defined)
has occurred, any or all of the Collateral and any and all amounts owing
to the Obligor by Mellon. Should the net realizable value of the
Collateral available to Mellon decline or otherwise be insufficient, in
Mellon's sole judgment, to secure Mellon adequately in connection with
Obligations which have arisen or which Mellon expects to arise, then the
Obligor shall, on demand, promptly provide Mellon with such additional
Collateral as Mellon may require.
7. Mellon is hereby irrevocably authorized and empowered (a) for itself and
as attorney-in-fact with power of substitution for the Obligor and in its,
his or her name and in its, his or her behalf, to execute and file
financing statements and mortgages and take such other action as Mellon
may deem necessary or desirable to create, attach, perfect, continue,
preserve, enforce and realize upon Mellon's first lien and security
interest in the Collateral, including, without limitation, the power to
endorse items of Collateral in the name of Obligor; (b) to insure,
maintain, repair, protect and collect the Collateral, and (c) to defend
and preserve the title of the Obligor to the Collateral, and Mellon's
first lien and security interest therein, free and clear from all other
liens, pledges, security interests, mortgages and other encumbrances, and
the Obligor agrees to pay all costs, expenses, liabilities and
obligations, including attorneys' fees and expenses, incurred by Mellon
in taking any action permitted by or incidental to this Agreement or the
Credit, provided, however, that Mellon shall not be obligated to take any
such action and Mellon shall have no liability for any failure, refusal
or delay in taking any such action.
8. Obligors represent, warrant and covenant to Mellon that the following are
and shall remain true, complete and correct: (a) the Collateral will at
all times be free and clear of all liens, pledges, security interests,
mortgages and other encumbrances, except Mellon's first lien and security
interest; (b) this Agreement has been duly and validly executed and
delivered by the Obligors and its execution, delivery and performance have
been authorized by all necessary corporate action, and (c) neither this
Agreement nor the Credit nor any transaction to which this Agreement or
the Credit relates violates or will violate any applicable law or
regulation, including, without limitation, the Export Administration Act
of 1979 and Section 999 of the Internal Revenue code of 1954, both as
amended, and the regulations thereunder, and the provisions of any
successor or supplementary laws and regulations.
9. Mellon may (a) accept and pay drafts or other withdrawals under the Credit
drawn "without recourse"; (b) confirm or advise the Credit through one or
more correspondents or other Payors or directly; (c) honor drafts drawn
under the Credit for less than the maximum aggregate amount of the Credit;
(d) accept or pay, as complying with the terms of the Credit, any drafts
or other withdrawals signed or issued by any administrator, executor,
trustee in bankruptcy, debtor in possession, assignee for benefit of
creditors, liquidator, receiver, successor, assign, agent, attorney in
fact or other representative of any Beneficiary; (e) accept or pay any
draft or other evidence of withdrawal dated on or before the Credit
expiration date, regardless of when drawn and when or whether negotiated,
and (f) accept documents of any character which comply with the
provisions, definitions, interpretations and practices contained in the
Uniform Customs and Practice for Documentary Credits, 1983 Revision,
International Chamber of Commerce Publication No. 400, and any subsequent
revisions thereof approved by a Congress of the International Chamber of
Commerce and adhered to by Mellon.
10. It is agreed that neither Mellon nor any confirming or advising bank nor
any Payor shall be responsible for, and the Obligations shall not be
affected by, (a) the use which may be made of the Credit or any act or
omission of any Beneficiary or assignee of the Credit; (b) any act,
omission, insolvency or failure in business of any confirming or
advising bank or any of Mellon's correspondents, Payors, agents or
subagents; (c) the validity, sufficiency, genuineness or collectibility
of any drafts, instruments, certificates of default, evidences of
withdrawal or other documents, including endorsements and signatures
thereon; (d) any breach of contract between the Obligor and any other
party; (e) compliance with or circumstances resulting from the existence
or enforcement of laws, regulations, rules, customs provisions, foreign
exchange restrictions or other official directives (whether or not
having the force of law but if not the observance of which is reasonable
considering the practice of bankers in the county concerned) issued by
any government, or by any agency or instrumentality thereof, or by any
person (dejure or defacto) exercising such powers; (f) any failure of
drafts or other evidences of withdrawal to bear reference or adequate
reference to the Credit, failure of negotiating banks to comply with
directions of the Obligor or failure of any person to surrender, take up
or forward the Credit or to note thereon any withdrawal thereunder, each
of which requirements Mellon may waive even if included in the Credit;
(g) any errors, omissions, interruptions or delays in transmission or
delivery of any messages, however sent and whether plain or in code or
cipher, or errors in transmission or delivery of any messages, however
sent and whether plain or in code or cipher, or errors in translation or
in interpretation of technical or other terms; (h) force majeure, or any
event, fact or condition beyond the control of Mellon, and (i) without
limiting the foregoing, any act or omission of Mellon or any confirming
or advising bank or any of Mellon's correspondents, Payors, agents or
subagents done or omitted in good faith. Mellon and Payor are expressly
authorized and directed to honor any request for payment which is made
under and in compliance with the Credit without regard to, and without
any duty to inquire into, the existence of any disputes or controversies
between the Obligor, any Beneficiaries or any other person or firm, or
their respective rights, duties or liabilities or whether any fact or
event referred to in any certificate of default or other document
presented under the Credit is true and correct. The sole obligation of
Mellon and Payor to the Obligor is limited to honoring requests for
payment made under and in compliance with the Credit notwithstanding the
fact that Mellon may have assisted Obligor in preparation of the wording
of the Credit or any certificate of default or other document required
to be presented thereunder and/or that Mellon or Payor may otherwise be
aware of facts concerning the transaction which gives rise to the
Credit.
11. The term "Default", as used in this Agreement, shall mean any of the
following: (a) the failure of the Obligor to pay or perform promptly
any part of any Obligation when due or otherwise in accordance with its
terms or the terms of any related agreement, mortgage or other
instrument or document, or the breach or failure of any payment or
performance of any part of any Obligation; (b) the acceleration of any
indebtedness of the Obligor; (c) the death or insolvency of the Obligor;
(d) the commencement or filing by or against the Obligor of any
proceeding or petition for arrangement, reorganization, dissolution or
liquidation or of any proceeding or petition under any law relating to
bankruptcy, insolvency, receivership or the like; (e) any suspension of
the usual business, assignment for the benefit of creditors or meeting
of creditors of the Obligor; (f) any offer or consent to a composition
or extension to the creditors of or appointment of a committee of
creditors or liquidating agent for the Obligor; (g) any failure at any
time of any representation or warranty or information, furnished by the
Obligor to Mellon in any context, to be and remain true, correct and
complete; (h) the breach by the Obligor or the failure of any covenant,
agreement, term or condition under or in connection with this Agreement;
(i) any failure to furnish Mellon such information, and such access to
all its books and records, and copies thereof, as Mellon may reasonably
require; (j) any levy or attachment against any Collateral, and (k) any
event, circumstance, fact or condition, whether or not directly related
to the Obligor, which increases Mellon's credit risk or causes it to
deem itself insecure.
12. Upon the occurrence of a Default, Mellon shall have, in addition to all
other rights and remedies hereunder or under other applicable law, all
the rights and remedies of a secured party under the Pennsylvania
Uniform Commercial Code, and Mellon may, at its option, (a) declare all
or part of the Obligations immediately due and payable, without notice,
demand or presentment, which are hereby waived; (b) reduce its claim to
judgment, foreclose or otherwise enforce its lien and security interest
in all or any part of the Collateral by any judicial procedure or set-
off or other form of or self-help; (c) after reasonable notice (except
in the case of Collateral which is perishable or threatens to decline
speedily in value), which is hereby agreed to mean five days' written
notice, sell or otherwise dispose of all or part of the Collateral at
such places and on such terms and conditions as Mellon may see fit.
Upon demand, the Obligor shall assemble the Collateral at such locations
as Mellon shall designated. The proceeds of any sale, collection or
other disposition of the Collateral shall be applied by Mellon in
payment of the Obligations, including the costs and expenses of the sale
or collection, and as otherwise required by law, and to particular
Obligations and against principal and/or interest in such lawful amounts
as Mellon in its discretion may elect, and any surplus shall be paid to
Obligor, its, his or her successors or assigns, or to whomsoever may be
lawfully entitled to receive the same or as a court of competent
jurisdiction shall determine. Obligor shall remain liable to Mellon for
and shall pay to Mellon any deficiency which may remain after such sale
or collection.
13. Mellon may assign or transfer all or any part of any of the Obligations
and may transfer as security therefor all or any part of the Collateral
and thereafter Mellon shall be fully discharged from all liability and
responsibility with respect to the Collateral so transferred and the
transferee shall be vested with all Mellon's powers and rights hereunder
with respect thereto, but with respect to all Collateral not so
transferred Mellon shall retain all rights and powers hereunder. Mellon
is authorized, at its option and without any obligation to do so, to
transfer to or register in the name of any of its nominees all or any
part of the Collateral, and such action may be taken before or after the
maturity of any part of the Obligations and without notice to the
Obligor.
14. All rights and remedies of Mellon hereunder are cumulative of each other
and of every other right or remedy which Mellon may otherwise have at
law or in equity or under any other contract or other writing for the
enforcement of the security interest herein or the collection of the
Obligations. Without limiting the scope of the foregoing, it is agreed
that this Agreement shall be supplemented by the provisions (to the
extent that such provisions are consistent with the provisions of this
Agreement) of the Uniform Customs and Practice for Documentary Credits,
1983 Revision, International Chamber of Commerce Publication No. 400,
and any subsequent revisions thereof approved by a Congress of the
International Chamber of Commerce and adhered to by Mellon.
15. No delay on the part of Mellon in exercising any right, power or
privilege shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right, power or privilege preclude other or
further exercise thereof or the exercise of any other right, power or
privilege or shall be construed to be a waiver of any Default. No
waiver by Mellon of any Default shall be effective unless in writing and
signed by an authorized officer of Mellon, and no such waiver shall be
deemed to be a waiver of a subsequent Default or be deemed to be a
continuing waiver. No course of dealing between Obligor and Mellon or
its agents or employees shall be effective to change, modify or
discharge any provision of this Agreement or to constitute a waiver of
any Default. Mellon shall not, under any circumstances or in any event
whatsoever, have any liability for any error or omission or delay of any
kind occurring in the liquidation of any Collateral, including the
settlement, collection or payment of any Collateral, or for any damage
resulting therefrom. If any provision of this Agreement is held invalid
or unenforceable to any extent or in any application, the remainder of
this Agreement, or the application of such provision to different
persons or circumstances or in different jurisdictions, shall not be
affected thereby.
16. Obligor agrees to defend, indemnify and hold harmless Mellon, any
confirming or advising bank, and Mellon's correspondents, Payors, agents
and subagents from and against any and all demands, actions, damages,
claims, losses, penalties, liabilities and expenses (including
attorneys' fees and expenses), not involving Mellon's bad faith,
resulting from or incurred, suffered or paid by any of them in
connection with this Agreement, the Credit or any breach or failure of
any representation, warranty, covenant, agreement, term or condition of
this Agreement. At any time that an attorney is used to enforce any
Obligation or this Agreement, the Obligor shall pay Mellon its
reasonable attorneys' fees incurred in such enforcement.
17. In the event of any increase in the amount of the Credit, or the
extension (for one or more periods, whether or not longer than the
original period) of the time for presentation of drafts or for
withdrawals under the Credit, or the renewal or any other modification
of any term of the Credit, at the request of the Obligor, with or
without notice to any other person, this Agreement and Mellon's rights
hereunder shall continue unimpaired and shall be binding upon the
Obligor with respect to the Credit so increased, extended, renewed or
modified and with respect to any action taken by Mellon or any of its
Payors or correspondents in accordance with such increase, extension,
renewal or other modification. If the Credit is to be issued in favor
of any commercial entity which is to issue a commitment in Mellon's
behalf in connection therewith, the Obligor shall remain liable to
Mellon until Mellon is released by such entity.
18. All notices, statements, requests and demands under this Agreement shall
be deemed to have been made when mailed first class, postage prepaid, to
each party at the address appearing in this Agreement or as it may
otherwise direct in writing. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of Pennsylvania.
This Agreement may be changed or modified only by a writing signed by
all parties. This Agreement shall be binding upon and inure to the
benefit of the parties hereto, their respective successors and assigns,
except that the Obligor may not assign any of its, his or her rights or
delegate any of its, his or her duties hereunder without the prior
written consent of Mellon.
MELLONAP.JMA
