File No. 70-8237
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________________________________
Post-Effective Amendment No. 5 to
FORM U-1
________________________________
APPLICATION OR DECLARATION
under the
PUBLIC UTILITY HOLDING COMPANY ACT OF 1935
* * *
AEP GENERATING COMPANY
1 Riverside Plaza, Columbus, Ohio 43215
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(Name of company filing this statement and
address 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)
* * *
A. A. Pena, Treasurer
AMERICAN ELECTRIC POWER COMPANY, INC.
1 Riverside Plaza, Columbus, Ohio 43215
John F. Di Lorenzo, Jr., Associate General Counsel
AMERICAN ELECTRIC POWER SERVICE CORPORATION
1 Riverside Plaza, Columbus, Ohio 43215
----------------------------------------
(Names and addresses of agents for service)
<PAGE>
The undersigned American Electric Power Company, Inc.,
registered holding company ("AEP"), and AEP Generating Company, a
subsidiary of AEP ("Generating"), hereby amend the Application or
Declaration on Form U-1, as amended, in File No. 70-8237 as
follows:
1. By amending ITEM 1. DESCRIPTION OF PROPOSED TRANSACTION
to restate in its entirety the third paragraph under the
subheading "Discussion" to read as follows:
The consumers are benefitted by the ability of
Generating to declare and pay such dividends because such
payments result in a reduction in equity. This reduction
correspondingly reduces the cost of capital and results in a
reduction in Generating's monthly charge under the unit
power agreements to its wholesale customers.
2. By amending ITEM 2. FEES COMMISSIONS AND EXPENSES to
read as follows:
No fees, commissions or expenses, other than expenses
estimated not to exceed $3,000 to be billed at cost by
American Electric Power Service Corporation, are to be paid
or incurred by Generating or any associate company in
connection with the proposed transaction.
3. By amending ITEM 6. EXHIBITS AND FINANCIAL STATEMENTS
to add the following Exhibit:
Exhibit A Capital Funds Agreement dated as of
December 30, 1988 by and between
American Electric Power Company, Inc.
and AEP Generating Company.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Public Utility Holding
Company Act of 1935, the undersigned companies have duly caused
this Post-Effective Amendment to be signed on their behalf by the
undersigned thereunto duly authorized.
AMERICAN ELECTRIC POWER COMPANY, INC.
AEP GENERATING COMPANY
By:_______/s/_A._A._Pena____________
A. A. Pena
Treasurer
Dated: August 8, 1997
[97FN0015.GEN]
<PAGE>
CAPITAL FUNDS AGREEMENT
This Capital Funds Agreement (hereinafter referred to
as "this Agreement") dated as of December 30, 1988, is made by
and between American Electric Power Company, Inc. ("AEP") and AEP
Generating Company ("AEGCO").
WHEREAS,
A. Indiana Michigan Power Company ("I&M"), a
subsidiary company of AEP under the Public Utility Holding
Company Act of 1935 (the "1935 Act"), is presently constructing
the Rockport Steam Electric Generating Plant at a site along the
Ohio River near the town of Rockport, Indiana, which will consist
of two 1,300,000-kilowatt fossil-fired steam electric generating
units and associated equipment and facilities (the "Rockport
Plant"), the first unit ("Unit No. 1") of which has been placed
in commercial operation and the second unit ("Unit No. 2") of
which is presently expected to be placed in commercial operation
in 1989.
B. AEGCO has entered into an Owners' Agreement dated
as of March 31, 1982, as amended (the "Owners' Agreement"), with
I&M and Kentucky Power Company, another subsidiary company of AEP
under the 1935 Act, pursuant to which AEGCO has acquired a 50%
undivided ownership interest, as tenant in common without right
of partition, in the Rockport Plant, which is being operated as a
part of the interconnected, integrated electric system comprising
the American Electric Power System.
C. AEGCO has agreed to make available to I&M,
pursuant to a Unit Power Agreement dated as of March 31, 1982, as
amended, between AEGCO and I&M, all of the available power (and
the energy associated therewith) to which AEGCO is from time to
time entitled at the Rockport Plant.
D. AEP owns all of the outstanding common stock of
AEGCO, which is a subsidiary company of AEP under the 1935 Act.
E. In connection with the foregoing, AEP and AEGCO
entered into a Capital Funds Agreement dated as of March 31,
1982, as amended (the "Original Capital Funds Agreement"), and
now desire to replace the Original Capital Funds Agreement with
this Agreement.
F. AEGCO and AEP have Joined in an Application-
Declaration on Form U-l, as amended and supplemented to date, in
File No. 70-7584, filed with the Securities and Exchange
Commission (the "SEC") under the 1935 Act with respect to this
Agreement, the SEC has issued an order (the "SEC Order") granting
and permitting to become effective said Application-Declaration,
as so amended and supplemented, and the SEC Order is in full
force and effect on the date of the execution and delivery
hereof.
G. All things necessary to make this Agreement the
valid, legally binding and enforceable obligation of each of the
parties hereto have been done and performed and the execution and
performance hereof in all respects have been authorized and
approved by all corporate and shareholder action necessary on the
parse of each party hereto.
NOW, THEREFORE, in consideration of the terms and
agreements hereinafter set forth, the parties agree with each
other as follows:
ARTICLE I
Obligations of AEP
1.1. Performance under Owners' Agreement. AEGCO shall
(and AEP shall cause AEGCO to) use its best efforts to perform
and observe all of its covenants and agreements under the Owners'
Agreement and, in connection therewith, take all such action,
including, without limitation, all actions before governmental
authorities, as shall be necessary to enable AEGCO to do so.
1.2. Capital Structure of AEGCO. AEP shall supply or
cause to be supplied to AEGCO:
(a) such amounts of capital as may be required from
time to time by AEGCO in order to maintain that portion of
the Capitalization (as defined in Section 1.6. hereof) of
AEGCO as shall be represented by the aggregate of the par
value of, or stated capital represented by, the outstanding
shares of all classes of capital stock and the surplus of
AEGCO paid in, earned and other, if any, at an amount equal
to such percentage of the Capitalization of AEGCO as
governmental regulatory authorities having jurisdiction in
the premises may require; and
(b) such amounts of capital (in addition to the
capital heretofore made available to AEGCO by AEP) as shall
be required in order for AEGCO to provide AEGCO's
proportionate share of the funds required to complete
construction of Unit No. 2, to provide AEGCO's proportionate
share of the funds required for pre-operating expenses for
Unit No. 2, to provide AEGCO's proportionate share of the
funds required to permit the commercial operation of both
Unit No. 1 and Unit No. 2 of the Rockport Plant, to permit
the continuation of such commercial operation after the
commencement of such commercial operation, to enable AEGCO
to perform all of its obligations, covenants and agreements
under the AEGCO Agreements (as defined in Section 1.6
hereof) and to pay in full when due all AEGCO Obligations
(whether due at maturity, pursuant to mandatory or optional
prepayment, by acceleration or otherwise);
it being understood and agreed that, in connection with the
capital requirements of AEGCO, the issuance and sale by AEGCO of
debt securities and, to the extent necessary or desirable,
preferred stock, to banks, institutions and the public shall
constitute one of the means by which required capital can be made
available to AEGCO.
1.3. Manner of Performance. If, with respect to any
amount of capital which AEP shall, at any time in question, be
obligated under the provisions of Section 1.2 to supply or cause
to be supplied to AEGCO, AEP and AEGCO shall fail to agree on the
type, or terms, of any particular security to be issued by AEGCO
and sold to AEP or to others for the purpose of securing such
required capital or if requisite regulatory approvals are not
obtained for any issuance and sale so agreed upon or if such
issuance and sale cannot for any other reason be carried out,
then and in such event, AEP shall supply such capital to AEGCO in
the form of a cash capital contribution.
1.4. Payments in Respect of AEGCO Obligations. If at
any time AEGCO shall require funds to pay any AEGCO Obligation
when due (whether at maturity, pursuant to mandatory or optional
prepayment, by acceleration or otherwise), and the funds of AEGCO
available for such purpose shall be insufficient for any reason,
AEP will pay to AEGCO in cash as a capital contribution the funds
necessary to enable AEGCO to pay such AEGCO Obligation when due.
1.5. Subordination of Claims of AEP Against AEGCO. AEP
hereby agrees that (i) all amounts advanced by AEP to AEGCO
(other than by way of purchases of capital stock of AEGCO or
capital contributions to AEGCO) that AEGCO is obligated to repay
to AEP shall, for the purposes of this Agreement and so long as
this Agreement shall be in full force and effect, constitute
Subordinated Indebtedness of AEGCO (as defined in Section 1.6
hereof) and (ii) no such Subordinated Indebtedness of AEGCO shall
be transferred or assigned (including by way of security) to any
person (other than to a successor of AEP by way of merger or
consolidation or the acquisition by such person of all or
substantially all of AEP's assets). AEGCO agrees that it will
record all Subordinated Indebtedness of AEGCO as such on its
books.
1.6. Definitions. For the purposes of this Agreement,
the following terms shall have the following meanings:
(a) the term "AEGCO Agreements" shall mean all loan
agreements, credit agreements, security agreements,
mortgages, reimbursement agreements, indemnity agreements,
leases and related documents to which AEGCO is presently, or
at any time hereafter becomes, a party, and all shares of
preferred stock hereafter issued by AEGCO and held by
persons other than AEP;
(b) the term "AEGCO Obligations" shall mean all
indebtedness, obligations and liabilities of AEGCO under the
AEGCO Agreements, other than indebtedness, obligations or
liabilities owing to AEP;
(c) the term "Capitalization" shall mean, as of any
particular time, an amount equal to the sum of (x) the total
principal amount of all Indebtedness for Borrowed Money of
AEGCO, secured or unsecured, then outstanding (whether or
not such indebtedness matures, pursuant to the instrument by
which such indebtedness shall be created or incurred, within
twelve months after such particular time), but excluding
short-term debt having a maturity when issued of less than
twelve months, and (y) the aggregate of the-par value of, or
stated capital represented by, the outstanding shares of all
classes of capital stock of AEGCO and the surplus of AEGCO,
paid in, earned and other, if any;
(d) the term "Indebtedness for Borrowed Money" shall
mean the principal amount of, premium (if any) and interest
on all indebtedness for borrowed money of AEGCO then
outstanding;
(e) the term "Subordinated Indebtedness of AEGCO"
shall mean indebtedness marked (or required to be marked
pursuant to Section 1.5 hereof) on the books of AEGCO as
subordinated and junior in right of payment to the AEGCO
Obligations, to the extent and in the manner set forth
below:
(i) if there shall occur an Event of Default
under and as defined in any AEGCO Agreement, then so
long as such Event of Default shall be continuing and
shall not have been cured or waived, or unless and
until all AEGCO Obligations shall have been paid in
full in money or moneys worth at the time of receipt,
no payment of principal and premium, if any, or
interest shall be made upon Subordinated Indebtedness
of AEGCO; and
(ii) in the event of any insolvency, bankruptcy,
liquidation, reorganization or other similar
proceedings, or any receivership proceedings in
connection therewith, relative to AEGCO or its
property, and in the event of any proceedings for
voluntary liquidation, dissolution or other winding up
of AEGCO, whether or not involving insolvency or
bankruptcy proceedings, then all AEGCO Obligations
shall first be paid in full in money or moneys worth at
the time of receipt, or payment thereof shall have been
provided for, before any payment on account of
principal, premium, if any, or interest is made upon
Subordinated Indebtedness of AEGCO.
ARTICLE II
Nature of the Obligations of AEP
2.1. Regulatory Approvals. Except as provided in
Section 2.2 with respect to the obligations of AEP to make cash
capital contributions to AEGCO pursuant to the provisions of
Sections 1.3 and 1.4 (as to which the SEC Order is in full force
and effect at the date of execution and delivery of this
Agreement), the performance of the obligations of AEP hereunder
shall be subject to the receipt and continued effectiveness of
all authorizations of governmental regulatory authorities
necessary at the time to permit AEP at the time to perform its
duties and obligations then to be performed hereunder, including
the receipt and continued effectiveness of all authorizations of
governmental authorities necessary at the time to permit AEP at
the time to supply or cause to be supplied to AEGCO capital
pursuant to the provisions of Section 1.2 or to permit AEP at the
time to acquire securities issued and sold to AEP by AEGCO. AEP
shall use its best efforts to secure and maintain all such
authorizations of governmental regulatory authorities.
2.2. Nature of Obligations.
(a) The obligations of AEP hereunder to make cash
capital contributions to AEGCO pursuant to the provisions of
Sections 1.3 and 1.4 having heretofore been authorized by
the SEC Order (and no other authorization by any
governmental regulatory authority being required), AEP
agrees that its duty to perform such obligations shall be
absolute and unconditional. Subject to Section 2.1, all
other obligations of AEP hereunder are similarly absolute
and unconditional.
(b) In the event that AEP shall cease to own, directly
or indirectly, at least a majority of the shares of common
stock of AEGCO, the obligations of AEP hereunder shall not
be increased by any amendment to or modification of the
terms and provisions of any AEGCO Agreement unless AEP shall
have consented in writing to such amendment or modification.
2.3. Waivers of Defenses. The obligations of AEP under
Sections 1.2, 1.3 and 1.4 to supply capital or cause capital to
be supplied or to make cash capital contributions to AEGCO shall
not be subject to any abatement, reduction, limitation,
impairment, termination, set-off, defense, counterclaim or
recoupment whatsoever or any right to any thereof (including, but
not limited to, abatements, reductions, limitations, impairments,
terminations, set-offs, defenses, counterclaims and recoupments
for or on account of any past, present or future indebtedness of
AEGCO to AEP or any claim by AEP against AEGCO, whether or not
arising under this Agreement and whether or not arising out of
any action or nonaction on the part of AEGCO or any party to any
AEGCO Agreement, including requirements of governmental
authorities, actions of judicial receivers or trustees or
otherwise and whether or not arising from wilful or negligent
acts or omissions). The foregoing, however, shall not, subject
to the provisions of Section 1.5 hereof, affect in any other way
any rights and remedies of AEP with respect to any amounts owed
to AEP by AEGCO or any such claim by AEP against AEGCO. The
obligations and liabilities of AEP hereunder shall not be
released, discharged or in any way affected by any
reorganization, arrangement, compromise, composition or plan
affecting AEGCO or any change, waiver, extension, indulgence or
other action or omission in respect of any indebtedness or
obligation of AEGCO or AEP, whether or not AEGCO or AEP shall
have had any notice or knowledge of any of the foregoing.
Neither failure nor delay by AEGCO, or by any party to an AEGCO
Agreement, to exercise any right or remedy provided herein or by
statute or at law or in equity shall operate as a waiver thereof,
nor shall any single or partial exercise of any such right or
remedy preclude any other or further exercise thereof, or the
exercise of any other right or remedy. AEP also hereby
irrevocably waives, to the extent that it may do so under
applicable law, any defense based on the adequacy of a remedy at
law which may be asserted as a bar to the remedy of specific
performance in any action brought against AEP for specific
performance of this Agreement by AEGCO or by a receiver or
trustee appointed for AEGCO or in respect of all or a substantial
part of AEGCO's assets under the bankruptcy or insolvency law of
any jurisdiction to which AEGCO is or its assets are subject.
Anything in this Section 2.3 to the contrary notwithstanding, AEP
shall not be precluded from asserting as a defense against any
claim made against AEP upon any of its obligations hereunder that
it has fully performed such obligation in accordance with the
terms of this Agreement.
2.4. Subrogation, Etc. AEP shall, subject to the
provisions of Section 1.5, be subrogated to all rights against
AEGCO of the persons to whom AEGCO Obligations are owed in
respect of any amounts paid by AEP pursuant to the provisions of
this Agreement and applied to the payment of AEGCO Obligations.
ARTICLE III
Term
This Agreement shall remain in full force and effect
until, and shall terminate and be of no further force and effect
after, all AEGCO Obligations have been paid in full.
ARTICLE IV
Assignment
Neither this Agreement nor any interest herein may be
assigned, transferred or encumbered by AEP except that in the
event that AEP shall consolidate with or merge with or into
another corporation or shall transfer to another corporation or
other person all or substantially all of its assets, this
Agreement shall be transferred by AEP to and shall be binding
upon the corporation resulting from such consolidation or merger
or the corporation or other person to which such transfer is
made, and AEP shall cause such corporation or other person to
deliver to AEGCO a written assumption, in form and substance
satisfactory to AEGCO, of AEP's obligations and liabilities under
this Agreement and an opinion of counsel to the effect that such
instrument complies with the requirements hereof and constitutes
a valid, legally binding and enforceable obligation of such
corporation or other person.
Neither this Agreement nor any interest herein may be
assigned, transferred or encumbered by AEGCO without the prior
written consent of AEP.
Any purported assignment, transfer or encumbrance of
this Agreement or any interest herein in violation of the
foregoing provisions of this Article IV shall be void.
ARTICLE V
Termination of Original
Capital Funds Agreement
This Agreement is being entered into in substitution
for, and replacement of, the Original Capital Funds Agreement,
and upon the execution and delivery hereof by AEP and AEGCO the
Original Capital Funds Agreement shall be terminated.
ARTICLE VI
Amendments
This Agreement may not be amended, waived, modified,
discharged or otherwise changed orally. It may be amended,
waived, modified, discharged or otherwise changed only by a
written instrument which has been signed by AEGCO and AEP.
ARTICLE VII
Notices
7.1. Notices, etc., in Writing. All notices, consents,
requests and other documents authorized or permitted to be given
pursuant to this Agreement shall be given in writing and either
personally served on the party to whom (or an officer of a
corporate party) it is given or mailed by registered or certified
first-class mail, postage prepaid, or sent by telex, telegram or
telecopy, addressed as follows:
American Electric Power Company, Inc.
1 Riverside Plaza
Columbus, Ohio 43215
Attn: Financial Vice President
AEP Generating Company
1 Riverside Plaza
Columbus, Ohio 43215
Attn: Financial Vice President
7.2. Notices, consents, requests and other documents
shall be deemed given or served or submitted when delivered or,
if mailed as provided in Section 7.1 hereof, on the third day
after the day of mailing, or if sent by telex or telegram, 24
hours after the time of dispatch. A party may change its address
for the receipt of notices, consents, requests and other
documents at any time by giving notice thereof to the other
parties. Any notice, consent, request or other document given
hereunder may be signed on behalf of either party by any duly
authorized representative of that party.
ARTICLE VIII
Severability
If any provision or provisions of this Agreement shall be
held to be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
ARTICLE IX
Governing Law
This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
ARTICLE X
Succession
Subject to Article IV hereof, this Agreement shall be
binding upon and inure to the benefit of the parties hereto and
their respective successors and assigns, but no assignment
hereof, or of any right to any funds due or to become due under
this Agreement, shall in any event relieve AEGCO or AEP of their
respective obligations hereunder.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective officers
thereunto duly authorized as of the day and year first above
written.
AMERICAN ELECTRIC POWER COMPANY,
INC.
By: /s/ G. P. MALONEY
----------------------------
Title: Vice President
AEP GENERATING COMPANY
By: /s/ D. H. WILLIAMS, JR.
-----------------------------
Title: Vice President
