AGREEMENT AS TO EXPENSES AND LIABILITIES
Exhibit
4(b)5
THIS
AGREEMENT AS TO EXPENSES AND
LIABILITIES (this “Agreement”) is made as of September 1, 2003, between
Southwestern Electric Power Company, a Delaware corporation (the “Company”), and
SWEPCo Capital Trust I, a Delaware statutory trust (the “Trust”).
WHEREAS,
the Trust intends to issue its
Common Securities (the “Common Securities”) to and receive Junior Subordinated
Debentures from the Company and to issue and sell SWEPCo Capital Trust I
Flexible Trust Preferred Securities (the “Preferred Securities”) with such
powers, preferences and special rights and restrictions as are set forth in
the
Amended and Restated Trust Agreement of the Trust dated as of September 1,
2003
as the same may be amended from time to time (the “Trust Agreement”);
and
WHEREAS,
the Company is the issuer of
the Junior Subordinated Debentures.
NOW,
THEREFORE, in consideration of the
purchase by each holder of the Preferred Securities, which purchase the Company
hereby agrees shall benefit the Company and which purchase the Company
acknowledges will be made in reliance upon the execution and delivery of this
Agreement, the Company and the Trust hereby agree as follows:
ARTICLE
I
Section
1.01.
Guarantee by the Company. Subject to the terms and conditions
hereof, the Company, as obligor of the Junior Subordinated Debentures, hereby
irrevocably and unconditionally guarantees to each person or entity to whom
the
Trust is now or hereafter becomes indebted or liable (the “Beneficiaries”) the
full payment, when and as due, of any and all Obligations (as hereinafter
defined) to such Beneficiaries. As used herein, “Obligations” means
any indebtedness, expenses or liabilities of the Trust, other than obligations
of the Trust to pay to holders of any Preferred Securities or other similar
interests in the Trust the amounts due such holders pursuant to the terms of
the
Preferred Securities or such other similar interests, as the case may
be. This Agreement is intended to be for the benefit of, and to be
enforceable by, all such Beneficiaries, whether or not such Beneficiaries have
received notice hereof.
Section
1.02. Term of Agreement. This Agreement
shall terminate and be of no further force and effect upon the date on which
there are no Beneficiaries remaining; provided, however, that this Agreement
shall continue to be effective or shall be reinstated, as the case may be,
if at
any time any holder of Preferred Securities or any Beneficiary must restore
payment of any sums paid under the Preferred Securities, under any Obligation,
under the Guarantee Agreement dated the date hereof by the Company and The
Bank
of New York, as guarantee trustee, or under this Agreement for any reason
whatsoever. This Agreement is continuing, irrevocable, unconditional
and absolute.
Section
1.03. Waiver of Notice. The Company
hereby waives notice of acceptance of this Agreement and of any Obligation
to
which it applies or may apply, and the Company hereby waives presentment, demand
for payment, protest, notice of nonpayment, notice of dishonor, notice of
redemption and all other notices and demands.
Section
1.04. No Impairment. The obligations,
covenants, agreements and duties of the Company under this Agreement shall
in no
way be affected or impaired by reason of the happening from time to time of
any
of the following:
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(a)
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the
extension of time for the payment by the Trust of all or any portion
of
the Obligations or for the performance of any other obligation under,
arising out of, or in connection with, the
Obligations;
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(b)
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any
failure, omission, delay or lack of diligence on the part of the
Beneficiaries to enforce, assert or exercise any right, privilege,
power
or remedy conferred on the Beneficiaries with respect to the Obligations
or any action on the part of the Trust granting indulgence or extension
of
any kind; or
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(c)
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the
voluntary or involuntary liquidation, dissolution, sale of any collateral,
receivership, insolvency, bankruptcy, assignment for the benefit
of
creditors, reorganization, arrangement, composition or readjustment
of
debt of, or other similar proceedings affecting, the Trust or any
of the
assets of the Trust.
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There
shall be no obligation of the Beneficiaries to give notice to, or obtain the
consent of, the Company with respect to the happening of any of the
foregoing.
Section
1.05. Enforcement. A Beneficiary may
enforce this Agreement directly against the Company and the Company waives
any
right or remedy to require that any action be brought against the Trust or
any
other person or entity before proceeding against the Company.
ARTICLE
II
Section
2.01. Binding Effect. All guarantees
and agreements contained in this Agreement shall bind the successors, assigns,
receivers, trustees and representatives of the Company and shall inure to the
benefit of the Beneficiaries.
Section
2.02. Amendment. So long as there
remains any Beneficiary or any Preferred Securities of any series are
outstanding, this Agreement shall not be modified or amended in any manner
adverse to such Beneficiary or to the holders of the Preferred
Securities.
Section
2.03. Notices. Any notice, request or
other communication required or permitted to be given hereunder shall be given
in writing by delivering the same against receipt therefor by facsimile
transmission (confirmed by mail), telex or by registered or certified mail,
addressed as follows (and if so given, shall be deemed given when mailed or
upon
receipt of an answer-back, if sent by telex), to-wit:
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SWEPCo
Capital Trust I
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x/x
Xxx Xxxx xx Xxx Xxxx
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000
Xxxxxxx Xxxxxx, 0X
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Xxx
Xxxx, Xxx Xxxx 00000
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Facsimile
No.: (000) 000-0000
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Attention: Corporate
Trust Administration
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0
Xxxxxxxxx Xxxxx
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Xxxxxxxx,
Xxxx 00000
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Facsimile
No.: (000) 000-0000
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Attention: Treasurer
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Section
2.04. THIS AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK.
THIS
AGREEMENT is executed as of the
date and year first above written.
By: /s/
Xxxxx X. Xxxxxx
Xxxxx
X. Xxxxxx
Assistant
Treasurer
SWEPCO
CAPITAL TRUST
I
By: /s/
Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
as
Administrative Trustee
