SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report: April 8, 2003
(Date of earliest event reported)
Commission Registrant; State of Incorporation; I.R.S. Employer
File Number Address; and Telephone Number Identification No.
1-3146 SOUTHWESTERN ELECTRIC POWER COMPANY 72-0323455
(A Delaware Corporation)
1 Riverside Plaza
Columbus, Ohio 43215
Telephone (614) 223-1000
Item 5. Other Events and Regulation FD Disclosure.
On April 8, 2003, Southwestern Electric Power Company (the "Company") entered
into an Underwriting Agreement with Banc of America Securities LLC and J.P.
Morgan Securities Inc., as representatives of the underwriters named therein,
relating to the offering and sale by the Company of $100,000,000 of its 5.375%
Senior Notes, Series C, due 2015 (the "Notes").
Item 7. Financial Statements and Exhibits
(c) Exhibits
1(a) Underwriting Agreement, dated April 8, 2003, between the Company and
Banc of America Securities LLC and J.P. Morgan Securities Inc., as
representatives of the several underwriters named in Exhibit 1 thereto,
in connection with the sale of the Notes.
4(a) Third Supplemental Indenture, between the Company and The Bank of New
York, as trustee, dated April 11, 2003, establishing the terms of the
Notes.
4(b) Form of the Notes (included in Exhibit 4(a) hereto).
5(a) Opinion of Simpson Thacher & Bartlett regarding the legality of the
Notes.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
SOUTHWESTERN ELECTRIC POWER COMPANY
By:/s/ Thomas G. Berkemeyer
Assistant Secretary
April 11, 2003
EXHIBIT INDEX
Exhibit Number Description
1(a) Underwriting Agreement, dated April 8, 2003, between the
Company and Banc of America Securities LLC and J.P. Morgan
Securities Inc., as representatives of the several
underwriters named in Exhibit 1 thereto, in connection with
the sale of the Notes.
4(a) Third Supplemental Indenture, between the Company and The
Bank of New York, as trustee, dated April 11, 2003,
establishing the terms of the Notes.
4(b) Form of the Notes (included in Exhibit 4(a) hereto).
5(a) Opinion of Simpson Thacher & Bartlett regarding the
legality of the Notes.
Exhibit 1(a)
SOUTHWESTERN ELECTRIC POWER COMPANY
Underwriting Agreement
Dated April 8, 2003
AGREEMENT made between SOUTHWESTERN ELECTRIC POWER COMPANY, a corporation
organized and existing under the laws of the State of Delaware (the Company),
and the several persons, firms and corporations (the Underwriters) named in
Exhibit 1 hereto.
WITNESSETH:
WHEREAS, the Company proposes to issue and sell $100,000,000 aggregate
principal amount of its 5.375% Senior Notes, Series C, due 2015 (the Senior
Notes) to be issued pursuant to the Indenture dated as of February 25, 2000,
between the Company and The Bank of New York, as trustee (the Trustee), as
heretofore supplemented and amended and as to be further supplemented and
amended (said Indenture as so supplemented being hereafter referred to as the
Indenture); and
WHEREAS, the Underwriters have designated the persons signing this
Agreement (collectively, the Representative) to execute this Agreement on behalf
of the respective Underwriters and to act for the respective Underwriters in the
manner provided in this Agreement; and
WHEREAS, the Company has prepared and filed, in accordance with the
provisions of the Securities Act of 1933 (the Act), with the Securities and
Exchange Commission (the Commission), registration statement (File No.
333-100632) and a prospectus relating to $100,000,000 aggregate principal amount
of its Unsecured Notes and such registration statement has become effective; and
WHEREAS, such registration statement, including the financial statements,
the documents incorporated or deemed incorporated therein by reference, and the
exhibits thereto, being herein called the Registration Statement, and the
prospectus, including the documents incorporated or deemed incorporated therein
by reference, constituting a part of such Registration Statement, as it may be
last amended or supplemented prior to the effectiveness of this Agreement, but
excluding any amendment or supplement relating solely to securities other than
the Senior Notes, being herein called the Basic Prospectus, and the Basic
Prospectus, as supplemented by a final prospectus supplement (the Prospectus
Supplement) to include information relating to the Senior Notes, including the
names of the Underwriters, the price and terms of the offering, the interest
rate, maturity date and certain other information relating to the Senior Notes,
which will be filed with the Commission pursuant to Rule 424(b) of the
Commission's General Rules and Regulations under the Act (the Rules), including
all documents then incorporated or deemed to have been incorporated therein by
reference, being herein called the Prospectus.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, it is agreed between the parties as follows:
1. Purchase and Sale: Upon the basis of the warranties and representations
and on the terms and subject to the conditions herein set forth, the Company
agrees to sell to the respective Underwriters named in Exhibit 1 hereto,
severally and not jointly, and the respective Underwriters, severally and not
jointly, agree to purchase from the Company, the respective principal amounts of
the Senior Notes set opposite their names in Exhibit 1 hereto, together
aggregating all of the Senior Notes, at a price equal to 99.228% of the
principal amount thereof.
2. Payment and Delivery: Payment for the Senior Notes shall be made to the
Company in immediately available funds or in such other manner as the Company
and the Representative shall mutually agree upon in writing, upon the delivery
of the Senior Notes to the Representative for the respective accounts of the
Underwriters against receipt therefor signed by the Representative on behalf of
itself and for the other Underwriters. Such delivery shall be made at 10:00
A.M., New York Time, on April 11, 2003 (or on such later business day, not more
than five business days subsequent to such day, as may be mutually agreed upon
by the Company and the Underwriters), unless postponed in accordance with the
provisions of Section 8 hereof, at the office of Simpson Thacher & Bartlett, 425
Lexington Avenue, New York, New York 10017, or at such other place as the
Company and the Representative shall mutually agree in writing. The time at
which payment and delivery are to be made is herein called the Time of Purchase.
The delivery of the Senior Notes shall be made in fully registered form,
registered in the name of CEDE & CO., to the offices of The Depository Trust
Company in New York, New York and the Underwriters shall accept such delivery.
3. Conditions of Underwriters' Obligations: The several obligations of the
Underwriters hereunder are subject to the accuracy of the warranties and
representations on the part of the Company on the date hereof and at the Time of
Purchase and to the following other conditions:
(a) That all legal proceedings to be taken and all legal opinions to
be rendered in connection with the issue and sale of the Senior
Notes shall be satisfactory in form and substance to Dewey
Ballantine LLP, counsel to the Underwriters.
(b) That, at the Time of Purchase, the Representative shall be
furnished with the following opinions, dated the day of the Time
of Purchase, with conformed copies or signed counterparts
thereof for the other Underwriters, with such changes therein as
may be agreed upon by the Company and the Representative with
the approval of Dewey Ballantine LLP, counsel to the
Underwriters:
(1) Opinion of Simpson Thacher & Bartlett and either of Thomas
G. Berkemeyer, Esq. or Ann B. Graf, Esq., counsel to the
Company, substantially in the forms heretofore previously
provided to the Underwriters; and
(2) Opinion of Dewey Ballantine LLP, counsel to the
Underwriters, substantially in the form heretofore
previously provided to the Underwriters.
(c) That the Representative shall have received a letter from
Deloitte & Touche LLP in form and substance satisfactory to the
Representative, (i) confirming that they are independent
certified public accountants within the meaning of the Act and
the applicable published rules and regulations of the Commission
thereunder, (ii) stating that in their opinion the financial
statements audited by them and included or incorporated by
reference in the Registration Statement complied as to form in
all material respects with the then applicable accounting
requirements of the Commission, including the applicable
published rules and regulations of the Commission and (iii)
covering as of a date not more than five business days prior to
the day of the Time of Purchase such other matters as the
Representative reasonably requests.
(d) That no amendment to the Registration Statement and that no
prospectus or prospectus supplement of the Company (other than
the prospectus or amendments, prospectuses or prospectus
supplements relating solely to securities other than the Senior
Notes) relating to the Senior Notes and no document which would
be deemed incorporated in the Prospectus by reference filed
subsequent to the date hereof and prior to the Time of Purchase
shall contain material information substantially different from
that contained in the Registration Statement which is
unsatisfactory in substance to the Representative or
unsatisfactory in form to Dewey Ballantine LLP, counsel to the
Underwriters.
(e) That, at the Time of Purchase, an appropriate order of the
Commission under the Public Utility Holding Company Act of 1935,
as amended (the 1935 Act), necessary to permit the sale of the
Senior Notes to the Underwriters, shall be in effect; and that,
prior to the Time of Purchase, no stop order with respect to the
effectiveness of the Registration Statement shall have been
issued under the Act by the Commission or proceedings therefor
initiated.
(f) That, from the date hereof to the Time of Purchase, there shall
not have been any material adverse change in the business,
properties or financial condition of the Company from that set
forth in the Prospectus (other than changes referred to in or
contemplated by the Prospectus), and that the Company shall, at
the Time of Purchase, have delivered to the Representative a
certificate of an executive officer of the Company to the effect
that, to the best of his knowledge, information and belief,
there has been no such change.
(g) That the Company shall have performed such of its obligations
under this Agreement as are to be performed at or before the
Time of Purchase by the terms hereof.
4. Certain Covenants of the Company: In further consideration of the
agreements of the Underwriters herein contained, the Company covenants as
follows:
(a) As soon as practicable, and in any event within the time
prescribed by Rule 424 under the Act, to file the Prospectus
with the Commission; as soon as the Company is advised thereof,
to advise the Representative and confirm the advice in writing
of any request made by the Commission for amendments to the
Registration Statement or Prospectus or for additional
information with respect thereto or of the entry of a stop order
suspending the effectiveness of the Registration Statement or of
the initiation or threat of any proceedings for that purpose
and, if such a stop order should be entered by the Commission,
to make every reasonable effort to obtain the prompt lifting or
removal thereof.
(b) To deliver to the Underwriters, without charge, as soon as
practicable (and in any event within 24 hours after the date
hereof), and from time to time thereafter during such period of
time (not exceeding nine months) after the date hereof as they
are required by law to deliver a prospectus, as many copies of
the Prospectus (as supplemented or amended if the Company shall
have made any supplements or amendments thereto, other than
supplements or amendments relating solely to securities other
than the Senior Notes) as the Representative may reasonably
request; and in case any Underwriter is required to deliver a
prospectus after the expiration of nine months after the date
hereof, to furnish to any Underwriter, upon request, at the
expense of such Underwriter, a reasonable quantity of a
supplemental prospectus or of supplements to the Prospectus
complying with Section 10(a)(3) of the Act.
(c) To furnish to the Representative a copy, certified by the
Secretary or an Assistant Secretary of the Company, of the
Registration Statement as initially filed with the Commission
and of all amendments thereto (exclusive of exhibits), other
than amendments relating solely to securities other than the
Senior Notes and, upon request, to furnish to the Representative
sufficient plain copies thereof (exclusive of exhibits) for
distribution to the other Underwriters.
(d) For such period of time (not exceeding nine months) after the
date hereof as they are required by law to deliver a prospectus,
if any event shall have occurred as a result of which it is
necessary to amend or supplement the Prospectus in order to make
the statements therein, in the light of the circumstances when
the Prospectus is delivered to a purchaser, not contain any
untrue statement of a material fact or not omit to state any
material fact required to be stated therein or necessary in
order to make the statements therein not misleading, forthwith
to prepare and furnish, at its own expense, to the Underwriters
and to dealers (whose names and addresses will be furnished to
the Company by the Representative) to whom principal amounts of
the Senior Notes may have been sold by the Representative for
the accounts of the Underwriters and, upon request, to any other
dealers making such request, copies of such amendments to the
Prospectus or supplements to the Prospectus.
(e) As soon as practicable, the Company will make generally
available to its security holders and to the Underwriters an
earnings statement or statement of the Company and its
subsidiaries which will satisfy the provisions of Section 11(a)
of the Act and Rule 158 under the Act.
(f) To use its best efforts to qualify the Senior Notes for offer
and sale under the securities or "blue sky" laws of such
jurisdictions as the Representative may designate within six
months after the date hereof and itself to pay, or to reimburse
the Underwriters and their counsel for, reasonable filing fees
and expenses in connection therewith in an amount not exceeding
$3,500 in the aggregate (including filing fees and expenses paid
and incurred prior to the effective date hereof), provided,
however, that the Company shall not be required to qualify as a
foreign corporation or to file a consent to service of process
or to file annual reports or to comply with any other
requirements deemed by the Company to be unduly burdensome.
(g) To pay all expenses, fees and taxes (other than transfer taxes
on resales of the Senior Notes by the respective Underwriters)
in connection with the issuance and delivery of the Senior
Notes, except that the Company shall be required to pay the fees
and disbursements (other than disbursements referred to in
paragraph (f) of this Section 4) of Dewey Ballantine LLP,
counsel to the Underwriters, only in the events provided in
paragraph (h) of this Section 4 and paragraph (a) of Section 7,
the Underwriters hereby agreeing to pay such fees and
disbursements in any other event.
(h) If the Underwriters shall not take up and pay for the Senior
Notes due to the failure of the Company to comply with any of
the conditions specified in Section 3 hereof, or, if this
Agreement shall be terminated in accordance with the provisions
of Section 8 or 9 hereof, to pay the fees and disbursements of
Dewey Ballantine LLP, counsel to the Underwriters, and, if the
Underwriters shall not take up and pay for the Senior Notes due
to the failure of the Company to comply with any of the
conditions specified in Section 3 hereof, to reimburse the
Underwriters for their reasonable out-of-pocket expenses, in an
aggregate amount not exceeding a total of $10,000, incurred in
connection with the financing contemplated by this Agreement.
(i) During the period from the date hereof and continuing to and
including the earlier of (i) the date which is after the Time of
Purchase on which the distribution of the Senior Notes ceases,
as determined by the Representative in its sole discretion, and
(ii) the date which is 30 days after the Time of Purchase, the
Company agrees not to offer, sell, contract to sell or otherwise
dispose of any Senior Notes of the Company or any substantially
similar securities of the Company without the consent of the
Representative.
5. Warranties of the Company: The Company represents and warrants to, and
agrees with you, as set forth below:
(a) the Registration Statement on its effective date complied, with
the applicable provisions of the Act and the rules and
regulations of the Commission and the Registration Statement at
its effective date did not, and at the Time of Purchase will
not, contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary
to make the statements therein not misleading, and the Basic
Prospectus on the date of this Agreement and the Prospectus when
first filed in accordance with Rule 424(b) complies, and at the
Time of Purchase the Prospectus will comply, with the applicable
provisions of the Act and the Trust Indenture Act of 1939, as
amended, and the rules and regulations of the Commission, the
Basic Prospectus on the date of this Agreement and the
Prospectus when first filed in accordance with Rule 424(b) under
the Act do not, and the Prospectus at the Time of Purchase will
not, contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary
to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except
that the Company makes no warranty or representation to the
Underwriters with respect to any statements or omissions made in
the Registration Statement, the Basic Prospectus or the
Prospectus in reliance upon and in conformity with information
furnished in writing to the Company by, or through the
Representative on behalf of, any Underwriter expressly for use
in the Registration Statement, the Basic Prospectus or
Prospectus, or to any statements in or omissions from that part
of the Registration Statement that shall constitute the
Statement of Eligibility under the Trust Indenture Act of 1939
of any indenture trustee under an indenture of the Company.
(b) As of the Time of Purchase, the Indenture will have been duly
authorized by the Company and duly qualified under the Trust
Indenture Act of 1939, as amended, and, when executed and
delivered by the Trustee and the Company, will constitute a
legal, valid and binding instrument enforceable against the
Company in accordance with its terms and such Senior Notes will
have been duly authorized, executed, authenticated and, when
paid for by the purchasers thereof, will constitute legal, valid
and binding obligations of the Company entitled to the benefits
of the Indenture, except as the enforceability thereof may be
limited by bankruptcy, insolvency, or other similar laws
affecting the enforcement of creditors' rights in general, and
except as the availability of the remedy of specific performance
is subject to general principles of equity (regardless of
whether such remedy is sought in a proceeding in equity or at
law), and by an implied covenant of good faith and fair dealing.
(c) The documents incorporated by reference in the Registration
Statement or Prospectus, when they were filed with the
Commission, complied in all material respects with the
applicable provisions of the 1934 Act and the rules and
regulations of the Commission thereunder, and as of such time of
filing, when read together with the Prospectus, none of such
documents contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein
or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(d) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, except as
otherwise referred to or contemplated therein, there has been no
material adverse change in the business, properties or financial
condition of the Company.
(e) This Agreement has been duly authorized, executed and delivered
by the Company.
(f) The consummation by the Company of the transactions contemplated
herein is not in violation of its charter or bylaws, will not
result in the violation of any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government,
government instrumentality or court having jurisdiction over the
Company or its properties, and will not conflict with, or result
in a breach of any of the terms or provisions of, or constitute
a default under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the
Company under any contract, indenture, mortgage, loan agreement,
note, lease or other agreement or instrument to which the
Company is a party or by which it may be bound or to which any
of its properties may be subject (except for conflicts, breaches
or defaults which would not, individually or in the aggregate,
be materially adverse to the Company or materially adverse to
the transactions contemplated by this Agreement.)
(g) No authorization, approval, consent or order of any court or
governmental authority or agency is necessary in connection with
the issuance and sale by the Company of the Senior Notes or the
transactions by the Company contemplated in this Agreement,
except (A) such as may be required under the 1933 Act or the
rules and regulations thereunder; (B) such as may be required
under the 1935 Act; (C) the qualification of the Indenture under
the 1939 Act; and (D) such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws.
(h) The consolidated financial statements of the Company and its
consolidated subsidiaries together with the notes thereto,
included or incorporated by reference in the Prospectus present
fairly the financial position of the Company at the dates or for
the periods indicated; said consolidated financial statements
have been prepared in accordance with United States generally
accepted accounting principles applied, apart from
reclassifications disclosed therein, on a consistent basis
throughout the periods involved; and the selected consolidated
financial information of the Company included in the Prospectus
presents fairly the information shown therein and has been
compiled, apart from reclassifications disclosed therein, on a
basis consistent with that of the audited financial statements
of the Company included or incorporated by reference in the
Prospectus.
(i) There is no pending action, suit, investigation, litigation or
proceeding, including, without limitation, any environmental
action, affecting the Company before any court, governmental
agency or arbitration that is reasonably likely to have a
material adverse effect on the business, properties, financial
condition or results of operations of the Company, except as
disclosed in the Prospectus.
The Company's covenants, warranties and representations contained in this
Agreement shall remain in full force and effect regardless of any investigation
made by or on behalf of any person, and shall survive the delivery of and
payment for the Senior Notes hereunder.
6. Warranties of Underwriters: Each Underwriter warrants and represents
that the information furnished in writing to the Company through the
Representative for use in the Registration Statement, in the Basic Prospectus,
in the Prospectus, or in the Prospectus as amended or supplemented is correct as
to such Underwriter. The warranties and representations of such Underwriter
contained in this Agreement shall remain in full force and effect regardless of
any investigation made by or on behalf of the Company or other person, and shall
survive the delivery of and payment for the Senior Notes hereunder.
7. Indemnification and Contribution:
(a) To the extent permitted by law, the Company agrees to indemnify
and hold you harmless, your officers and directors and each
person, if any, who controls you within the meaning of Section
15 of the Act, against any and all losses, claims, damages or
liabilities, joint or several, to which you, they or any of you
or them may become subject under the Act or otherwise, and to
reimburse you and such controlling person or persons, if any,
for any legal or other expenses incurred by you or them in
connection with defending any action, insofar as such losses,
claims, damages, liabilities or actions arise out of or are
based upon any alleged untrue statement or untrue statement of a
material fact contained in the Registration Statement, in the
Basic Prospectus (if used prior to the effective date of this
Agreement), or in the Prospectus, or if the Company shall
furnish or cause to be furnished to you any amendments or any
supplements to the Prospectus, in the Prospectus as so amended
or supplemented except to the extent that such amendments or
supplements relate solely to securities other than the Senior
Notes (provided that if such Prospectus or such Prospectus, as
amended or supplemented, is used after the period of time
referred to in Section 4(b) hereof, it shall contain such
amendments or supplements as the Company deems necessary to
comply with Section 10(a) of the Act), or arise out of or are
based upon any alleged omission or omission to state therein a
material fact required to be stated therein or necessary to make
the statements therein not misleading, except insofar as such
losses, claims, damages, liabilities or actions arise out of or
are based upon any such alleged untrue statement or omission, or
untrue statement or omission which was made in the Registration
Statement, in the Basic Prospectus or in the Prospectus, or in
the Prospectus as so amended or supplemented, in reliance upon
and in conformity with information furnished in writing to the
Company by or through the Representative expressly for use
therein or with any statements in or omissions from that part of
the Registration Statement that shall constitute the Statement
of Eligibility under the Trust Indenture Act of any indenture
trustee under an indenture of the Company, and except that this
indemnity shall not inure to your benefit (or of any person
controlling you) on account of any losses, claims, damages,
liabilities or actions arising from the sale of the Senior Notes
to any person if such loss arises from the fact that a copy of
the Prospectus, as the same may then be supplemented or amended
to the extent such Prospectus was provided to you by the Company
(excluding, however, any document then incorporated or deemed
incorporated therein by reference), was not sent or given by you
to such person with or prior to the written confirmation of the
sale involved and the alleged omission or alleged untrue
statement or omission or untrue statement was corrected in the
Prospectus as supplemented or amended at the time of such
confirmation, and such Prospectus, as amended or supplemented,
was timely delivered to you by the Company. You agree promptly
after the receipt by you of written notice of the commencement
of any action in respect to which indemnity from the Company on
account of its agreement contained in this Section 7(a) may be
sought by you, or by any person controlling you, to notify the
Company in writing of the commencement thereof, but your
omission so to notify the Company of any such action shall not
release the Company from any liability which it may have to you
or to such controlling person otherwise than on account of the
indemnity agreement contained in this Section 7(a). In case any
such action shall be brought against you or any such person
controlling you and you shall notify the Company of the
commencement thereof, as above provided, the Company shall be
entitled to participate in, and, to the extent that it shall
wish, including the selection of counsel (such counsel to be
reasonably acceptable to the indemnified party), to direct the
defense thereof at its own expense. In case the Company elects
to direct such defense and select such counsel (hereinafter,
Company's counsel), you or any controlling person shall have the
right to employ your own counsel, but, in any such case, the
fees and expenses of such counsel shall be at your expense
unless (i) the Company has agreed in writing to pay such fees
and expenses or (ii) the named parties to any such action
(including any impleaded parties) include both you or any
controlling person and the Company and you or any controlling
person shall have been advised by your counsel that a conflict
of interest between the Company and you or any controlling
person may arise (and the Company's counsel shall have concurred
in good faith with such advice) and for this reason it is not
desirable for the Company's counsel to represent both the
indemnifying party and the indemnified party (it being
understood, however, that the Company shall not, in connection
with any one such action or separate but substantially similar
or related actions in the same jurisdiction arising out of the
same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of
attorneys for you or any controlling person (plus any local
counsel retained by you or any controlling person in their
reasonable judgment), which firm (or firms) shall be designated
in writing by you or any controlling person).
(b) Each Underwriter agrees, to the extent permitted by law,
severally and not jointly, to indemnify, hold harmless and
reimburse the Company, its directors and such of its officers
as shall have signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of
Section 15 of the Act, to the same extent and upon the same
terms as the indemnity agreement of the Company set forth in
Section 7(a) hereof, but only with respect to untrue statements
or alleged untrue statements or omissions or alleged omissions
made in the Registration Statement, or in the Basic Prospectus,
or in the Prospectus, or in the Prospectus as so amended or
supplemented, in reliance upon and in conformity with
information furnished in writing to the Company by the
Representative on behalf of such Underwriter expressly for use
therein. The Company agrees promptly after the receipt by it
of written notice of the commencement of any action in respect
to which indemnity from you on account of your agreement
contained in this Section 7(b) may be sought by the Company,
or by any person controlling the Company, to notify you in
writing of the commencement thereof, but the Company's
omission so to notify you of any such action shall not
release you from any liability which you may have to the
Company or to such controlling person otherwise than on account
of the indemnity agreement contained in this Section 7(b).
(c) If recovery is not available or insufficient under Section 7(a)
or 7(b) hereof for any reason other than as specified therein,
the indemnified party shall be entitled to contribution for any
and all losses, claims, damages, liabilities and expenses for
which such indemnification is so unavailable or insufficient
under this Section 7(c). In determining the amount of
contribution to which such indemnified party is entitled, there
shall be considered the portion of the proceeds of the offering
of the Senior Notes realized, the relative knowledge and access
to information concerning the matter with respect to which the
claim was asserted, the opportunity to correct and prevent any
statement or omission, and any equitable considerations
appropriate under the circumstances. The Company and the
Underwriters agree that it would not be equitable if the amount
of such contribution were determined by pro rata or per capita
allocation (even if the Underwriters were treated as one entity
for such purpose) without reference to the considerations called
for in the previous sentence. No Underwriter or any person
controlling such Underwriter shall be obligated to contribute
any amount or amounts hereunder which in the aggregate exceeds
the total price of the Senior Notes purchased by such
Underwriter under this Agreement, less the aggregate amount of
any damages which such Underwriter and its controlling persons
have otherwise been required to pay in respect of the same claim
or any substantially similar claim. No person guilty of
fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
An Underwriter's obligation to contribute under this Section 7
is in proportion to its purchase obligation and not joint with
any other Underwriter.
(d) No indemnifying party shall, without the prior written consent
of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever in respect of
which indemnification or contribution could be sought under this
Section 7 (whether or not the indemnified parties are actual or
potential parties thereto), unless such settlement, compromise
or consent (i) includes an unconditional release of each
indemnified party from all liability arising out of such
litigation, investigation, proceeding or claim and (ii) does not
include a statement as to or an admission of fault, culpability
or a failure to act by or on behalf of such indemnified party.
(e) In no event shall any indemnifying party have any liability or
responsibility in respect of the settlement or compromise of, or
consent to the entry of any judgment with respect to, any
pending or threatened action or claim effected without its prior
written consent.
The agreements contained in this Section 7 hereof shall remain in full
force and effect regardless of any investigation made by or on behalf of any
person, and shall survive the delivery of and payment for the Senior Notes
hereunder.
8. Default of Underwriters: If any Underwriter under this Agreement shall
fail or refuse (otherwise than for some reason sufficient to justify, in
accordance with the terms hereof, the cancellation or termination of its
obligations hereunder) to purchase and pay for the principal amount of Senior
Notes which it has agreed to purchase and pay for hereunder, and the aggregate
principal amount of Senior Notes which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than one-tenth
of the aggregate principal amount of the Senior Notes, the other Underwriters
shall be obligated severally in the proportions which the amounts of Senior
Notes set forth opposite their names in Exhibit 1 hereto bear to the aggregate
principal amount of Senior Notes set forth opposite the names of all such
non-defaulting Underwriters, to purchase the Senior Notes which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on the
terms set forth herein; provided that in no event shall the principal amount of
Senior Notes which any Underwriter has agreed to purchase pursuant to Section 1
hereof be increased pursuant to this Section 8 by an amount in excess of
one-ninth of such principal amount of Senior Notes without the written consent
of such Underwriter. If any Underwriter or Underwriters shall fail or refuse to
purchase Senior Notes and the aggregate principal amount of Senior Notes with
respect to which such default occurs is more than one-tenth of the aggregate
principal amount of the Senior Notes then this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter; provided, however, that
the non-defaulting Underwriters may agree, in their sole discretion, to purchase
the Senior Notes which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase on the terms set forth herein. In the event of any
such termination, the Company shall not be under any liability to any
Underwriter (except to the extent, if any, provided in Section 4(h) hereof), nor
shall any Underwriter (other than an Underwriter who shall have failed or
refused to purchase the Senior Notes without some reason sufficient to justify,
in accordance with the terms hereof, its termination of its obligations
hereunder) be under any liability to the Company or any other Underwriter.
Nothing herein contained shall release any defaulting Underwriter from its
liability to the Company or any non-defaulting Underwriter for damages
occasioned by its default hereunder.
9. Termination of Agreement by the Underwriters: This Agreement may be
terminated at any time prior to the Time of Purchase by the Representative if,
after the execution and delivery of this Agreement and prior to the Time of
Purchase, in the Representative's reasonable judgment, the Underwriters' ability
to market the Senior Notes shall have been materially adversely affected
because:
(i) trading in securities on the New York Stock Exchange shall have
been generally suspended by the Commission or by the New York Stock
Exchange or trading in the securities of the Company shall have been
suspended by the New York Stock Exchange, or
(ii) there shall have occurred any outbreak or escalation of
hostilities, declaration by the United States of a national emergency or
war or other national or international calamity or crisis, or
(iii) a general banking moratorium shall have been declared by
Federal or New York State authorities, or
(iv) there shall have been any decrease in the ratings of the
Company's debt securities by Moody's Investors Services, Inc. (Moody's) or
Standard & Poor's Ratings Group (S&P) or either Moody's or S&P shall
publicly announce that it has such debt securities under consideration for
possible further downgrade other than what has been announced.
If the Representative elects to terminate this Agreement, as provided
in this Section 9, the Representative will promptly notify the Company by
telephone or by telex or facsimile transmission, confirmed in writing. If this
Agreement shall not be carried out by any Underwriter for any reason permitted
hereunder, or if the sale of the Senior Notes to the Underwriters as herein
contemplated shall not be carried out because the Company is not able to comply
with the terms hereof, the Company shall not be under any obligation under this
Agreement and shall not be liable to any Underwriter or to any member of any
selling group for the loss of anticipated profits from the transactions
contemplated by this Agreement (except that the Company shall remain liable to
the extent provided in Section 4(h) hereof) and the Underwriters shall be under
no liability to the Company nor be under any liability under this Agreement to
one another.
10. Notices: All notices hereunder shall, unless otherwise expressly
provided, be in writing and be delivered at or mailed to the following addresses
or by telex or facsimile transmission confirmed in writing to the following
addresses: if to the Underwriters, to the Representative at Banc of America
Securities LLC, 100 North Tryon Street, 8th Floor, Charlotte, North Carolina
28255, Attention: Transaction Management, Facsimile: (704) 388-9939 and J.P.
Morgan Securities Inc., 270 Park Avenue, 7th Floor, New York, New York 10017,
Attention Transaction Execution Group (fax 212/834-6702), and, if to the
Company, to Southwestern Electric Power Company, c/o American Electric Power
Service Corporation, 1 Riverside Plaza, Columbus, Ohio 43215, Attention: General
Counsel (fax 614/716-1687).
11. Parties in Interest: The agreement herein set forth has been and is
made solely for the benefit of the Underwriters, the Company (including the
directors thereof and such of the officers thereof as shall have signed the
Registration Statement), the controlling persons, if any, referred to in Section
7 hereof, and their respective successors, assigns, executors and
administrators, and, except as expressly otherwise provided in Section 8 hereof,
no other person shall acquire or have any right under or by the virtue of this
Agreement.
12. Definition of Certain Terms: If there be two or more persons, firms or
corporations named in Exhibit 1 hereto, the term "Underwriters", as used herein,
shall be deemed to mean the several persons, firms or corporations, so named
(including the Representative herein mentioned, if so named) and any party or
parties substituted pursuant to Section 8 hereof, and the term "Representative",
as used herein, shall be deemed to mean the representative or representatives
designated by, or in the manner authorized by, the Underwriters. All obligations
of the Underwriters hereunder are several and not joint. If there shall be only
one person, firm or corporation named in Exhibit 1 hereto, the term
"Underwriters" and the term "Representative", as used herein, shall mean such
person, firm or corporation. The term "successors" as used in this Agreement
shall not include any purchaser, as such purchaser, of any of the Senior Notes
from any of the respective Underwriters.
13. Conditions of the Company's Obligations: The obligations of the
Company hereunder are subject to the Underwriters' performance of their
obligations hereunder, and the further condition that at the Time of Purchase
the Commission shall have issued appropriate orders, and such orders shall
remain in full force and effect, authorizing the transactions contemplated
hereby.
14. Applicable Law: This Agreement will be governed and construed in
accordance with the laws of the State of New York.
15. Execution of Counterparts: This Agreement may be executed in several
counterparts, each of which shall be regarded as an original and all of which
shall constitute one and the same document.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, on the date
first above written.
SOUTHWESTERN ELECTRIC POWER COMPANY
By:_/s/ Henry W. Fayne_________
Name: Henry W. Fayne
Title: President
BANC OF AMERICA SECURITIES LLC
J.P. MORGAN SECURITIES INC.
as Representative
and on behalf of the
Underwriters
named in Exhibit 1 hereto
BANC OF AMERICA SECURITIES LLC
By:_/s/ Peter J. Carbone_______
Name: Peter J. Carbone
Title: Vice President
J.P. MORGAN SECURITIES INC.
By:_/s/ Maria Sramek___________
Name: Maria Sramek
Title: Vice President
EXHIBIT 1
Name Principal Amount of Senior Notes
Banc of America Securities LLC $ 45,000,000
J.P. Morgan Securities Inc. 45,000,000
Danske Markets Inc. 10,000,000
--------------
TOTAL $ 100,000,000
Exhibit 4(a)
===================================================================
SOUTHWESTERN ELECTRIC POWER COMPANY
and
THE BANK OF NEW YORK,
AS TRUSTEE
___________________
THIRD SUPPLEMENTAL INDENTURE
Dated as of April 11, 2003
Supplemental to the Indenture
dated as of February 25, 2000
5.375% Senior Notes, Series C, due 2015
===================================================================
THIRD SUPPLEMENTAL INDENTURE, dated as of April 11, 2003,
between SOUTHWESTERN ELECTRIC POWER COMPANY, a corporation duly
organized and existing under the laws of the State of Delaware
(the "Company"), and THE BANK OF NEW YORK, a New York banking
corporation organized and existing under the laws of the State of
New York, as Trustee under the Original Indenture referred to
below (the "Trustee").
RECITALS OF THE COMPANY
The Company has heretofore executed and delivered to the
Trustee an indenture dated as of February 25, 2000 (the "Original
Indenture"), to provide for the issuance from time to time of its
debentures, notes or other evidences of indebtedness (the "Senior
Notes"), the form and terms of which are to be established as set
forth in Section 201 and 301 of the Original Indenture.
Section 901 of the Original Indenture provides, among other
things, that the Company and the Trustee may enter into
indentures supplemental to the Original Indenture for, among
other things, the purpose of establishing the form and terms of
the Senior Notes of any series as permitted in Sections 201 and
301 of the Original Indenture.
The Company has issued $150,000,000 aggregate principal
amount of its Floating Rate Notes, due 2002 pursuant to the
Original Indenture and the First Supplemental Indenture, dated
February 25, 2000 and $200,000,000 aggregate principal amount of
its 4.50% Senior Notes, Series B, due 2005, pursuant to the
Second Supplemental Indenture, dated as of June 26, 2002.
The Company desires to create a series of the Senior Notes
in an aggregate principal amount of $100,000,000 to be designated
the "5.375% Senior Notes, Series C, due 2015" (the "5.375% Senior
Notes"), and all action on the part of the Company necessary to
authorize the issuance of the 5.375% Senior Notes under the
Original Indenture and this Third Supplemental Indenture has been
duly taken.
All acts and things necessary to make the 5.375% Senior
Notes, when executed by the Company and completed, authenticated
and delivered by the Trustee as provided in the Original
Indenture and this Third Supplemental Indenture, the valid and
binding obligations of the Company and to constitute these
presents a valid and binding supplemental indenture and agreement
according to its terms, have been done and performed.
NOW, THEREFORE, THIS THIRD SUPPLEMENTAL INDENTURE WITNESSETH:
That in consideration of the premises and of the acceptance
and purchase of the 5.375% Senior Notes by the Holders thereof
and of the acceptance of this trust by the Trustee, the Company
covenants and agrees with the Trustee, for the equal benefit of
the Holders of the 5.375% Senior Notes, as follows:
ARTICLE ONE
Definitions
The use of the terms and expressions herein is in accordance
with the definitions, uses and constructions contained in the
Original Indenture and the form of the Global Security attached
hereto as Exhibit A.
ARTICLE TWO
Terms and Issuance of the 5.375% Senior Notes
SECTION 201. Issue of 5.375% Senior Notes
A series of Senior Notes which shall be designated the
"5.375% Senior Notes, Series C, due 2015" shall be executed,
authenticated and delivered from time to time in accordance with
the provisions of, and shall in all respects be subject to, the
terms, conditions and covenants of, the Original Indenture and
this Third Supplemental Indenture (including the form of Global
Security set forth in Exhibit A hereto). The aggregate principal
amount of the 5.375% Senior Notes, which may be authenticated and
delivered under this Third Supplemental Indenture shall not,
except as permitted by the provisions of the Original Indenture,
exceed $100,000,000.
SECTION 202. Form of 5.375% Senior Notes, Incorporation of Terms
The form of the 5.375% Senior Notes shall be substantially
in the form of the Global Security attached hereto as Exhibit A.
The terms of such 5.375% Senior Notes are herein incorporated by
reference and are part of this Third Supplemental Indenture.
SECTION 203. Depositary for Global Securities
The Depositary for any Global Securities of the series of
which this 5.375% Senior Note is a part shall be The Depository
Trust Company in The City of New York.
SECTION 204. Restrictions on Liens
The covenant contained in Section 1007 of the Original
Indenture shall not be applicable to the 5.375% Senior Notes.
So long as any of the 5.375% Senior Notes are outstanding,
the Company will not create or suffer to be created or to exist
any additional mortgage, pledge, security interest, or other lien
(collectively "Liens") on any of its utility properties or
tangible assets now owned or hereafter acquired to secure any
indebtedness for borrowed money ("Secured Debt"), without
providing that the 5.375% Senior Notes will be similarly
secured. This restriction does not apply to the Company's
subsidiaries, nor will it prevent any of them from creating or
permitting to exist Liens on their property or assets to secure
any Secured Debt. Further, this restriction on Secured Debt does
not apply to the Company's existing first mortgage bonds that
have previously been issued under its Indenture, dated February
1, 1940, between the Company and Continental Bank, National
Association and M.J. Kruger, as Trustees or any indenture
supplemental thereto; provided that this restriction will apply
to future issuances thereunder (other than issuances of refunding
first mortgage bonds). In addition, this restriction does not
prevent the creation or existence of:
(a) Liens on property existing at the time of acquisition
or construction of such property (or created within one year
after completion of such acquisition or construction), whether by
purchase, merger, construction or otherwise, or to secure the
payment of all or any part of the purchase price or construction
cost thereof, including the extension of any Liens to repairs,
renewals, replacements, substitutions, betterments, additions,
extensions and improvements then or thereafter made on the
property subject thereto;
(b) Financing of the Company's accounts receivable for
electric service;
(c) Any extensions, renewals or replacements (or successive
extensions, renewals or replacements), in whole or in part, of
liens permitted by the foregoing clauses; and
(d) The pledge of any bonds or other securities at any time
issued under any of the Secured Debt permitted by the above
clauses.
In addition to the permitted issuances above, Secured Debt
not otherwise so permitted may be issued in an amount that does
not exceed 15% of Net Tangible Assets as defined below.
"Net Tangible Assets" means the total of all assets
(including revaluations thereof as a result of commercial
appraisals, price level restatement or otherwise) appearing on
the Company's balance sheet, net of applicable reserves and
deductions, but excluding goodwill, trade names, trademarks,
patents, unamortized debt discount and all other like intangible
assets (which term shall not be construed to include such
revaluations), less the aggregate of the Company's current
liabilities appearing on such balance sheet. For purposes of
this definition, the Company's balance sheet does not include
assets and liabilities of its subsidiaries.
This restriction also does not apply to or prevent the
creation or existence of leases made, or existing on property
acquired, in the ordinary course of business.
SECTION 205. Place of Payment
The Place of Payment in respect of the 5.375% Senior Notes
will be at the principal office or place of business of the
Trustee or its successor in trust under the Indenture, which, at
the date hereof, is located at 101 Barclay Street, New York, NY
10281, Attention: Corporate Trust Trustee.
ARTICLE THREE
Miscellaneous
SECTION 301. Execution as Supplemental Indenture
This Third Supplemental Indenture is executed and shall be
construed as an indenture supplemental to the Original Indenture
and, as provided in the Original Indenture, this Third
Supplemental Indenture forms a part thereof.
SECTION 302. Conflict with Trust Indenture Act
If any provision hereof limits, qualifies or conflicts with
another provision hereof which is required to be included in this
Third Supplemental Indenture by any of the provisions of the
Trust Indenture Act, such required provision shall control.
SECTION 303. Effect of Headings
The Article and Section headings herein are for convenience
only and shall not affect the construction hereof.
SECTION 304. Successors and Assigns
All covenants and agreements by the Company in this Third
Supplemental Indenture shall bind its successors and assigns,
whether so expressed or not.
SECTION 305. Separability Clause
In case any provision in this Third Supplemental Indenture
or in the 5.375% Senior Notes shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired
thereby.
SECTION 306. Benefits of Third Supplemental Indenture
Nothing in this Third Supplemental Indenture or in the
5.375% Senior Notes, express or implied, shall give to any
Person, other than the parties hereto and their successors
hereunder and the Holders, any benefit or any legal or equitable
right, remedy or claim under this Third Supplemental Indenture.
SECTION 307. Execution and Counterparts
This Third Supplemental Indenture may be executed in any
number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute but
one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Third Supplemental Indenture to be duly executed and their
respective corporate seals to be hereunto affixed and attested,
all as of the day and year first above written.
SOUTHWESTERN ELECTRIC POWER COMPANY
By:_/s/ Henry W. Fayne____________
Vice President
Attest:
__/s/ A. A. Pena_________
Treasurer
THE BANK OF NEW YORK,
as Trustee
By_/s/ Joseph A. Lloret_______
Authorized Signatory
Attest:
_/s/ Cynthia Chaney______
Name: Cynthia Chaney
Title: Vice President
EXHIBIT A
[Form of Face of Global Security]
This Security is a Global Security within the meaning of the
Indenture hereinafter referred to and is registered in the name
of a Depositary or a nominee of a Depositary. This Security is
exchangeable for Securities registered in the name of a Person
other than the Depositary or its nominee only in the limited
circumstances described in the Indenture, and no transfer of this
Security (other than a transfer of this Security as a whole by
the Depositary to a nominee of the Depositary or by a nominee of
the Depositary to the depositary or another nominee of the
Depositary) may be registered except in limited circumstances.
Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York
corporation ("DTC"), to Southwestern Electric Power Company or
its agent for registration of transfer, exchange or payment, and
any definitive certificate issued is registered in the name of
Cede & Co. or in such other name as is requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or
to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL in as much
as the registered owner hereof, Cede & Co., has an interest
herein.
No. R-1
SOUTHWESTERN ELECTRIC POWER COMPANY
5.375% Senior Notes, Series C, due 2015
CUSIP No. 845437BE1 $100,000,000
SOUTHWESTERN ELECTRIC POWER COMPANY, a corporation duly
organized and existing under the laws of the State of Delaware
(the "Company", which term includes any successor Person under
the Indenture hereinafter referred to), for value received,
hereby promises to pay to CEDE & CO. or registered assigns, the
principal sum of One Hundred Million Dollars ($100,000,000) on
April 15, 2015 (the "Final Maturity"), and to pay interest
thereon from April 11, 2003 or from the most recent Interest
Payment Date to which interest has been paid or duly provided
for, semi-annually on April 15 and October 15 of each year,
commencing October 15, 2003, at the Interest Rate per annum
specified above, until the Principal Amount shall have been paid
or duly provided for. Interest shall be computed on the basis of
a 360-day year of twelve 30-day months.
The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in
such Indenture, be paid to the Person in whose name this Security
(or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest,
which shall be the March 31 or September 30 (whether or not a
Business Day) immediately preceding the Interest Payment Date.
Any such interest not so punctually paid or duly provided for
will forthwith cease to be payable to the Holder on such Regular
Record Date and may either be paid to the Person in whose name
this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities
of this series not less than 10 days prior to such Special Record
Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on
which the Securities of this series may be listed, and upon such
notice as may be required by such exchange, all as more fully
provided in said Indenture.
Payment of the principal of (and premium, if any) and
interest on this Security will be made at the office or agency of
the Company maintained for that purpose in the Borough of
Manhattan, The City of New York, New York, in such coin or
currency of the United States of America as at the time of
payment is legal tender for the payment of public and private
debts; provided, however, that at the option of the Company
payment of interest may be made by check mailed to the address of
the Person entitled thereto as such address shall appear in the
Security Register.
This Security has initially been issued in the form of a
Global Security, and the Company has initially designated The
Depository Trust Company (the "Depositary", which term shall
include any successor depositary) as the depositary for this
Security. For as long as this Security or any portion hereof is
issued in such form, and notwithstanding the previous paragraph,
all payments of interest, principal and other amounts in respect
of this Security or portion thereof shall be made to the
Depositary or its nominee in accordance with the Applicable
Procedures in the coin or currency specified above and as further
provided herein.
This Security is one of a duly authorized issue of
securities of the Company (the "Securities"), issued and to be
issued in one or more series under an Indenture, dated as of
February 25, 2000, as amended and supplemented from time to time
(the "Indenture", which term shall have the meaning assigned to
it in such instrument), between the Company and The Bank of New
York, a New York banking corporation, as Trustee (the "Trustee",
which term includes any successor trustee under the Indenture),
as to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder
of the Company, the Trustee and the Holders and of the terms upon
which the Securities are, and are to be, authenticated and
delivered. This Security is one of the series designated on the
face hereof, limited in aggregate principal amount to
$100,000,000; provided, however, the aggregate principal amount
hereof can be increased, without the consent of the Holder, as
permitted by the provisions of the Original Indenture. The
provisions of this Security, together with the provisions of the
Indenture, shall govern the rights, obligations, duties and
immunities of the Holder, the Company and the Trustee with
respect to this Security, provided that, if any provision of this
Security necessarily conflicts with any provision of the
Indenture, the provision of this Security shall be controlling to
the fullest extent permitted under the Indenture.
The Securities of this Series are subject to redemption upon
not less than 30 nor more than 60 days' notice by mail to the
Holders of such Securities at their addresses in the Security
Register for such Series at the option of the Company, in whole
or in part, from time to time at a Redemption Price equal to the
greater of (i) 100% of the principal amount of the Notes being
redeemed and (ii) the sum of the present values of the remaining
scheduled payments of principal and interest on the Notes being
redeemed (excluding the portion of any such interest accrued to
the date of redemption) discounted (for purposes of determining
present value) to the redemption date on a semi-annual basis
(assuming a 360-day year consisting of twelve 30-day months) at
the Treasury Rate (as defined below) plus 25 basis points, plus,
in each case, accrued interest thereon to the date of redemption.
"Treasury Rate" means, with respect to any redemption
date, the rate per annum equal to the semi-annual
equivalent yield to maturity of the Comparable Treasury
Issue, assuming a price for the Comparable Treasury
Issue (expressed as a percentage of its principal
amount) equal to the Comparable Treasury Price for such
redemption date.
"Comparable Treasury Issue" means the United States
Treasury security selected by an Independent Investment
Banker as having a maturity comparable to the remaining
term of the Notes that would be utilized, at the time
of selection and in accordance with customary financial
practice, in pricing new issues of corporate debt
securities of comparable maturity to the remaining term
of the Notes.
"Comparable Treasury Price" means, with respect to any
redemption date, (1) the average of the bid and asked
prices for the Comparable Treasury Issue (expressed in
each case as a percentage of its principal amount) on
the third Business Day preceding such redemption date,
as set forth in the daily statistical release (or any
successor release) published by the Federal Reserve
Bank of New York and designated "Composite 3:30 p.m.
Quotations for U.S. Government Securities" or (2) if
such release (or any successor release) is not
published or does not contain such prices on such third
Business Day, the Reference Treasury Dealer Quotation
for such redemption date.
"Independent Investment Banker" means one of the
Reference Treasury Dealers appointed by the Company and
reasonably acceptable to the Trustee.
"Reference Treasury Dealer" means a primary U. S.
government securities dealer in New York City selected
by the Company and reasonably acceptable to the Trustee.
"Reference Treasury Dealer Quotation" means, with
respect to the Reference Treasury Dealer and any
redemption date, the average, as determined by the
Trustee, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage
of its principal amount) quoted in writing to the
Trustee by such Reference Treasury Dealer at or before
5:00 p.m., New York City time, on the third Business
Day preceding such redemption date.
If notice has been given as provided in the Indenture and
funds for redemption of any Securities (or any portion thereof)
called for redemption shall have been made available on the
Redemption Date referred to in such notice, such Securities (or
any portion thereof) will cease to bear interest on the date
fixed for such redemption specified in such notice and the only
right of the Holders of such Securities will be to receive
payment of the Redemption Price.
In the event of redemption of this Security in part only, a
new Security or Securities of this Series and of like tenor for
the unredeemed portion hereof will be issued in the name of the
Holder hereof upon the cancellation hereof.
The Securities of this series will not be subject to any
sinking fund.
If an Event of Default with respect to Securities of this
series shall occur and be continuing, the principal of the
Securities of this series may be declared due and payable in the
manner and with the effect provided in the Indenture.
Interest payments with respect to this Security will be
computed and paid on the basis of a 360-day year of twelve 30-day
months for the actual number of days elapsed.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the
rights and obligations of the Company and the rights of the
Holders of the Securities of each series to be affected under the
Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the
Securities at the time Outstanding of all series to be affected
(voting as a class). The Indenture also contains provisions
permitting the Holders of specified percentages in principal
amount of the Securities of each Series at the time Outstanding,
on behalf of the Holders of all Securities of such series, to
waive compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this
Security shall be conclusive and binding upon such Holder and
upon all future Holders of this Security and of any Security
issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of
this Security or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional,
to pay the principal of, premium, if any, and interest on this
Security at the times, place and rate, and in the coin or
currency, herein prescribed.
This Security shall be exchangeable for Securities
registered in the names of Persons other than the Depositary with
respect to such series or its nominee only as provided in the
Indenture. This Security shall be so exchangeable if (x) the
Depositary notifies the Company that it is unwilling or unable to
continue as Depositary for such series or at any time ceases to
be a clearing agency registered as such under the Exchange Act,
(y) the Company executes and delivers to the Trustee an Officers'
Certificate providing that this Security shall be so exchangeable
or (z) there shall have occurred and be continuing an Event of
Default with respect to the Securities of such series.
Securities so issued in exchange for this Security shall be of
the same series, having the same interest rate, if any, and
maturity and having the same terms as this Security, in
authorized denominations and in the aggregate having the same
principal amount as this Security and registered in such names as
the Depositary for such Global Security shall direct.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of a Security of the
series of which this Security is a part is registrable in the
Security Register, upon surrender of this Security for
registration of transfer at the office or agency of the Company
in any place where the principal of and any premium and interest
on this Security are payable, duly endorsed by, or accompanied by
a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder
hereof or his attorney duly authorized in writing, and thereupon
one or more new Securities of this Series and of like tenor, of
authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or
transferees.
The Securities of this Series are issuable only in
registered form without coupons in denominations of $1,000 and
any integral multiple thereof. As provided in the Indenture and
subject to certain limitations therein set forth, Securities of
this Series are exchangeable for a like aggregate principal
amount of Securities of this Series and of like tenor of a
different authorized denomination, as requested by the Holder
surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Prior to due presentment of this Security for registration
of transfer, the Company, the Trustee and any agent of the
Company or the Trustee may treat the Person in whose name this
Security is registered as the owner hereof for all purposes,
whether or not this Security be overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the
contrary.
For so long as this Security is issued in the form of a
Global Security, any notice to be given to the Holder of this
Security shall be deemed to have been duly given to such Holder
when given to the Depositary, or its nominee, in accordance with
its Applicable Procedures. Neither the Company nor the Trustee
will have any responsibility with respect to those policies and
procedures or for any notices or other communications among the
Depositary, its direct and indirect participants and the
beneficial owners of this Security in global form.
If at any time this Security is not represented by a Global
Security, any notice to be given to the Holder of this Security
shall be deemed to have been duly given to such Holder upon the
mailing of such notice to the Holder at such Holder's address as
it appears on the Security Register maintained by the Company or
its agent as of the close of business preceding the day such
notice is given.
Neither the failure to give any notice nor any defect in any
notice given to the Holder of this Security or any other Security
of this series will affect the sufficiency of any notice given to
another Holder of any Securities of this series.
Prior to due presentment of this Security for registration
of transfer, the Company, the Trustee and any agent of the
Company or the Trustee may treat the Person in whose name this
Security is registered as the owner hereof for all purposes,
whether or not this Security be overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the
contrary.
The Indenture provides that the Company, at its option, (a)
will be discharged from any and all obligations in respect of the
Securities (except for certain obligations to register the
transfer or exchange of Securities, replace stolen, lost or
mutilated Securities, maintain paying agencies and hold moneys
for payment in trust) or (b) need not comply with certain
restrictive covenants of the Indenture, in each case if the
Company deposits, in trust, with the Trustee money or U.S.
Government Obligations which, through the payment of interest
thereon and principal thereof in accordance with their terms,
will provide money, in an amount sufficient to pay all the
principal of, and premium, if any, and interest, if any, on the
Securities on the dates such payments are due in accordance with
the terms of such Securities, and certain other conditions are
satisfied.
No recourse shall be had for the payment of the principal of
or the interest on this Security, or for any claim based hereon,
or otherwise in respect hereof, or based on or in respect of the
Indenture or any indenture supplemental thereto, against any
incorporator, organizer, member, limited partner, stockholder,
officer or director, as such, past, present or future, of the
Company or any successor Person, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of
any assessment or penalty or otherwise, all such liability being,
by the acceptance hereof and as part of the consideration for the
issuance hereof, expressly waived and released.
This Security shall be governed by and construed in
accordance with the laws of the State of New York without regard
to principles of conflict of law except Section 5-1401 of the New
York General Obligations Law.
All terms used in this Security which are defined in the
Indenture shall have the meanings ascribed to them in the
Indenture.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to herein by manual signature,
this Security shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, Southwestern Electric Power Company has
caused this instrument to be duly executed under its corporate
seal.
SOUTHWESTERN ELECTRIC POWER COMPANY
By______________________________________
Treasurer
This is one of the Securities of the series designated
herein and referred to in the within-mentioned Indenture.
Dated: April 11, 2003 THE BANK OF NEW YORK
By_____________________________
Authorized Signatory
FOR VALUE RECEIVED, the undersigned hereby sell(s),
assign(s) and transfer(s) unto
(PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE)
_______________________________________
________________________________________________________________
________________________________________________________________
(PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE, OF
________________________________________________________________
ASSIGNEE) the within Note and all rights thereunder, hereby
________________________________________________________________
irrevocably constituting and appointing such person attorney to
________________________________________________________________
transfer such Note on the books of the Issuer, with full
________________________________________________________________
power of substitution in the premises.
Dated:________________________ _________________________
NOTICE: The signature to this assignment must correspond with
the name as written upon the face of the within Note in
every particular, without alteration or enlargement or
any change whatever and NOTICE: Signature(s) must be
guaranteed by a financial institution that is a member
of the Securities Transfer Agents Medallion Program
("STAMP"), the Stock Exchange Medallion Program
("SEMP") or the New York Stock Exchange, Inc. Medallion
Signature Program ("MSP").
Exhibit 5(a)
April 11, 2003
Southwestern Electric Power Company
1 Riverside Plaza
Columbus, Ohio 43215
Ladies and Gentlemen:
We have acted as counsel to Southwestern Electric Power Company, a
Delaware corporation (the "Company"), in connection with the Registration
Statement on Form S-3 (Registration Statement No. 333-100632) (the "Registration
Statement") filed by the Company with the Securities and Exchange Commission
(the "Commission") under the Securities Act of 1933, as amended (the "Act"),
relating to $100,000,000 aggregate principal amount of Senior Notes, Series C,
due 2015 (the "Notes") issued under an Indenture, dated as of February 25,
2000(the "Indenture"), between the Company and The Bank of New York, as Trustee
(the "Trustee").
We have examined the Registration Statement and the Indenture which
has been filed with the Commission as an exhibit to the Registration Statement.
We also have examined the originals, or duplicates or certified or conformed
copies, of such records, agreements, instruments and other documents and have
made such other and further investigations as we have deemed relevant and
necessary in connection with the opinions expressed herein. As to questions of
fact material to this opinion, we have relied upon certificates of public
officials and of officers and representatives of the Company.
In rendering the opinions set forth below, we have assumed the
genuineness of all signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as duplicates or certified
or conformed copies and the authenticity of the originals of such latter
documents. We also have assumed that: (1) the Indenture is the valid and legally
binding obligation of the Trustee; and (2) the Company is validly existing under
the laws of Delaware.
We have assumed further that (1) the Company has duly authorized,
executed and delivered the Indenture and (2) execution, delivery and performance
by the Company of Indenture and the Notes do not and will not violate any other
applicable laws (excepting the laws of the State of New York, the Federal laws
of the United States and the Delaware General Corporation law).
Based upon the foregoing, and subject to the qualifications and
limitations stated herein, we are of the opinion that assuming the due
authentication of the Notes by the Trustee, the Notes constitute valid and
legally binding obligations of the Company enforceable against the Company in
accordance with their terms, subject to the effects of (i) bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally, (ii) general
equitable principles (whether considered in a proceeding in equity or at law)
and (iii) an implied covenant of good faith and fair dealing.
We are members of the Bar of the State of New York, and we do not
express any opinion herein concerning any law other than the law of the State of
New York the Federal law of the United States and the Delaware General
Corporation Law.
We hereby consent to the filing of this opinion letter as Exhibit
5(a) to the Registration Statement and to the use of our name under the caption
"Legal Opinions" in the Prospectus included in the Registration Statement.
Very truly yours,
/s/ Simpson Thacher & Bartlett
SIMPSON THACHER & BARTLETT