<PAGE>
================================================================================
UNITED STATES
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: December 4, 1998
================================================================================
<TABLE>
<CAPTION>
Exact Name of Registrant Commission I.R.S. Employer
as Specified in Its Charter File Number Identification No.
- ---------------------------------------- ----------- ------------------
<S> <C> <C>
Hawaiian Electric Industries, Inc. 1-8503 99-0208097
Hawaiian Electric Company, Inc. 1-4955 99-0040500
================================================================================
</TABLE>
State of Hawaii
----------------------------------------------
(State or other jurisdiction of incorporation)
900 Richards Street, Honolulu, Hawaii 96813
----------------------------------------------------------------
(Address of principal executive offices and zip code)
Registrant's telephone number, including area code:
(808) 543-5662 - Hawaiian Electric Industries, Inc. (HEI)
(808) 543-7771 - Hawaiian Electric Company, Inc. (HECO)
None
--------------------------------------------------------------
(Former name or former address, if changed since last report.)
================================================================================
<PAGE>
Item 5. Other Events
Earnings release
On January 19, 1998, HEI issued the following news release:
HAWAIIAN ELECTRIC INDUSTRIES, INC. REPORTS 1998 EARNINGS
HONOLULU -- Hawaiian Electric Industries, Inc. (NYSE - HE) today reported net
income from continuing operations for the year ended December 31, 1998 of
$94.6 million, or $2.96 per share. Net income from continuing operations was
$94.3 million, or $3.01 per share, in 1997, excluding a nonrecurring after tax
charge of $2.4 million for acquisition costs associated with the purchase of
Bank of America's Hawaii operations.
"Although Hawaii's economy continued to lag that of the nation, our companies
managed to keep earnings from continuing operations essentially unchanged from
the prior year," said Robert F. Clarke, HEI chairman, president and chief
executive officer.
Net income in 1998 amounted to $84.8 million, or $2.65 per share. The company
recorded an after-tax loss of $23.6 million due to the discontinuance of its
residential real estate operation in 1998. This loss was offset in part by
an after-tax gain of $13.8 million from the settlement of HEI's claims against
three insurance carriers relating to the 1994 settlement of a lawsuit
concerning the company's formerly owned property and casualty insurance
subsidiary. Net income in 1997, including the loss from discontinued real
estate operations, amounted to $86.4 million, or $2.76 per share.
Electric utility operating income in 1998 was up slightly at $177.5 million
compared with $171.8 million in 1997.
"Our utility companies did a terrific job in containing costs and improving
productivity to offset poor sales. It will be difficult to continue to
contain costs but our efforts will continue," said Clarke.
Kilowatthour sales for the year were down 1% compared to 1997. Hawaii's poor
economy caused the unprecedented drop in sales for two consecutive years.
Through November, visitor arrivals in Hawaii were 2% lower than the comparable
period of 1997, while visitor days remained relatively flat due to an increase
in the average length of stay. In addition, cooler temperatures on Oahu
during the year resulted in lower residential and commercial air conditioning
usage. Cooling degree days on Oahu in 1998 were 6% lower than 1997.
Excluding the nonrecurring charge, savings bank operating income increased to
$53.7 million in 1998 compared with $48.8 million in 1997.
"American Savings Bank's increase in operating income reflects a full year of
added earnings from the acquisition of Bank of America's Hawaii operations.
The results would have been even better for the bank had earnings not been
reduced by a flat yield curve, rising delinquencies, integration costs and
Year 2000 expenses," Clarke said.
With higher delinquencies, the savings bank continued to increase its
provision for loan losses. Net charge-offs, however, remained low in 1998 at
0.13% of average loans outstanding versus 0.12% in 1997. The bank's interest
rate spread the difference between the yield on earning assets and cost of
funds was 3.11% for 1998 versus 2.90% in 1997.
1
<PAGE>
The results of HEI's other nonutility subsidiaries and the corporate parent in
1998 reflect a larger operating loss than the prior year due in part to higher
start up costs of the international power subsidiary offset by improved
results from the maritime freight transportation subsidiaries. In addition,
last year's results included a $3 million after-tax investment gain recognized
by the company's passive investment subsidiary.
Interest expense increased due to higher borrowings to finance the acquisition
of Bank of America's Hawaii operations. In addition, preferred securities
distributions were higher, as trust preferred securities were issued in
February 1997, March 1997 and December 1998.
Hawaiian Electric Industries is a diversified holding company that delivers
essential services to the people of Hawaii. Its core businesses are electric
utilities and a savings bank. Other subsidiaries are involved in maritime
freight transportation and independent power and integrated energy services
projects in Asia and the Pacific.
Forward-looking information
This release contains forward-looking statements within the meaning of Section
21E of the Securities Exchange Act of 1934. Except for historical information
contained herein, the matters set forth are forward-looking statements that
involve certain risks and uncertainties that could cause actual results to
differ materially from those in the forward-looking statements. Potential
risks and uncertainties include, but are not limited to, such factors as the
effect of international, national and local economic conditions, including the
condition of the Hawaii tourist and construction industries; product demand
and market acceptance risks; increasing competition in the electric utility
industry; capacity and supply constraints or difficulties; new technological
developments; governmental and regulatory actions, including decisions in rate
cases and on permitting issues; the results of financing efforts; the timing
and extent of changes in interest rates and foreign currency exchange rates;
the convertibility and availability of foreign currency; political and
business risks inherent in doing business in a developing country; and the
risks associated with the installation of new computer systems and the
avoidance of Year 2000 problems. Investors are also directed to consider
other risks and uncertainties discussed in other periodic reports previously
and subsequently filed by HEI and/or HECO with the SEC.
2
<PAGE>
Hawaiian Electric Industries, Inc. and subsidiaries
CONSOLIDATED STATEMENTS OF INCOME
(unaudited)
<TABLE>
<CAPTION>
Three months ended Years ended
(in thousands, except December 31, December 31,
per share amounts) 1998 1997 1998 1997
- ---------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Revenues
Electric utility $253,789 $276,209 $1,016,283 $1,107,523
Savings bank 103,559 83,924 409,883 294,135
Other 14,976 15,052 58,999 58,769
-------- -------- ---------- ----------
372,324 375,185 1,485,165 1,460,427
-------- -------- ---------- ----------
Expenses
Electric utility 211,864 231,591 838,833 935,770
Savings bank 91,988 71,497 356,233 245,340
Acquisition costs* -- 4,056 -- 4,056
Other 16,700 16,519 65,453 62,554
-------- -------- ---------- ----------
320,552 323,663 1,260,519 1,247,720
-------- -------- ---------- ----------
Operating income (loss)
Electric utility 41,925 44,618 177,450 171,753
Savings bank 11,571 8,371 53,650 44,739
Other (1,724) (1,467) (6,454) (3,785)
-------- -------- ---------- ----------
51,772 51,522 224,646 212,707
-------- -------- ---------- ----------
Interest expense--
electric utility and other (17,179) (16,113) (70,524) (62,292)
Allowance for borrowed funds
used during construction 770 1,532 5,915 6,190
Preferred stock dividends
of electric utility subsidiaries (1,498) (1,556) (6,005) (6,253)
Preferred securities distributions
of trust subsidiaries (3,268) (3,097) (12,557) (10,600)
Allowance for equity funds
used during construction 1,325 2,785 10,106 10,864
-------- -------- ---------- ----------
Income from continuing operations
before income taxes 31,922 35,073 151,581 150,616
Income taxes 10,813 11,256 56,953 58,773
-------- -------- ---------- ----------
Income from continuing operations 21,109 23,817 94,628 91,843
-------- -------- ---------- ----------
Discontinued operations, net of income taxes
Loss from operations -- (971) (13,598) (5,401)
Net gain on disposals -- -- 3,781 --
-------- -------- ---------- ----------
Loss from discontinued operations -- (971) (9,817) (5,401)
-------- -------- ---------- ----------
Net income $ 21,109 $ 22,846 $ 84,811 $ 86,442
======== ======== ========== ==========
</TABLE>
3
<PAGE>
<TABLE>
<CAPTION>
Three months ended Years ended
(in thousands, except December 31, December 31,
per share amounts) 1998 1997 1998 1997
===================================================================================================
<S> <C> <C> <C> <C>
Per common share
Basic earnings (loss) -
Continuing operations $ 0.66 $ 0.75 $ 2.96 $ 2.93
Discontinued operations -- (0.03) (0.31) (0.17)
-------- -------- ---------- ----------
$ 0.66 $ 0.72 $ 2.65 $ 2.76
======== ======== ========== ==========
Diluted earnings (loss)
Continuing operations $ 0.66 $ 0.75 $ 2.95 $ 2.92
Discontinued operations -- (0.03) (0.31) (0.17)
-------- -------- ---------- ----------
$ 0.66 $ 0.72 $ 2.64 $ 2.75
======== ======== ========== ==========
Dividends $ 0.62 $ 0.61 $ 2.48 $ 2.44
======== ======== ========== ==========
Weighted average number of
common shares outstanding 32,081 31,765 32,014 31,375
======== ======== ========== ==========
Adjusted weighted average shares 32,199 31,888 32,129 31,470
======== ======== ========== ==========
</TABLE>
* One-time expenses incurred by ASB related to the acquisition in December 1997
of most of Bank of America - Hawaii operations ($2.4 million after tax).
<TABLE>
<S> <C> <C>
Income from continuing operations excluding acquisition costs $ 94,628 $ 94,285
=========== ==========
Basic earnings per common share
from continuing operations excluding acquisition costs $ 2.96 $ 3.01
=========== ==========
</TABLE>
This information should be read in conjunction with the consolidated financial
statements and the notes thereto incorporated by reference in HEI's Annual
Report on SEC Form 10-K for the years ended December 31, 1997 and December 31,
1998 (when filed) and the consolidated financial statements and the notes
thereto in HEI's Quarterly Report on SEC Form 10-Q for the quarters ended March
31, 1998, June 30, 1998 and September 30, 1998.
4
<PAGE>
HEI Power Corp. (HEIPC) subsidiary makes strategic investment in the Philippines
In December 1998, HEIPC invested $7.6 million, through a wholly-owned, indirect
subsidiary, to acquire convertible cumulative nonparticipating 8% preferred
shares in Cagayan Electric Power & Light Co., Inc. (CEPALCO), an electric
distribution company in the Philippines. The preferred shares are convertible
into common shares at the option of HEIPC after 2 years and within 5 years,
unless CEPALCO has an initial public offering (at which time there would be a
mandatory conversion). The preferred shares are also redeemable in five years,
if not converted earlier. The preferred shares are intended to constitute 15%
of the issued and outstanding capital stock of CEPALCO upon their full
conversion. The acquisition is a strategic move which puts HEIPC in a position
to participate in the eventual privatization of the National Power Corporation
and growth in the distribution business in the Philippines. CEPALCO is a
privately owned, regulated local distribution company on the island of Mindanao.
Information provided by CEPALCO. CEPALCO has an exclusive franchise in four
- --------------------------------
cities/municipalities located in the province of Misamis Oriental. CEPALCO
operates and maintains a total substation capacity of 75 megavoltamperes
distributed among three power substations. It also operates and maintains a
total of 47 kilometers of transmission lines (rated at 69 kilovolts and 138
kilovolts) and a total of 1,000 kilometers of distribution lines. In recent
years, CEPALCO's customer base has increased at an average annual rate of
approximately 7%. In 1997, CEPALCO had approximately 70,000 commercial,
industrial, residential and bulk power customers.
Hawaii Electric Light Company, Inc. (HELCO) power situation
The following discussion repeats and updates disclosures made in previous
reports concerning the status of HELCO's efforts to provide additional
generation on the island of Hawaii.
Background. In 1991, HELCO identified the need, beginning in 1994, for
- ----------
additional generation to provide for forecast load growth while maintaining a
satisfactory generation reserve margin, to address uncertainties about future
deliveries of power from existing firm power producers and to permit the
retirement of older generating units. Accordingly, HELCO proceeded with plans to
install at its Keahole power plant site two 20-megawatt (MW) combustion turbines
(CT-4 and CT-5), followed by an 18-MW heat steam recovery generator (ST-7), at
which time these units would be converted to a 56-MW (net) combined-cycle unit.
In January 1994, the Public Utilities Commission of the State of Hawaii (PUC)
approved expenditures for CT-4, which HELCO had planned to install in late 1994.
The timing of the installation of HELCO's phased combined-cycle unit at the
Keahole power plant site has been revised several times due to delays in (a)
obtaining approval from the Hawaii Board of Land and Natural Resources (BLNR) of
a Conservation District Use Permit (CDUP) amendment and (b) obtaining from the
Department of Health of the State of Hawaii (DOH) and the U.S. Environmental
Protection Agency (EPA) a Prevention of Significant Deterioration/Covered Source
permit (PSD permit) for the Keahole power plant site. Subject to satisfactory
resolution of the CDUP amendment and PSD permit matters, HELCO's current plan
continues to contemplate that CT-4 and CT-5 will be added to its system. Current
plans are for ST-7 to be deferred to approximately 2006 or 2007 unless the
Encogen Hawaii, L.P. facility (described below) is not placed in service as
planned. In December 1998, HELCO disposed of ST-7 costs as described below.
CDUP amendment. On July 10, 1997, the Third Circuit Court of the State of Hawaii
- ---------------
issued its Amended Findings of Fact, Conclusions of Law, Decision and Order on
HELCO's appeal of an order of the BLNR, along with other consolidated civil
cases relating to HELCO's application for a CDUP amendment. This decision allows
HELCO to use its Keahole property as requested in its application. An amended
order to the same effect was issued on August 18, 1997. Final judgments have
been entered in all of the consolidated cases. Appeals with respect to the final
judgments for
5
<PAGE>
certain of the cases have been filed with the Hawaii Supreme Court. Motions
filed with the Third Circuit Court to stay the effectiveness of the judgments
pending resolution of the appeals were denied in April and July 1998 (in
response to a motion for reconsideration). In August 1998, the Hawaii Supreme
Court denied nonhearing motions for stay of final judgment pending resolution of
the appeals. Management believes that HELCO will ultimately prevail on appeal
and that the final judgments of the Third Circuit Court will be upheld.
PSD permit. In November 1995, the EPA declined to sign HELCO's PSD permit for
- ----------
the combined-cycle unit. In 1997, the EPA and the DOH issued a final PSD permit
for HELCO's combined-cycle unit at Keahole. Nine appeals of the issuance of the
permit were filed with the EPA's Environmental Appeals Board (EAB) in December
1997.
On November 25, 1998, the EAB issued an Order Denying Review in Part and
Remanding in Part. The EAB denied appeals of the permit that were based on
challenges to (1) DOH's use of a netting analysis (with respect to nitrogen
oxide (NOx) emissions), (2) DOH's determination of Best Available Control
Technology (BACT) for control of sulfur dioxide emissions, and (3) certain
aspects of DOH's ambient air and source impact analysis. However, the EAB
concluded that DOH had not adequately responded to comments that had been made
during the public comment period that data relating to certain ambient air
concentrations were outdated or were measured at unrepresentative locations. The
EAB remanded the proceedings and directed DOH to reopen the permit for the
limited purpose of (1) providing an updated air quality impact report
incorporating current data on sulfur dioxide and particulate matter ambient
concentrations and (2) providing a sufficient explanation of why the carbon
monoxide and ozone data used to support the permit are reasonably
representative, or performing a new air quality analysis based on data shown to
be representative of the air quality in the area to be affected by the project.
The EAB directed DOH to accept and respond to public comments on DOH's decisions
with respect to these issues and ruled that any further appeals of its decision
would be limited to the issues addressed on remand.
On December 4, 1998, HELCO filed with the EAB a motion for reconsideration of
its November 25, 1998 Order, contending that the DOH adequately responded to
public comments about the air quality data used in the air permit application.
The Keahole Defense Coalition (KDC) filed with the EAB a motion dated December
7, 1998 for reconsideration of the EAB's November 25, 1998 Order, regarding the
validity of HELCO's PSD Permit No. HI-88-01 for CT-2, and the applicability of
the terms of a PSD delegation agreement between the DOH and EPA. Kawaihae
Cogeneration Partners (KCP) filed with the EAB a motion dated December 8, 1998
for reconsideration of the EAB's November 25, 1998 Order regarding the EAB's
approval of the Keahole BACT determination. On December 18, 1998, HELCO filed
with the EAB a memorandum in opposition to KDC's and KCP's motions for
reconsideration. The EAB's decision with respect to the motions for
reconsideration is pending.
As a result of the EAB's decision on November 25, 1998, there has been a further
delay in HELCO's construction of CT-4 and CT-5 at Keahole. The actual length of
the delay will depend on the outcome of the motions for reconsideration and the
actions needed to address the EAB's rulings, but may exceed one year. Despite
this additional delay, HELCO believes that the PSD permit will eventually be
obtained, and the generating units will be built. Though management believes it
has acted prudently with respect to this project, HELCO has decided to
discontinue, for financial reporting purposes, the accrual of an Allowance For
Funds Used During Construction (AFUDC) on the generating units effective
December 1, 1998. The generating unit delays are being imposed on HELCO by
external forces, are unavoidable and are beyond HELCO's control. The length of
the delays to date and potential further delays were factors considered by
management in its decision to discontinue the accrual of AFUDC (which would have
been approximately $0.4 million after-tax per month) for financial reporting
purposes.
In addition to discontinuing the accrual of AFUDC, HELCO is proceeding to
dispose of approximately $800,000 in costs accumulated against ST-7 (the steam
waste heat generator segment of the combined cycle unit). Of the total costs
incurred, approximately $650,000 was
6
<PAGE>
written off to expense in December 1998. The remaining approximately $150,000,
which represents the salvage value of purchased switchgear, will be transferred
to inventory in January 1999. This disposition of ST-7 costs was made because
HELCO believes, at this time, that the unit will not be needed in the immediate
future.
Declaratory judgment actions. In February 1997, the Keahole Defense Coalition
- ----------------------------
and three individuals filed a lawsuit in the Third Circuit Court of the State of
Hawaii against HELCO, the director of the DOH, and the BLNR, seeking declaratory
rulings that, with regard to the Keahole project, one or more of the defendants
had violated, or could not allow the plant to operate without violating, the
State Clean Air Act, the State Noise Pollution Act, conditions of HELCO's
conditional use permit, covenants of HELCO's land patent and Hawaii
administrative rules regarding standard conditions applicable to land permits.
The Complaint was amended in March of 1998 to add a claim that an amendment to a
provision of the land patent (relating to the conditions under which the State
could repurchase the land) is void and that the original provision should be
reinstated. Cross motions for summary judgment were denied without explanation
by orders filed in March 1998. The court subsequently granted plaintiffs' motion
to clarify the issues involved in one count of the complaint, but HELCO does not
believe that the court's ruling on this motion or related findings are
significant with respect to the ultimate outcome of the case.
Discovery in the case is ongoing and the case has been set for jury trial in May
1999. Based on the discovery to date, HELCO does not believe that there are
issues of fact requiring jury resolution and HELCO currently intends to complete
discovery and then to file motions for summary judgment and other relief. The
motions are expected to demonstrate that plaintiff's claims are without merit as
well as to establish a number of affirmative defenses, including plaintiffs'
lack of standing, the applicability of the primary jurisdiction doctrine, the
failure of plaintiffs to exhaust their administrative remedies or to satisfy
conditions precedent to the filing of the suit and the barring of plaintiffs'
claims under the doctrines of res judicata and collateral estoppel.
Two additional cases, which were subsequently consolidated before the Third
Circuit Court of the State of Hawaii, were filed in 1998. In March 1998, an
individual filed a complaint for declaratory judgment against HELCO, the BLNR
and the Department of Land and Natural Resources of the State of Hawaii (DLNR).
The complaint alleges a violation of plaintiff's constitutional due process
rights because the land use conditions (if any) which apply to HELCO's use of
the Keahole site were determined administratively by the DLNR (through a letter
issued to HELCO in January 1998) rather than being decided by the BLNR in a
contested case. Also filed with the complaint was a motion to stay enforcement
of the DLNR letter, which motion was denied in April 1998. In May 1998, Waimana
Enterprises, whose subsidiary is a partner in Kawaihae Cogeneration Partners
(KCP), filed a lawsuit in the Third Circuit Court of the State of Hawaii, asking
for a declaration that the January 1998 DLNR letter is void and seeking an
injunction to prevent HELCO from further construction until the Court or the
BLNR, at a public hearing, determines what conditions and limitations apply and
whether HELCO is in compliance with them. HELCO currently intends to file a
motion to consolidate these two cases with the Keahole Defense Coalition
lawsuit.
HELCO intends to vigorously defend against the claims raised in these 1997 and
1998 cases and, based on the status of the cases to date, management believes
the allegations are without merit and that these cases will not prevent it from
constructing CT-4 and CT-5 at Keahole.
IPP complaints. Two independent power producers (IPPs), KCP and Enserch
- --------------
Development Corporation (Enserch), filed separate complaints against HELCO with
the PUC in 1993 and 1994, respectively, alleging that they are entitled to power
purchase contracts to provide HELCO with additional capacity, which they claimed
would be a substitute for HELCO's planned 56-MW combined-cycle unit at Keahole.
Under HELCO's current estimate of generating capacity requirements, there is a
need for capacity in addition to the capacity which might be provided by either
of the proposed IPP units.
7
<PAGE>
In September 1995, the PUC allowed HELCO to continue to pursue construction of
and commit expenditures for the second combustion turbine (CT-5) and the steam
recovery generator (ST-7) for its planned combined-cycle unit, stating in its
order that "no part of the project may be included in HELCO's rate base unless
and until the project is in fact installed, and is used and useful for utility
purposes." The PUC also ordered HELCO to continue negotiating with the IPPs and
directed that the facility to be built (i.e., either HELCO's or one of the
IPP's) should be the one that can be most expeditiously put into service at
"allowable cost."
The current status of the IPPs' PUC complaints, and of a complaint filed by Hilo
Coast Power Company (HCPC) in April 1997, is as follows:
Enserch complaint. On January 16, 1998, HELCO filed with the PUC an
-----------------
application for approval of a power purchase agreement for a 60-MW facility
and an interconnection agreement with Encogen, an Enserch affiliate, dated
October 22, 1997. The agreements were entered into following a settlement
agreement between Enserch and HELCO and are subject to PUC approval. The
parties to the proceeding include HELCO, Encogen and the Consumer Advocate.
Motions to intervene filed by KCP, HCPC and one other IPP were denied by
the PUC. KCP filed a notice of appeal, which was denied (in an oral ruling)
by the Hawaii court hearing the appeal. The Consumer Advocate filed a
Statement of Position on December 11, 1998, in which it recommended that an
evidentiary hearing be held following additional discovery, to address its
issues and concerns regarding the agreements. The parties signed an
amendment to the power purchase agreement on January 14, 1999 which, in
part, provides that either party may terminate the agreement if the PUC
does not issue an order within eighteen (18) months (extended from twelve
(12) months originally in the agreement) from the submission of the
application. A schedule has not yet been set for the PUC proceeding. The
parties are scheduled to submit their proposed prehearing orders on January
19, 1999, and the PUC will then set the issues and schedule of proceedings.
Management expects that the schedule set by the PUC will provide the PUC
with the opportunity to issue a decision within the six-month extension
period, which ends July 16, 1999.
KCP complaint. In January 1996, the PUC ordered HELCO to continue in good
-------------
faith to negotiate a power purchase agreement with KCP. In May 1997, KCP
filed a motion for unspecified "sanctions" against HELCO for allegedly
failing to negotiate in good faith. In June 1997, KCP filed a motion asking
the PUC to designate KCP's facility as the next generating unit on the
HELCO system and to determine the "allowable cost" which would be payable
by HELCO to KCP. HELCO filed memoranda in opposition to KCP's motions. An
evidentiary hearing was held in August 1997. KCP filed two motions, which
HELCO also opposed, to supplement the record. The PUC issued an Order in
June 1998 which denied all of KCP's pending motions; provided rulings
and/or guidance on certain avoided cost and contract issues; directed HELCO
to prepare an updated avoided cost calculation, which includes the Encogen
agreement; and directed HELCO and KCP to resume contract negotiations.
HELCO resumed negotiations with KCP in compliance with the Order and filed
a motion for partial reconsideration with respect to one avoided cost
issue. The PUC granted HELCO's motion and modified its order in July 1998.
HCPC complaint. In April 1997, HCPC filed a complaint against HELCO with
--------------
the PUC, requesting an immediate hearing on HCPC's offer for a new 20-year
power purchase contract for its existing facility, which is proposed to be
expanded from 22 MW to 32 MW. HCPC's existing power purchase agreement is
scheduled to terminate at the end of 1999. The PUC converted the HCPC
complaint into a purchased power contract negotiation proceeding. HCPC
submitted a new proposal in the proceeding in February 1998 for a 30-year
contract. An evidentiary hearing, which was limited to three issues
affecting the calculation of avoided costs, including which of HELCO's
planned unit additions could be deferred or displaced by a new power
purchase agreement (PPA) with HCPC, was held in April 1998. On November 25,
1998, the Public Utilities Commission (PUC) issued a Decision and Order in
the HCPC complaint docket. The Decision and Order states that (1) "whether
the next immediate unit is ultimately provided by Encogen at Hamakua or
HELCO at Keahole, HCPC can negotiate to provide the increment of power
following the next immediate unit", and "HELCO's sunk and parallel planning
costs for
8
<PAGE>
CT-4 and CT-5 will not be part of the avoided cost calculation", and (2)
the reconductoring of a transmission line to accept HCPC's proposed 32 MW
would be of system-wide benefit, and the cost would not be included in the
avoided cost calculation. The decision also addressed a system-modeling
issue, and requires that the avoided cost calculation be based on the same
assumptions used in the last (April 1998) avoided cost calculation. The PUC
directed that HCPC and HELCO continue to negotiate a power purchase
agreement and by February 1, 1999 submit to the PUC either a finalized
agreement or reports informing the PUC of the matters preventing the
finalization of an agreement. HELCO has been complying with the decision
with regard to the avoided cost calculations and the resumption of contract
negotiations with HCPC.
Management cannot determine at this time whether the PUC will approve the
Encogen power purchase agreement or whether the negotiations with KCP or HCPC or
related PUC proceedings will result in the execution and/or PUC approval of a
power purchase agreement or impact management's plans with regard to
installation of HELCO's generating units at the Keahole power plant site.
BLNR petition. On August 5, 1998, the Keahole Defense Coalition filed with the
- --------------
BLNR a Petition for Declaratory Ruling under Section 91-8, Hawaii Revised
Statutes. The petition alleges that all conditions in Hawaii Administrative
Rules 13-2-21 apply to HELCO's default entitlement to use its Keahole site, that
the letter issued to HELCO by the DLNR in January 1998 was erroneous because it
failed to incorporate all conditions applicable to the existing permits, and
that the DOH issued three separate Notices of Violation (NOVs) to HELCO in 1992
and 1998 for violation of clean air rules, which NOVs constitute violations
under the existing permits and render such permits null and void. The petition
requests that the BLNR commence a contested case on the petition; that the BLNR
determine that HELCO has violated the terms of its existing conditional use
permits, causing such permits to be null and void; and that the BLNR determine
that HELCO has violated the conditions applicable to its default entitlement,
such that HELCO should be enjoined from using the Keahole property under such
default entitlement. The BLNR requested that each of the parties submit
statements of position on the issues and HELCO filed its statement in October
1998. The parties have since filed responsive submissions as well. The matter
has not yet been set before BLNR for a determination of whether a hearing will
be held.
Complaint and motion for temporary restraining order. On August 5, 1998, KDC
- -----------------------------------------------------
filed in the Third Circuit Court of the State of Hawaii a Complaint and Motion
for Temporary Restraining Order and Preliminary Mandatory Injunction against
HELCO and the Chief Engineer, Department of Public Works, County of Hawaii, and
on August 6, 1998, filed an amended complaint. The complaint and amended
complaint do not identify a cause of action, but allege that the City Engineer
issued eight building permits to HELCO for the expansion of the Keahole
Generating Station without requiring HELCO to obtain a final Covered Source
Permit as a precondition to construction on the belief that the DOH and the EPA
had authorized certain construction activities. The complaints call for the
suspension and revocation of the eight building permits and an injunction to
prevent further construction by HELCO. The motion calls for the Court to mandate
that the Chief Engineer suspend or revoke certain building permits for
structures, improvements and facilities which are directly or solely associated
with or which are of a permanent nature aimed at completing CT-4, CT-5 and ST-7
and enjoin HELCO from construction at Keahole while the permits are suspended or
revoked.
The Court issued a temporary restraining order in September 1998. However, HELCO
obtained eight new building permits and the old permits were voided. HELCO then
moved to dismiss the case for mootness and, on November 16, 1998, the Court
issued a minute order granting the motion to dismiss and denying plaintiff's
request for attorneys fees. The final order granting the motion was filed on
December 24, 1998.
9
<PAGE>
DOH Notice of Violation. In July 1998, the DOH issued a Notice of Violation
- -----------------------
(NOV) to HELCO for items allegedly constituting unauthorized construction
activity at the Keahole Generating Station prior to receipt of an effective PSD
air permit for CT-4 and CT-5. The NOV required HELCO to immediately halt
construction activities on pipe rack foundations, a retaining wall and an
oil/water separator, and imposed a fine of $48,800. HELCO complied with the stop
work order on the designated items and paid the fine.
EPA Notice of Violation. In September 1998, the EPA issued a NOV to HELCO
- -----------------------
stating that HELCO violated the Hawaii State Implementation Plan by commencing
construction activities at the Keahole generating station without first
obtaining a final air permit. By law, 30 days after the NOV, the EPA may issue
an Order requiring compliance with applicable laws, assessing penalties and/or
commencing a civil action seeking an injunction; however, no Order has yet been
issued. HELCO has put the EPA on notice that certain construction activities not
affected by the NOV are continuing, but has halted work on other construction
activities at Keahole until otherwise approved by the EPA or until the final air
permit is received.
Costs incurred. As of December 31, 1998, HELCO's costs incurred in its efforts
- --------------
to put CT-4 and CT-5 into service amounted to $74.9 million, including
approximately $30.1 million for equipment and material purchases, approximately
$23.3 million for planning, engineering, permitting, site development and other
costs and approximately $21.5 million for AFUDC accrued through November 30,
1998, after which HELCO stopped accruing AFUDC (see discussion under "PSD
Permit" above). If it becomes probable that CT-4 and/or CT-5 will not be
installed, whether as a result of the delay in receiving the PSD permit or other
reasons, HELCO may be required to write-off a material portion of the costs
incurred in its efforts to put its Keahole CT-4 and CT-5 units into service.
Contingency planning. In June 1995, HELCO filed with the PUC its generation
- --------------------
resource contingency plan detailing alternatives and mitigation measures to
address the delays that have occurred in obtaining the permits necessary to
construct its combined-cycle unit at Keahole. Actions under the plan have helped
HELCO maintain its reserve margin and reduce the risk of near-term capacity
shortages. In January 1996, the PUC opened a proceeding to evaluate HELCO's
contingency resource plan and HELCO's efforts to insure system reliability.
HELCO has filed reports with the PUC from time to time updating the contingency
plan and the status of the implementation of the plan.
HELCO rate request
In March 1998, HELCO filed a request to increase rates 11.5%, or $17.3 million
in annual revenues, based on a 1999 test year and a 12.5% return on average
common equity (ROACE), primarily to recover costs relating to two power
generation projects--an agreement to buy power from Encogen and the cost of
adding CT-4 and CT-5 at HELCO's Keahole power plant. The Encogen agreement has
been submitted to the PUC for approval. Depending on the EAB's decision with
respect to the motions for reconsideration of its November 25, 1998 Order (see
"HELCO power situation" above) and future developments with respect to the
Encogen power purchase agreement, HELCO's test year 1999 rate increase
application may be withdrawn, in which case a new application will be filed
closer to the time when the new generation facilities are expected to be
completed.
10
<PAGE>
Maui Electric Company, Limited (MECO) rate request
In January 1998, MECO filed a request to increase rates by 15.3%, or $22.4
million in annual revenues, based on a 12.75% ROACE and a 1999 test year,
primarily to recover the costs related to the addition of unit M17 in late 1998.
To expedite the rate case proceedings, in October 1998, MECO and the Consumer
Advocate negotiated a compromise agreement which, if accepted by the PUC, will
resolve most of the issues raised by the Consumer Advocate. MECO's final
position in the case (which incorporates the compromise agreement) is a
requested increase of $16.4 million in annual revenues, or 11.9%, based on a
12.75% ROACE.
MECO received an interim decision and order from the PUC on December 28, 1998.
The order authorizes an interim increase of $11.7 million in annual revenues, or
8.5%, effective January 1, 1999. The order is based on a ROACE of 11.12%
because it was the ROACE authorized in MECO's previous rate case. Revenue
amounts recorded under PUC approved interim rate adjustments are subject to
refund, with interest, upon the final decision on the docket.
Issuance of trust preferred securities and redemption of preferred stock
On December 15, 1998, HECO Capital Trust II, a grantor trust and wholly owned
subsidiary of HECO, issued and sold, in an underwritten registered public
offering, 2 million of its HECO-obligated 7.30% Cumulative Quarterly Income
Preferred Securities, Series 1998, with an aggregate liquidation value of $50
million (the Securities). The Securities were sold pursuant to an Underwriting
Agreement dated December 9, 1998 among HECO, MECO, HELCO, the Trust and the
several Underwriters named therein. The Registration Statement on Form S-3 (File
Nos. 333-65881, 333-65881-01, 333-65881-02 and 333-65881-03) filed by HECO,
MECO, HELCO and the Trust with the Securities and Exchange Commission with
respect to the Securities (the Registration Statement) was declared effective
under the Securities Act of 1933 on December 8, 1998.
On December 15, 1998, HECO, HELCO and MECO issued a notice that on January 15,
1999, they would redeem all outstanding shares of eleven series of their
preferred stock, representing a total par value of approximately $47 million. On
January 15, 1999, HECO redeemed its Series M 8.05%, Series Q 7.68% and Series R
8.75% Cumulative Preferred Stock; MECO redeemed its Series A 8.0%, Series B
8.875%, Series D 8.75% and Series G 8.50% Preferred Stock; and HELCO redeemed
its Series A 8.875%, Series D 12.75%, Series E 12.25% and Series F 8.50%
Preferred Stock.
11
<PAGE>
Item 7. Exhibits
The following documents are hereby being filed as part of this Current Report on
Form 8-K in the final form delivered in connection with the offer and sale of
the Securities (the exhibit number designations denote the exhibit number
assigned to the form or previous version of such documents included as exhibits
to the Registration Statement):
<TABLE>
<S> <C>
Exhibit 1 Underwriting Agreement for offering of QUIPS.
Exhibit 4(c) Amended and Restated Trust Agreement used in connection with the
issuance of QUIPS by HECO Capital Trust II.
Exhibit 4(d) HECO Junior Indenture with the Bank of New York, as Trustee, used
in connection with the issuance of HECO QUIDS.
Exhibit 4(e) Certificate No. TP-1 issued to Cede & Co. representing the QUIPS.
Exhibit 4(g) Trust Guarantee Agreement between The Bank of New York, as Trust
Guarantee Trustee, and HECO.
Exhibit 4(h) Subsidiary Junior Indenture with The Bank of New York, as Trustee,
used in connection with issuance of MECO QUIDS (and in the form
used for the HELCO QUIDS) and Subsidiary Guarantees.
Exhibit 4(i) Expense Agreement among HECO Capital Trust II, HECO, MECO and
HELCO.
Exhibit 4(j) Certificate No. TC-1 issued to HECO representing the Trust Common
Securities of HECO Capital Trust II.
</TABLE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrants have duly caused this report to be signed on their behalf by the
undersigned thereunto duly authorized. The signature of the undersigned
companies shall be deemed to relate only to matters having reference to such
companies and any subsidiaries thereof.
<TABLE>
<S> <C>
HAWAIIAN ELECTRIC INDUSTRIES, INC. HAWAIIAN ELECTRIC COMPANY, INC.
(Registrant) (Registrant)
/s/ Curtis Y. Harada /s/ Ernest T. Shiraki
- ------------------------------------- ------------------------------------
Curtis Y. Harada Ernest T. Shiraki
Controller Controller
(Principal Accounting Officer of HEI) (Principal Accounting Officer of HECO)
Date: January 19, 1999 Date: January 19, 1999
</TABLE>
12
<PAGE>
EXHIBIT 1
2,000,000 Preferred Securities
HECO CAPITAL TRUST II
7.30% Cumulative Quarterly Income Preferred Securities, Series 1998 ("QUIPS")
(Liquidation Preference $25 per QUIPS)
fully and unconditionally guaranteed, as set forth herein, by
HAWAIIAN ELECTRIC COMPANY, INC.
UNDERWRITING AGREEMENT
----------------------
December 9, 1998
Goldman, Sachs & Co.
PaineWebber Incorporated
As representatives of the several
Underwriters named in Schedule I hereto
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Ladies and Gentlemen:
The undersigned, HECO Capital Trust II (the "Trust"), a statutory
business trust created under the Business Trust Act of the State of Delaware
(Title 12, Chapter 38 of the Delaware Code, 12 Del. C. Section 3801 et seq.)
(the "Delaware Act"), proposes to issue and sell to the several underwriters
named in Schedule I hereto (the "Underwriters," which term, when the context
permits, shall also include any underwriters substituted as hereinafter in
Section 11 hereof provided), for whom you are acting as representatives (in such
capacity, you shall hereinafter be referred to as the "Representatives"),
2,000,000 of its 7.30% Cumulative Quarterly Income Preferred Securities, Series
1998 (liquidation preference $25 per preferred security), representing preferred
undivided beneficial interests in the assets of the Trust (the "Trust Preferred
Securities"), as follows:
__________________________
(SM) QUIPS is a servicemark of Goldman, Sachs & Co.
<PAGE>
SECTION 1. Purchase and Sale. (a) On the basis of the
-----------------
representations and warranties herein contained, and subject to the terms and
conditions herein set forth, the Trust shall issue and sell to each of the
Underwriters named in Schedule I hereto, and each Underwriter shall purchase
from the Trust at the time and place herein specified, severally and not
jointly, the number of Trust Preferred Securities set forth opposite the name of
such Underwriter in Schedule I hereto at a purchase price of $25.00 per
Preferred Security.
(b) Hawaiian Electric Company, Inc. ("HECO" and, together with the
Trust, the "Offerors"), a corporation incorporated under the laws of the Kingdom
of Hawaii, (i) agrees to issue to the Trust the HECO Debentures and the
Guarantees (each as defined herein) concurrently with the issue and sale of the
Trust Preferred Securities as contemplated herein and (ii) guarantees the timely
performance by each of the Trust and the Subsidiaries (as defined herein) of its
obligations under this Section 1. Maui Electric Company, Limited ("MECO"), a
corporation incorporated under the laws of the Territory of Hawaii, agrees to
issue to the Trust the MECO Debentures (as defined herein) concurrently with the
issue and sale of the Trust Preferred Securities as contemplated herein. Hawaii
Electric Light Company, Inc. ("HELCO" and, together with MECO, the
"Subsidiaries" and, together with HECO and MECO, the "Companies"), a corporation
incorporated under the laws of the Republic of Hawaii, agrees to issue to the
Trust the HELCO Debentures (as defined herein) concurrently with the issue and
sale of the Trust Preferred Securities as contemplated herein. The Trust agrees
to purchase Debentures (as defined herein) with the proceeds of the Trust
Securities (as defined herein) as contemplated herein.
(c) Because the proceeds of the sale of the Trust Preferred
Securities, together with the proceeds from the sale by the Trust to HECO of the
Common Securities (as defined herein), will be used to purchase the Debentures,
HECO hereby agrees to pay on the Closing Date (as defined herein) to Goldman,
Sachs & Co., for the accounts of the several Underwriters, as compensation for
their arranging the investment therein of such proceeds, an amount equal to
$.7875 per Preferred Security (or $1,575,000 in the aggregate).
SECTION 2. Description of Trust Preferred Securities. (a) The
-----------------------------------------
Trust Preferred Securities will be guaranteed, to the extent of funds held by
the Trust, by HECO with respect to distributions and payments upon liquidation,
redemption and otherwise (the "Trust Guarantee" and, together with the
Subsidiary Guarantees (as defined herein), the "Guarantees") pursuant to, and to
the extent set forth in, the Trust Guarantee Agreement dated as of December 1,
1998 between The Bank of New York, as trustee (the "Trust Guarantee Trustee"),
and HECO (the "Trust Guarantee Agreement"). Under an Expense Agreement among the
Companies and the Trust dated as of December 1, 1998 (the "Expense Agreement"),
the Companies will agree, for the benefit of each person or entity to whom the
Trust becomes indebted or liable (other than the holders of the Trust
Securities), to pay any indebtedness, expenses or liabilities of the Trust,
subject to certain exceptions therein.
(b) The proceeds from the sale of the Trust Preferred Securities will
be combined with the proceeds from the sale by the Trust to HECO of its common
securities representing undivided beneficial interests in the assets of the
Trust (the "Trust Common Securities" and, together with the Trust Preferred
Securities, the "Trust Securities") and will be used by the Trust
-2-
<PAGE>
to purchase (i) $31,546,400 principal amount of 7.30% Junior Subordinated
Deferrable Interest Debentures, Series 1998 issued by HECO (the "HECO
Debentures" and, together with the Substituted HECO Debentures (as defined
herein) and the Guarantees, the "HECO Securities"), (ii) $10,000,000 principal
amount of 7.30% Junior Subordinated Deferrable Interest Debentures, Series 1998
issued by MECO (the "MECO Debentures" and, together with the HELCO Debentures,
the "Subsidiary Debentures") and (iii) $10,000,000 principal amount of 7.30%
Junior Subordinated Deferrable Interest Debentures, Series 1998 issued by HELCO
(the "HELCO Debentures" and, together with the HECO Debentures and the MECO
Debentures, the "Debentures"). The Debentures will mature on December 15,2028;
provided, however, that, at the option of HECO pursuant to the HECO Indenture
(as defined herein), the date of maturity of the Debentures, and any Substituted
HECO Debentures, may be shortened to a date not earlier than December 15, 2003
or extended to a date not later than December 15, 2047. The Subsidiary
Debentures will be fully, irrevocably and unconditionally guaranteed by HECO on
a subordinated basis (the "Subsidiary Guarantees") as set forth in the
Subsidiary Indentures (as defined herein).
(c) The HECO Debentures will be issued pursuant to a Junior Indenture
dated as of December 1, 1998, between The Bank of New York, as trustee (the
"Debenture Trustee"), and HECO (the "HECO Indenture"). The MECO Debentures will
be issued pursuant to a Junior Indenture dated as of December 1, 1998, among the
Debenture Trustee, MECO and HECO (the "MECO Indenture" and, together with the
HELCO Indenture (as defined herein), the "Subsidiary Indentures"). The HELCO
Debentures will be issued pursuant to a Junior Indenture dated as of December 1,
1998, among the Debenture Trustee, HELCO and HECO (the "HELCO Indenture" and,
together with the HECO Indenture and the MECO Indenture, the "Indentures"). Upon
the occurrence of an Early Dissolution Event (as defined in the Trust Agreement
(as defined herein)) specified in Section 8.02(a), (b) or (d) of the Trust
Agreement, provided that any necessary approval of the Public Utilities
Commission of the State of Hawaii (the "PUC") shall have been obtained, HECO
will issue to the Trust, pursuant to and in accordance with the HECO Indenture
and in exchange for the Subsidiary Debentures then held by the Trust, additional
7.30% Junior Subordinated Deferrable Interest Debentures, Series 1998 in the
aggregate principal amount of such Subsidiary Debentures (the "Substituted HECO
Debentures" and, together with the HECO Debentures, on or after the distribution
thereof in accordance with the terms of the Trust Agreement, the "Distributable
HECO Debentures").
(d) The Trust Securities will be issued pursuant to an Amended and
Restated Trust Agreement of the Trust dated as of December 1, 1998 among HECO,
as depositor, the Administrative Trustees (as defined herein), The Bank of New
York, as property trustee (the "Property Trustee"), The Bank of New York
(Delaware), as Delaware trustee (the "Delaware Trustee"), and the holders, from
time to time, of undivided beneficial interests in the assets of the Trust (the
"Trust Agreement"). The Trust Preferred Securities and the HECO Securities are
referred to herein as the "Securities."
-3-
<PAGE>
SECTION 3. Representations and Warranties of the Companies and the
-------------------------------------------------------
Trust. Each of the Offerors jointly and severally, and each Subsidiary as to
- -----
itself but as to neither the Offerors nor the other Subsidiary, represents and
warrants to the several Underwriters, and covenants and agrees with the several
Underwriters, that:
(a) HECO is duly organized and validly existing as a corporation in
good standing under the laws of Hawaii and has the necessary corporate power and
authority to conduct the business that it is described in the Prospectus (as
defined herein) as conducting, to own and operate the properties owned and
operated by it in such business, to issue the HECO Securities, to enter into and
perform its obligations under this Underwriting Agreement, the Trust Agreement,
the Indentures, the Trust Guarantee Agreement, the Expense Agreement and the
HECO Securities, to purchase, own and hold the Trust Common Securities issued by
the Trust and to consummate the transactions herein and therein contemplated;
the only subsidiaries of HECO are the Subsidiaries, HECO Capital Trust I and the
Trust; each of MECO and HELCO is duly organized and validly existing as a
corporation in good standing under the laws of Hawaii and has the necessary
corporate power and authority to conduct the business that it is described in
the Prospectus as conducting, to own and operate the properties owned and
operated by it in such business, to issue the Subsidiary Debentures issued by
such Subsidiary, to enter into and perform its obligations under the Subsidiary
Indenture to which it is a party, the Expense Agreement and such Subsidiary
Debentures and to consummate the transactions herein and therein contemplated;
all of the issued and outstanding shares of common stock of the Subsidiaries
have been duly and validly issued and are fully-paid and non-assessable and are
directly owned by HECO, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity; and none of such common stock was
issued in violation of preemptive or similar rights of any securityholder of the
Subsidiaries.
(b) The Trust has been duly created and is validly existing as a
business trust in good standing under the Delaware Act, has the power and
authority to own its property, to conduct its business as described in the
Prospectus, to issue and sell the Trust Securities, to enter into and perform
its obligations under this Underwriting Agreement and the Trust Securities and
to consummate the transactions herein contemplated; the Trust has no
subsidiaries and is duly qualified to transact business and is in good standing
in each jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that the
failure to be so qualified or be in good standing would not have a material
adverse effect on the Trust; the Trust has conducted and will conduct no
business other than the transactions contemplated by this Underwriting Agreement
and described in the Prospectus; the Trust is not a party to or otherwise bound
by any agreement other than those described in the Prospectus, and is not a
party to any action, suit or proceeding of any nature; the Trust is not an
association taxable as a corporation for United States federal income tax
purposes; and the Trust is and will be treated as a consolidated subsidiary of
HECO pursuant to generally accepted accounting principles.
(c) The Offerors and the Subsidiaries have filed with the Securities
and Exchange Commission (the "Commission") a registration statement on Form S-3
(File Nos. 333-65881, 333-65881-01, 333-65881-02 and 333-65881-03) and a
Preliminary Prospectus (as defined
-4-
<PAGE>
herein) for the registration of the Securities under the Securities Act of 1933,
as amended (the "Securities Act"), and such registration statement, as amended,
has become effective under the Securities Act. The Offerors and the
Subsidiaries qualify for use of Form S-3 for the registration of the Securities.
Such registration statement, as amended at the time it (or the most recent post-
effective amendment thereto) became effective under the Securities Act,
including the information deemed to be part thereof pursuant to Rule 430A(b)
under the Securities Act, is hereinafter referred to as the "Registration
Statement." The prospectus constituting a part of the Registration Statement,
including the documents incorporated or deemed to be incorporated by reference
therein pursuant to Item 12 of Form S-3 under the Securities Act, in the form
transmitted for filing to the Commission pursuant to Rule 424(b)(1) or (b)(4)
under the Securities Act and as it may thereafter be amended or supplemented
pursuant to Section 6(d) hereof, is hereinafter referred to as the "Prospectus"
(except that if any revised prospectus shall be provided to the Underwriters by
the Offerors for use in connection with the offering of the Securities that
differs from the Prospectus transmitted for filing to the Commission pursuant to
Rule 424(b) under the Securities Act, the term "Prospectus" shall refer to such
revised prospectus from and after the time it is first provided to the
Underwriters for such use). For purposes hereof, "Preliminary Prospectus" shall
mean any preliminary prospectus included in the Registration Statement prior to
the time the Registration Statement became effective or that was transmitted for
filing to the Commission pursuant to Rule 424(a) under the Securities Act if
prior to the time the Registration Statement became effective or pursuant to
Rule 424(b) under the Securities Act if after the time the Registration
Statement became effective. All references in this Underwriting Agreement to
amendments or supplements to the Registration Statement or the Prospectus shall
be deemed to mean and include the filing of any document that is or is deemed to
be incorporated by reference therein pursuant to Item 12 of Form S-3 under the
Securities Act after the date hereof and prior to the completion of the
distribution of the Trust Preferred Securities.
(d) After the date hereof and during the time specified in Section
6(d) hereof, neither the Offerors nor the Subsidiaries will file any amendment
to the Registration Statement or amendment or supplement to the Prospectus,
without prior notice to the Underwriters and to Winthrop, Stimson, Putnam &
Roberts, counsel for the Underwriters ("Counsel for the Underwriters"), or any
such amendment or supplement to which Counsel for the Underwriters shall
reasonably object on legal grounds in writing.
(e) The Registration Statement, at the time it became effective under
the Securities Act, the Indentures, the Trust Agreement and the Trust Guarantee
Agreement, at such time, and any Preliminary Prospectus, when delivered to the
Underwriters for their use in marketing the Trust Preferred Securities, fully
complied, and the Prospectus, when delivered to the Underwriters for their use
in making confirmations of sales of the Trust Preferred Securities and at the
Closing Date, as it may then be amended or supplemented, will fully comply, in
all material respects with the applicable provisions of the Securities Act and
the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), and in
each case the rules and regulations of the Commission thereunder or pursuant to
such rules and regulations did or will be deemed to comply therewith. The
documents incorporated or deemed to be incorporated by reference in the
Prospectus pursuant to Item 12 of Form S-3, on the date filed with the
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), fully complied and will fully comply in all material respects
with the applicable provisions of the Exchange Act and the rules and regulations
of the Commission thereunder or pursuant to such rules and regulations did or
will be deemed to comply therewith. On the date the Registration Statement was
declared effective by the Commission under the Securities Act, the Registration
Statement did 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.
-5-
<PAGE>
At the time that any Preliminary Prospectus was delivered to the Underwriters
for their use in marketing the Trust Preferred Securities, such Preliminary
Prospectus did not contain any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading. At the
time the Prospectus is delivered to the Underwriters for their use in making
confirmations of sales of the Trust Preferred Securities and at the Closing
Date, the Prospectus, as it may then be amended or supplemented, will not
contain any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they are made, not misleading. The documents
incorporated or deemed to be incorporated by reference in the Prospectus
pursuant to Item 12 of Form S-3, on the date filed with the Commission pursuant
to the Exchange Act, did not and will not contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. The foregoing representations and warranties in this
Section 3(e) shall not apply to statements or omissions from the Registration
Statement or the Prospectus (i) made in reliance upon and in conformity with
written information furnished to the Offerors by any Underwriter through
Goldman, Sachs & Co. expressly for use therein which, for purposes of this
Underwriting Agreement, shall be deemed to consist of the second paragraph under
the table set forth under "Underwriting" in the Prospectus, the first two
sentences of the fifth paragraph under the table set forth under "Underwriting"
in the Prospectus and the sixth, seventh and eighth paragraphs under the table
set forth under "Underwriting" in the Prospectus (collectively, the "Underwriter
Information") and (ii) with respect to the statements of eligibility on Form T-1
filed as exhibits to the Registration Statement.
(f) The consolidated financial statements of the Companies
incorporated by reference in the Prospectus present fairly in all material
respects the financial position of the Companies as of the dates indicated and
the results of their operations for the periods specified; and such consolidated
financial statements have been prepared in conformity with generally accepted
accounting principles consistently applied in all material respects with respect
to the periods involved, except as may be noted therein and, in the case of
unaudited financial statements, subject to year-end and audit adjustments.
(g) The Trust Common Securities have been duly authorized by the
Trust Agreement and, when issued and delivered by the Trust to HECO against
payment therefor as described in the Registration Statement and the Prospectus,
will constitute validly issued undivided beneficial interests in the assets of
the Trust and will be entitled to the benefits of the Trust Agreement; the
issuance of the Trust Common Securities is not subject to preemptive or other
similar rights; at the Closing Date, all of the Trust Common Securities will be
directly owned by HECO free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity other than the lien of the indenture
securing HECO's first mortgage bonds; and the Trust Common Securities will
conform in all material respects to the description thereof contained in the
Prospectus.
(h) This Underwriting Agreement has been duly authorized, executed
and delivered by each of the Companies and the Trust.
-6-
<PAGE>
(i) The Trust Agreement has been duly qualified under the Trust
Indenture Act, has been duly authorized by HECO and, at the Closing Date, will
have been duly executed and delivered by HECO and each of the Administrative
Trustees and, assuming due authorization, execution and delivery of the Trust
Agreement by the Property Trustee and the Delaware Trustee, will constitute a
valid and binding instrument of HECO and the Administrative Trustees,
enforceable against HECO and the Administrative Trustees in accordance with its
terms, except as limited by applicable bankruptcy, insolvency, fraudulent
conveyance or transfer, reorganization or other similar laws affecting
creditors' rights and by general equitable principles (whether considered in a
proceeding in equity or at law); and the Trust Agreement will conform in all
material respects to the description thereof in the Prospectus.
(j) The Trust Guarantee Agreement has been duly qualified under the
Trust Indenture Act, has been duly authorized by HECO and, at the Closing Date,
will have been duly executed and delivered by HECO and, assuming due
authorization, execution and delivery of the Trust Guarantee Agreement by the
Trust Guarantee Trustee, will constitute a valid and binding instrument of HECO,
enforceable against HECO in accordance with its terms, except as limited by
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization or
other similar laws affecting creditors' rights and by general equitable
principles (whether considered in a proceeding in equity or at law); and the
Trust Guarantee and the Trust Guarantee Agreement will conform in all material
respects to the descriptions thereof contained in the Prospectus.
(k) The Trust Preferred Securities have been duly authorized by the
Trust Agreement and, on the Closing Date, will have been duly executed by more
than one Administrative Trustee and, when issued and delivered against payment
therefor in accordance with the provisions of this Underwriting Agreement and
the Trust Agreement, will constitute validly issued and (subject to the terms of
the Trust Agreement) fully paid and non-assessable undivided beneficial
interests in the assets of the Trust and will be entitled to the benefits of the
Trust Agreement; the issuance of the Trust Preferred Securities is not subject
to preemptive or other similar rights; holders of Trust Preferred Securities
will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware; and the Trust Preferred Securities
will conform in all material respects to the description thereof contained in
the Prospectus.
(l) Each of the Indentures has been duly qualified under the Trust
Indenture Act, has been duly authorized by HECO (as guarantor with respect to
the MECO Indenture and the HELCO Indenture) and, at the Closing Date, will have
been duly executed and delivered by HECO and, assuming due authorization,
execution and delivery of the Indentures by the Debenture Trustee, will
constitute a valid and binding instrument of HECO, enforceable against HECO in
accordance with its terms, except as limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization or other similar laws
affecting creditors' rights and by general equitable principles (whether
considered in a proceeding in equity or at law); and the HECO Indenture and the
Subsidiary Guarantees will conform in all material respects to the description
thereof contained in the Prospectus.
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(m) The Subsidiary Indenture to which each Subsidiary is a party has
been duly authorized by such Subsidiary and, at the Closing Date, will have been
duly executed and delivered by such Subsidiary and, assuming due authorization,
execution and delivery of such Subsidiary Indenture by the Debenture Trustee,
will constitute a valid and binding instrument of such Subsidiary, enforceable
against such Subsidiary in accordance with its terms, except as limited by
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization or
other similar laws affecting creditors' rights and by general equitable
principles (whether considered in a proceeding in equity or at law); and the
Subsidiary Indentures will conform in all material respects to the description
thereof contained in the Prospectus.
(n) The HECO Debentures have been duly authorized and, on the Closing
Date, will have been duly executed by HECO and, when authenticated in the manner
provided for in the HECO Indenture and delivered against payment therefor by the
Trust as described in the Prospectus, will constitute valid and binding
obligations of HECO, enforceable against HECO in accordance with their terms,
except as limited by applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization or other similar laws affecting creditors' rights and by general
equitable principles (whether considered in a proceeding in equity or at law),
and will be entitled to the benefits of such Indenture; and the HECO Debentures
will conform in all material respects to the description thereof contained in
the Prospectus.
(o) The Substituted HECO Debentures have been duly authorized by HECO
and, if and when approved by the PUC and then executed and authenticated in the
manner provided for in the HECO Indenture and delivered in exchange for the
Subsidiary Debentures as described in the Prospectus, will constitute valid and
binding obligations of HECO, enforceable against HECO in accordance with their
terms, except as limited by applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization or other similar laws affecting creditors' rights and
by general equitable principles (whether considered in a proceeding in equity or
at law), and will be entitled to the benefits of the HECO Indenture; and the
Substituted HECO Debentures will conform in all material respects to the
description thereof contained in the Prospectus.
(p) The Subsidiary Debentures issued by each Subsidiary have been
duly authorized and, on the Closing Date, will have been duly executed by such
Subsidiary and, when authenticated in the manner provided for in the applicable
Subsidiary Indenture and delivered against payment therefor by the Trust as
described in the Prospectus, will constitute valid and binding obligations of
such Subsidiary, enforceable against such Subsidiary in accordance with their
terms, except as limited by applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization or other similar laws affecting creditors' rights and
by general equitable principles (whether considered in a proceeding in equity or
at law), and will be entitled to the benefits of such Subsidiary Indenture; and
the Subsidiary Debentures will conform in all material respects to the
description thereof contained in the Prospectus.
(q) The Expense Agreement has been duly authorized by each Company
and, at the Closing Date, will have been duly executed and delivered by each
Company and will constitute a valid and binding instrument of each Company,
enforceable against such Company in accordance with its terms, except as limited
by applicable bankruptcy, insolvency, fraudulent
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conveyance, reorganization or other similar laws affecting creditors' rights and
by general equitable principles (whether considered in a proceeding in equity or
at law); and the Expense Agreement will conform in all material respects to the
description thereof contained in the Prospectus.
(r) T. Michael May, Paul A. Oyer and Lorie Ann Nagata, who are
administrative trustees (the "Administrative Trustees") under the Trust
Agreement, are officers of HECO and have been duly authorized by HECO to execute
and deliver the Trust Agreement.
(s) The Trust is not, and as a result of the offering and sale of the
Trust Preferred Securities and the application of the proceeds thereof as
described in the Prospectus, will not be an "investment company" or an entity
"controlled" by an "investment company" within the meaning of the Investment
Company Act of 1940, as amended (the "Investment Company Act").
(t) The Trust is not in violation of its Certificate of Trust filed
in the office of the Secretary of State of the State of Delaware on October 15,
1998 (the "Trust Certificate") or the Trust Agreement; the execution and
delivery by the Companies and the Trust of, and the performance by the Companies
and the Trust of their respective obligations under, this Underwriting
Agreement, the Securities, the Subsidiary Debentures, the Indentures, the Trust
Agreement, the Trust Guarantee Agreement, the Expense Agreement and the other
agreements and instruments contemplated hereby and thereby to which they are a
party do not and will not conflict with any existing law, court or
administrative regulation, decree or order to which any of the Companies or the
Trust is subject or result in a breach of or a default under any agreement,
indenture, mortgage, lease, deed or trust or other instrument to which it is a
party or by which it or its property is bound.
(u) Neither any Company nor the Trust will take or omit to take any
action the taking or omission of which will in any way cause or result in the
proceeds from the sale of the Trust Preferred Securities to be applied in a
manner other than as provided in the Trust Agreement, the Indentures, the Trust
Guarantee Agreement, the Expense Agreement and this Underwriting Agreement and
as described in the Prospectus.
(v) Except as set forth or contemplated in the Prospectus, as it may
then be amended or supplemented, each of the Companies possesses adequate
franchises, licenses, permits, and other rights to conduct its respective
businesses and operations as now conducted, without any known conflicts with the
rights of others, where the failure to possess such franchise, license, permit
or other right, or where such conflict, would have a material adverse effect on
the consolidated financial position, stockholder's equity or results of
operations of the Companies taken as a whole.
(w) To the knowledge of each of the Companies and the Trust, there is
no action, suit, proceeding or formal investigation at law or in equity or
before or by any governmental, regulatory or administrative agency pending or
threatened against the Companies or the Trust that would have a material adverse
effect on (i) the transactions contemplated by the Trust Agreement, the
Indentures, the Trust Guarantee Agreement, the Expense Agreement, this
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Underwriting Agreement or any agreement or instrument to which any of the
Companies or the Trust is a party and that are used or contemplated for use in
the consummation of the transactions contemplated hereby or thereby or (ii) the
validity or enforceability of the Securities, the Subsidiary Debentures, the
Trust Agreement, the Indentures, the Trust Guarantee Agreement, the Expense
Agreement or this Underwriting Agreement.
(x) The PUC has issued an order approving the issuance of the HECO
Securities (but not the Substituted HECO Debentures) by HECO and of the
Subsidiary Debentures by the Subsidiaries on terms not inconsistent with those
set forth in this Underwriting Agreement and described in the Prospectus and
such order is in full force and effect; and no approval of any other
governmental agency or public body is necessary in connection with the issuance
of the HECO Securities by HECO or the Subsidiary Debentures by the Subsidiaries,
other than such approvals, authorizations, registrations or qualifications as
may be required from the PUC with respect to the issuance by HECO of the
Substituted HECO Debentures, under blue sky or other state securities
laws or as have been obtained pursuant to the Securities Act, the Exchange Act
and the Trust Indenture Act.
(y) HECO is a holding company within the meaning of the Public
Utility Holding Company Act of 1935, as amended (the "Holding Company Act");
however, by virtue of having filed appropriate applications under Section
3(a)(2) of the Holding Company Act, HECO is exempt from all provisions
thereunder other than Section 9(a)(2) thereof, and will remain so exempt,
subject to future timely filings of annual exemption statements and such filings
as are required by Section 33 of the Holding Company Act with respect to
interests of HECO or any of its affiliates in any foreign utility company,
unless and except insofar as the Commission shall find such exemption
detrimental to the public interest or the interest of investors or consumers.
SECTION 4. Offering. The Offerors are advised by the
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Representatives that the Underwriters propose to make a public offering of the
Trust Preferred Securities as soon after the date hereof as in their judgment
the Underwriters deem advisable. The Offerors are further advised by the
Representatives that the Trust Preferred Securities will be offered to the
public at the initial public offering price specified in the Prospectus.
SECTION 5. Time and Place of Closing; Certificates. Delivery of a
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certificate representing the Trust Preferred Securities and payment of the
purchase price therefor by wire transfer of immediately available funds shall be
made through the facilities of The Depository Trust Company, New York, New York
("DTC"), pursuant to such arrangements and instructions as shall be agreed upon
by the Offerors and the Representatives at 10:00 A.M. (Eastern time) on
December 15, 1998, or at such other time on the same or such other day as shall
be agreed upon by the Offerors and the Representatives, or as may be established
in accordance with Section 11 hereof. The time and date of such delivery and
payment are herein called the "Closing Date."
A certificate representing the Trust Preferred Securities shall be in
definitive form and registered in the name of Cede & Co., DTC's nominee. For
purposes of this Underwriting Agreement, "business day" means any day on which
the New York Stock Exchange, Inc. (the "NYSE") is open for bidding.
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On the Closing Date, HECO will pay, or cause to be paid, the
compensation payable at such time to the Underwriters pursuant to Section 1(c)
hereof by wire transfer in immediately available funds to an account designated
by Goldman, Sachs & Co., for the accounts of the several Underwriters.
SECTION 6. Covenants of the Companies and the Trust. Each of the
----------------------------------------
Offerors jointly and severally, and each Subsidiary as to itself but as to
neither the Offerors nor the other Subsidiary, covenants and agrees with the
several Underwriters that:
(a) Not later than the Closing Date, HECO will deliver to the
Representatives a copy of the Registration Statement in the form that it (or the
most recent post-effective amendments thereto) became effective under the
Securities Act or a conformed copy thereof, certified by an officer of HECO to
be in such form.
(b) The Offerors will deliver to the Underwriters as many copies of
the Prospectus (and any amendments or supplements thereto) as the Underwriters
may reasonably request.
(c) The Offerors will cause the Prospectus to be transmitted for
filing to the Commission pursuant to and in compliance with Rule 424(b) under
the Securities Act and will advise the Representatives promptly of the issuance
of any stop order under the Securities Act with respect to the Registration
Statement or the institution of any proceedings therefor of which any of the
Companies or the Trust has received notice. Each of the Companies and
the Trust will use reasonable efforts to prevent the issuance of any such stop
order and to secure the prompt removal thereof if issued.
(d) During such period of time as the Underwriters are required by law
to deliver a prospectus relating to any of the Securities, if any event relating
to or affecting the Companies or the Trust, or of which the Companies or the
Trust are advised by the Representatives in writing, occurs that in the opinion
of the Representatives and HECO should be set forth in a supplement or amendment
to the Prospectus in order to make the Prospectus not misleading in the light of
the circumstances when it is delivered to a purchaser of any of the Securities,
or if it is necessary in the opinion of the Representatives and HECO at any such
time to amend the Registration Statement or amend or supplement the Prospectus
in order to comply with the requirements of the Securities Act, the Exchange Act
or the Trust Indenture Act or, in each case, the rules and regulations of the
Commission thereunder, the Trust and the Companies will amend or supplement the
Prospectus so that, as amended or supplemented, it will not contain any untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances when the
Prospectus is delivered to a purchaser, not misleading or amend the Registration
Statement or amend or supplement the Prospectus so that, as amended or
supplemented, the Registration Statement or the Prospectus will comply with such
requirements.
(e) HECO will, on behalf of the Trust, make generally available to
the Trust's security holders, as soon as practicable, an earning statement
(which need not be audited) covering a period of at least twelve months
beginning after the "effective date of the registration statement" within the
meaning of Rule 158 under the Securities Act, which earning statement
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shall be in such form, and be made generally available to security holders in
such a manner, as to meet the requirements of the last paragraph of Section
11(a) of, and Rule 158 under, the Securities Act.
(f) The Companies and the Trust will furnish such proper information
as may be lawfully required, and will otherwise cooperate with the Underwriters,
to qualify the Trust Preferred Securities and, if applicable, the Distributable
HECO Debentures for offer and sale under the state securities or blue sky laws
of such jurisdictions as the Representatives may reasonably designate, provided
that neither the Companies nor the Trust shall be required to qualify as a
foreign corporation or dealer in securities or to file any general consents to
service of process under the laws of any jurisdiction.
(g) HECO will, except as herein provided, pay all fees, expenses and
taxes incident to the performance of each Company's and the Trust's obligations
under this Underwriting Agreement, including, but not limited to, (i) the
preparation and filing of the Registration Statement and any post-effective
amendment thereto, (ii) the printing, issuance and delivery of the certificate
representing the Trust Preferred Securities to the Underwriters, (iii) the
qualification of the Trust Preferred Securities and, if applicable, the
Distributable HECO Debentures under the state securities or blue sky laws of
various jurisdictions in accordance with the provisions of Section 6(f) hereof,
including the reasonable fees and disbursements of Counsel for the Underwriters
in connection therewith and with the preparation of any blue sky survey (and any
supplement thereto) relating to any of the Securities up to a maximum of
$15,000, (iv) the printing and delivery to the Underwriters of reasonable
quantities of copies of the Registration Statement, any blue sky survey (and any
supplement thereto) relating to any of the Securities, any Preliminary
Prospectus and the Prospectus and any amendment or supplement thereto, (v) the
ratings of the Trust Preferred Securities and, if applicable, the Distributable
HECO Debentures by one or more nationally recognized statistical rating
agencies, (vi) the listing of the Trust Preferred Securities on the NYSE and, if
applicable, the Distributable HECO Debentures on the NYSE, or such other
exchange or other organization, and the registration thereof under the Exchange
Act in accordance with Section 6(i) hereof and (vii) all other costs and
expenses incident to the performance of its obligations hereunder that are not
otherwise specifically provided for in this Section 6(g). If this Underwriting
Agreement shall be terminated in accordance with the provisions of Section 7
(other than paragraph (l) thereof) or 8 hereof, the Companies and the Trust will
reimburse the Underwriters for all out-of-pocket expenses, including fees and
disbursements of Counsel for the Underwriters, reasonably incurred by the
Underwriters in contemplation of the performance of this Underwriting Agreement.
Neither the Companies nor the Trust shall in any event be liable to the
Underwriters for damages on account of loss of anticipated profits.
(h) Neither any of the Companies nor the Trust will offer, sell,
contract to sell or otherwise dispose of any beneficial interests in the assets
of the Trust, or any preferred securities or any other securities of the Trust
or the Companies that are substantially similar to the Trust Preferred
Securities, including any guarantee of such securities, or any securities
convertible into or exchangeable for or that represent the right to receive
securities, preferred securities or any such substantially similar securities of
either the Companies or the Trust, except for the Securities, without the prior
written consent of Goldman, Sachs & Co. until the earlier to occur of (i) 30
days after the Closing Date and (ii) the date
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of the termination of the trading restrictions on the Trust Preferred
Securities, as determined by the Underwriters.
(i) The Trust and the Companies will use their best efforts to cause
the Trust Preferred Securities to be duly authorized for listing on the NYSE,
subject to notice of issuance, and to be registered under the Exchange Act; and,
upon any distribution of the Distributable HECO Debentures to holders of the
Trust Preferred Securities, HECO will use its best efforts to have the
Distributable HECO Debentures listed on the NYSE, or such other exchange or
other organization on which the Trust Preferred Securities are then listed, and
to have the Distributable HECO Debentures registered under the Exchange Act.
SECTION 7. Conditions of Underwriters' Obligations. The obligations
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of the several Underwriters to purchase and pay for the Trust Preferred
Securities shall be subject to the accuracy on the date hereof and on the
Closing Date of the representations and warranties made herein on the part of
the Companies and the Trust and of any certificates furnished by the Companies
and the Trust on the Closing Date and to the following conditions:
(a) The Prospectus shall have been transmitted for filing to the
Commission in the manner and within the time period required by Rule 424(b)
under the Securities Act.
(b) No stop order suspending the effectiveness of the Registration
Statement shall be in effect at or prior to the Closing Date; no proceedings for
such purpose shall be pending before, or, to the knowledge of the Companies, the
Trust or the Underwriters, threatened by, the Commission on the Closing Date.
(c) At the Closing Date, the Representatives shall have received an
opinion of Goodsill Anderson Quinn & Stifel, counsel for the Companies and the
Trust, dated the Closing Date, to the effect that:
(i) HECO has been duly incorporated under the laws of the Kingdom
of Hawaii, is validly existing as a corporation in good standing under the
laws of the State of Hawaii and has the corporate power and authority to
carry on the business stated in the Prospectus as being conducted by it;
and all shares of its issued and outstanding common stock have been duly
and validly issued and are fully paid and non-assessable;
(ii) MECO and HELCO are corporations duly incorporated under the
laws of the Territory of Hawaii and the Republic of Hawaii, respectively,
and are validly existing and in good standing under the laws of the State
of Hawaii and have the corporate power and authority to carry on the
business as stated in the Prospectus as being conducted by them; and all of
the issued and outstanding shares of common stock of the Subsidiaries have
been duly and validly issued and are fully-paid and non-assessable;
(iii) other than litigation and proceedings referred to in the
Prospectus, to the best of such counsel's knowledge, (A) the Companies are
not engaged in, or threatened with, any litigation and (B) there are no
governmental proceedings, or any governmental proceedings threatened, with
respect to any of the Companies or their property, that, in
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the case of either clause (A) or (B) above, such counsel (or other counsel
who have permitted such counsel to rely on their opinions or reports as to
litigation or proceedings that are not being principally handled by such
counsel) has concluded is reasonably expected to have a material adverse
effect on the Companies taken as a whole;
(iv) HECO is the record holder of all outstanding common stock of
the Subsidiaries, free and clear of any perfected encumbrance or security
interest;
(v) the PUC has issued an order approving the issuance of the HECO
Securities (but not the Substituted HECO Debentures) by HECO and of the
Subsidiary Debentures by the Subsidiaries on terms not inconsistent with
those set forth in this Underwriting Agreement and described in the
Prospectus and, to the best of such counsel's knowledge, such order remains
in full force and effect on the date of such opinion; and no approval of
any other governmental agency or public body is required in connection with
the issuance of the HECO Securities by HECO or the Subsidiary Debentures by
the Subsidiaries, other than such approvals, authorizations, registrations
or qualifications as may be required from the PUC with respect to the
issuance by HECO of the Substituted HECO Debentures, under blue sky or
other state or foreign securities laws (as to which such counsel has not
been requested to and does not express any opinion) or as have been
obtained under the Securities Act, the Exchange Act or the Trust Indenture
Act;
(vi) HECO is a holding company within the meaning of the Holding
Company Act; however, by virtue of having filed appropriate applications
under Section 3(a)(2) of the Holding Company Act, HECO is exempt from all
provisions thereunder other than Section 9(a)(2) thereof, and will remain
so exempt, subject to future timely filings of annual exemption statements
and such filings as are required by Section 33 of the Holding Company Act
with respect to interests of HECO or any of its affiliates in any foreign
utility company, unless and except insofar as the Commission shall find
such exemption detrimental to the public interest or the interest of
investors or consumers;
(vii) the Trust is not, and as a result of the offering and sale of
the Trust Preferred Securities and the application of the proceeds thereof
as described in the Prospectus, will not be an "investment company" or an
entity "controlled" by an "investment company" within the meaning of the
Investment Company Act;
(viii) the Registration Statement, at the time it was declared
effective by the Commission under the Securities Act, and the Prospectus,
at the time it was transmitted for filing to the Commission pursuant to
Rule 424(b) under the Securities Act, complied as to form in all material
respects with the Securities Act and the Trust Indenture Act and in each
case the rules and regulations of the Commission thereunder; each document
incorporated by reference in the Prospectus as originally filed pursuant to
the Exchange Act complied as to form when so filed in all material respects
with the Exchange Act and the rules and regulations of the Commission
thereunder; and, to the best of such counsel's knowledge, the Registration
Statement has become, and on the Closing Date is, effective under the
Securities Act and no proceedings for a stop order with respect thereto are
threatened or pending under Section 8 of the Securities Act;
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(ix) nothing has come to the attention of such counsel to cause them
to believe that the Registration Statement, at the time it was declared
effective by the Commission under the Securities Act, 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 not
misleading or that the Prospectus, at the time it was transmitted for
filing to the Commission pursuant to Rule 424(b) under the Securities Act
or on the Closing Date, included or includes any untrue statement of a
material fact or omitted or omits to state a material fact necessary in
order to make the statements made therein, in the light of the
circumstances under which they were made, not misleading;
(x) the statements summarizing the provisions of the Securities and
the Subsidiary Debentures (other than any such statements describing DTC's
book-entry system), the Indentures, the Trust Agreement, the Guarantees and
the Trust Guarantee Agreement and the Expense Agreement, and the statements
under "Hawaiian Electric Company, Inc. and Subsidiaries" relating to the
Companies and involving matters of law or legal conclusions, contained in
the Prospectus are accurate summaries of such documents and matters in all
material respects;
(xi) this Underwriting Agreement has been duly authorized by all
necessary corporate action of and duly executed and delivered by HECO, on
behalf of itself and as depositor under the Trust Agreement, and the
Subsidiaries; and the Trust Preferred Securities have been duly executed
and delivered by more than one Administrative Trustee;
(xii) the Trust Agreement has been duly authorized by all necessary
corporate action of HECO and duly executed and delivered by HECO and the
Administrative Trustees and, to such counsel's knowledge, has been duly
qualified under the Trust Indenture Act;
(xiii) the Trust Guarantee Agreement has been duly authorized by
all necessary corporate action of and duly executed and delivered by HECO
and constitutes a valid and binding instrument of HECO, enforceable against
HECO in accordance with its terms and, to such counsel's knowledge, has
been duly qualified under the Trust Indenture Act;
(xiv) each of the Indentures has been duly authorized by all
necessary corporate action of and duly executed and delivered by HECO (as
guarantor with respect to the MECO Indenture and the HELCO Indenture) and
constitutes a valid and binding instrument of HECO, enforceable against
HECO in accordance with its terms and, to such counsel's knowledge, has
been duly qualified under the Trust Indenture Act;
(xv) the Subsidiary Indenture to which each Subsidiary is a party
has been duly authorized by all necessary corporate action of and duly
executed and delivered by such Subsidiary and constitutes a valid and
binding instrument of such Subsidiary, enforceable against such Subsidiary
in accordance with its terms;
(xvi) the HECO Debentures have been duly authorized by all necessary
corporate action of and duly executed by HECO and, when authenticated in
the manner
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provided for in the HECO Indenture and delivered against payment therefor
by the Trust as described in the Prospectus, will constitute valid and
binding obligations of HECO, enforceable against HECO in accordance with
their terms, and will be entitled to the benefits of such Indenture;
(xvii) the Substituted HECO Debentures have been duly authorized by
all necessary corporate action of HECO and, if and when approved for
issuance by the PUC and then executed and authenticated in the manner
provided for in the HECO Indenture and delivered in exchange for the
Subsidiary Debentures as described in the Prospectus, will constitute valid
and binding obligations of HECO, enforceable against HECO in accordance
with their terms, and will be entitled to the benefits of the HECO
Indenture;
(xviii) the Subsidiary Debentures issued by each Subsidiary have
been duly authorized by all necessary corporate action of and duly executed
by such Subsidiary and, when authenticated in the manner provided for in
the applicable Indenture and delivered against payment therefor by the
Trust as described in the Prospectus, will constitute valid and binding
obligations of such Subsidiary, enforceable against such Subsidiary in
accordance with their terms, and will be entitled to the benefits of the
applicable Subsidiary Indenture;
(xix) the Expense Agreement has been duly authorized by all
necessary corporate action of and duly executed and delivered by each
Company and constitutes a valid and binding instrument of each Company,
enforceable against such Company in accordance with its terms;
(xx) the execution and delivery by each of the Companies and the
Trust of this Underwriting Agreement, the Securities, the Subsidiary
Debentures, the Indentures, the Trust Agreement, the Trust Guarantee
Agreement and the Expense Agreement to which it is a party did not, and the
consummation by such Company or the Trust of the transactions contemplated
hereby and thereby to be performed by it and the fulfillment of the terms
hereof and thereof will not result in a breach of any of the terms or
provisions of, or constitute a default under, any material indenture,
mortgage, deed of trust or other agreement or instrument to which such
Company or the Trust is a party and of which such counsel has knowledge, or
the Amended Articles of Incorporation, as amended, or By-Laws of such
Company or contravene or conflict with any order, rule or regulation known
to such counsel as applicable to such Company or the Trust of any court or
of any federal or state regulatory body or administrative agency or other
governmental body having jurisdiction over such Company or the Trust or any
of its properties, or any statute or constitutional provision of the State
of Hawaii applicable to such Company or the Trust, except that such counsel
need not express an opinion with respect to state securities or blue sky
laws; and
(xxi) those portions of the Registration Statement and the
Prospectus that are stated therein to have been made on such counsel's
authority (including such counsel's opinion set forth under "Certain
Federal Income Tax Consequences" in the Prospectus) have been reviewed by
such counsel and, as to matters of law and legal conclusions, are, subject
to the qualifications set forth therein, correct.
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In rendering such opinion, (A) such counsel may state that it is expressing an
opinion only as to the federal laws of the United States, the laws of the State
of Hawaii and, subject to clause (B) below, the laws of the State of New York,
(B) such counsel may rely, as to matters involving the application of laws of
the State of New York, upon the opinion of Counsel for the Underwriters rendered
pursuant to Section 7(e) hereof, (C) such counsel may rely, as to matters of
good standing and valid existence and as to matters of fact, upon certificates
of government officials (provided that copies of such certificates will be
furnished upon request to Counsel for the Underwriters), (D) such counsel may
rely, as to matters of fact, upon certificates and representations of officers
and employees of the Companies (provided that copies of such certificates will
be furnished to Counsel for the Underwriters), (E) such counsel may rely, with
respect to matters involving litigation or proceedings not principally handled
by such counsel's firm, upon opinions and information upon which such counsel
has been permitted to rely by other counsel representing the Companies in such
litigation or proceedings (provided that copies of such opinions will be
furnished upon request to Counsel for the Underwriters), (F) for purposes of the
opinion expressed in paragraph (iii) above, "material" shall mean $15,000,000,
(G) such counsel may state that it has not been requested to, and does not,
express any opinion with respect to the financial statements and notes thereto
and the schedules and other financial and statistical data and information
included or incorporated by reference in the Registration Statement and the
Prospectus or with respect to the statements of eligibility on Form T-1 filed as
exhibits to the Registration Statement, (H) such counsel may state, with respect
to the matters set forth in paragraph (ix) above, that they have not
independently verified and assume no responsibility for the accuracy,
completeness or fairness of the statements in the Prospectus or in any document
incorporated by reference therein, except insofar as such statements relate to
such counsel or as set forth in paragraphs (x) and (xxi) above, (I) such
counsel may limit the matters set forth in paragraphs (xiii) through (xix) above
by the application of applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization or other similar laws affecting creditors' rights and of general
equitable principles (whether considered in a proceeding in equity or at law)
and, if applicable, by the effect of applicable public policy on the
enforceability of provisions relating to contribution or indemnification, (J)
such counsel may state that, whenever such opinion is qualified by the phrases
"known to such counsel," "to the best of our knowledge," "to our knowledge" or
"nothing has come to our attention," or other phrases of similar import, such
phrases are intended to mean the actual knowledge of information by the lawyers
in such counsel's firm who have been principally involved in drafting the
Prospectus and supervising the issuance, sale and delivery of the Trust
Preferred Securities and preparing the pertinent documents and the lawyers
having supervisory responsibility for the client relationship with the Companies
and general transaction representation, but does not include other information
that might be revealed if there were to be undertaken a canvass of all lawyers
in such counsel's firm, a general search of all files or any other type of
independent investigation (other than, with respect to the matters set forth in
paragraph (iii) above, such review of internal litigation files or inquiries of
other counsel as such counsel deems necessary) and (K) such counsel may include
therein such other customary qualifications reasonably acceptable to the
Representatives and Counsel for the Underwriters. References to the Registration
Statement and the Prospectus in this Section 7(c) shall include any amendments
or supplements thereto at the Closing Date.
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(d) At the Closing Date, the Representatives shall have received an
opinion of Richards, Layton & Finger, P.A., special Delaware counsel for HECO
and the Trust, dated the Closing Date, to the effect that:
(i) the Trust has been duly created and is validly existing in good
standing as a business trust under the Business Trust Act; and all filings
required under the laws of the State of Delaware with respect to the
creation and valid existence of the Trust as a business trust have been
made;
(ii) under the Trust Agreement and the Business Trust Act, the
Trust has the trust power and authority (A) to own property and to conduct
its business, all as described in the Prospectus, (B) to issue and sell the
Trust Securities in accordance with the Trust Agreement, and as described
in the Prospectus, and to perform its other obligations under the Trust
Agreement, this Underwriting Agreement and the Trust Securities, (C) to
execute and deliver this Underwriting Agreement and (D) to consummate the
transactions contemplated by this Underwriting Agreement;
(iii) assuming that the Trust Agreement has been duly authorized,
executed and delivered by the parties thereto, the Trust Agreement
constitutes a valid and binding obligation of each of HECO and the
Administrative Trustees, and is enforceable against HECO and the
Administrative Trustees, in accordance with its terms, except as limited by
bankruptcy, insolvency, moratorium, receivership, reorganization,
liquidation, fraudulent conveyance or transfer and other similar laws
relating to or affecting creditors' rights generally, principles of equity,
including applicable law relating to fiduciary duties (whether considered
in a proceeding in equity or at law), and the effect of applicable public
policy on the enforceability of provisions relating to contribution or
indemnification;
(iv) the Trust Common Securities have been duly authorized by the
Trust Agreement and are validly issued undivided beneficial interests in
the assets of the Trust;
(v) the Trust Preferred Securities have been duly authorized by
the Trust Agreement and are duly and validly issued and, subject to the
qualifications set forth in paragraph (vi) below, fully paid and non-
assessable undivided beneficial interests in the assets of the Trust;
(vi) the holders of the Trust Preferred Securities, as beneficial
owners of the Trust, will be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of Delaware (in
this regard, such counsel may note that the holders of the Trust Preferred
Securities may be obligated, pursuant to the Trust Agreement, to provide
(A) indemnity or security in connection with and pay taxes or governmental
charges arising from transfers or exchanges of certificates for Trust
Preferred Securities and the issuance of replacement certificates for Trust
Preferred Securities and (B) security or indemnity in connection with
requests of or directions to the Property Trustee to exercise its rights
and powers under the Trust Agreement);
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<PAGE>
(vii) under the Trust Agreement and the Business Trust Act, the
issuance of the Trust Securities is not subject to preemptive rights;
(viii) the issuance and sale by the Trust of the Trust Securities,
the execution, delivery and performance by the Trust of this Underwriting
Agreement, and the consummation of the transactions contemplated by this
Underwriting Agreement, do not violate (A) the Trust Certificate or the
Trust Agreement or (B) any applicable Delaware law, rule or regulation; and
(ix) under the Trust Agreement and the Business Trust Act, the
issuance and sale by the Trust of the Trust Securities and the execution
and delivery by the Trust of this Underwriting Agreement, and the
performance by the Trust of its obligations hereunder, have been duly
authorized by all necessary trust action on the part of the Trust, and,
upon the due execution and delivery of this Underwriting Agreement by HECO
as depositor under the Trust Agreement and the certificates for the Trust
Preferred Securities by more than one Administrative Trustee on behalf of
the Trust, and the countersignature of the Trust Preferred Securities by an
authorized officer of the Property Trustee in accordance with the Trust
Agreement, this Underwriting Agreement and the Trust Preferred Securities
will have been duly executed and delivered by the Trust.
In rendering such opinion, (A) such counsel may rely, as to matters of good
standing and valid existence and as to matters of fact, upon certificates of
government officials (provided that copies of such certificates will be
furnished upon request to Counsel for the Underwriters), (B) such counsel may
rely, as to matters of fact, upon certificates and representations of the Trust
(provided that copies of such certificates will be furnished upon request to
Counsel for the Underwriters), (C) such counsel may state that it is expressing
an opinion only as to the laws of the State of Delaware and (D) such counsel may
include therein such other customary qualifications reasonably acceptable to the
Representatives and Counsel for the Underwriters. References to the Prospectus
in this Section 7(d) shall include any amendments or supplements thereto at the
Closing Date.
(e) At the Closing Date, the Representatives shall have received an
opinion of Counsel for the Underwriters, dated the Closing Date, with respect to
certain matters relating to the execution and delivery by each of the Companies
of this Underwriting Agreement, the description of the Securities, the validity
of the Indentures, the HECO Securities and the Subsidiary Debentures, the
Registration Statement and the Prospectus, as amended or supplemented to the
Closing Date, and such other related matters as the Representatives may
reasonably request.
(f) On the date hereof, the Representatives shall have received a
letter from KPMG Peat Marwick LLP, independent certified public accountants of
the Companies (the "Accountants"), dated the date hereof, to the effect that:
(i) The Accountants are independent certified public accountants
with respect to the Companies within the meaning of the Securities Act and
the applicable rules and regulations of the Commission thereunder;
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<PAGE>
(ii) In the opinion of the Accountants, the financial statements
and any supplementary financial information and schedules examined by them
and included or incorporated by reference in the Prospectus comply as to
form in all material respects with the applicable accounting requirements
of the Securities Act or the Exchange Act, as applicable, and the related
rules and regulations of the Commission thereunder; and, if applicable, the
Accountants have made a review in accordance with standards established by
the American Institute of Certified Public Accountants of the consolidated
interim financial statements, pro forma financial information or condensed
financial statements derived from consolidated audited financial statements
of the Companies for the periods specified in such letter, as indicated in
their reports thereon, copies of which have been furnished to the
Representatives;
(iii) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available interim
financial statements of the Companies, inspection of the minute books of
the Companies since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus, inquiries of
officials of the Companies responsible for financial and accounting matters
and such other inquiries and procedures as may be specified in such letter,
nothing came to their attention that caused the Accountants to believe
that:
(A) the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
of HECO included or incorporated by reference in HECO's Quarterly
Reports on Form 10-Q incorporated by reference in the Prospectus do
not comply as to form in all material respects with the applicable
accounting requirements of the Securities Act, the Exchange Act as it
applies to Form 10-Q and the related rules and regulations of the
Commission thereunder or any material modifications should be made to
such unaudited financial statements for them to be in conformity with
generally accepted accounting principles;
(B) any other unaudited income statement data and balance sheet
items included in the Prospectus do not agree with the corresponding
items in the unaudited consolidated financial statements from which
such data and items were
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<PAGE>
derived, and any such unaudited data and items were not determined on
a basis substantially consistent with the basis for the corresponding
amounts in the audited consolidated financial statements included or
incorporated by reference in the Prospectus;
(C) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the Prospectus do
not comply as to form in all material respects with the applicable
accounting requirements of the Securities Act and the rules and
regulations of the Commission thereunder or the pro forma adjustments
have not been properly applied to the historical amounts in the
compilation of those statements;
(D) at the date of the latest available financial statements of
HECO and as of a specified date not more than five business days prior
to the date of such letter, there have been any changes in the
consolidated capital stock or any increase in the consolidated long-
term debt of the Companies or any decreases in consolidated net assets
or other items specified by the Representatives, or any increases in
any items specified by the Representatives, in each case as compared
with the amounts shown in the latest balance sheet included or
incorporated by reference in the Prospectus, except in each case for
changes, increases or decreases that the Prospectus discloses have
occurred or may occur or that are described in such letter; or
(E) for the period from the date of the latest financial
statements included or incorporated by reference in the Prospectus to
the date of the latest available financial statements of HECO and to
the specified date referred to in paragraph (D) above there were any
decreases in consolidated revenues or the total amount of consolidated
net income or other items specified by the Representatives, or any
increases in any items specified by the Representatives, in each case
as compared with the comparable period of the preceding year and with
any other period of corresponding length specified by the
Representatives, except in each case for increases or decreases that
the Prospectus discloses have occurred or may occur or that are
described in such letter; and
(v) In addition to the examination referred to in their report or
reports included or incorporated by reference in the Prospectus and the
limited procedures, inspection of minute books, inquiries and other
procedures referred to in paragraphs (iii) and (iv) above, the Accountants
have carried out certain specified procedures, not constituting an
examination in accordance with generally accepted auditing standards, with
respect to certain amounts, percentages and financial information specified
by the Representatives that are derived from the general accounting records
of the Companies and that appear in the Prospectus (excluding documents
incorporated by reference) or in Part II of, or in exhibits and schedules
to, the Registration Statement specified by the Representatives or in
documents incorporated by reference in the Prospectus specified by the
Representatives, and have compared certain of such amounts, percentages and
financial information with the accounting records of the Companies and have
found them to be in agreement.
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<PAGE>
References to the Registration Statement and the Prospectus in this Section 7(f)
shall include any amendments or supplements thereto at the Closing Date.
(g) At the Closing Date, the Representatives shall have received a
certificate of each Company, dated the Closing Date and signed by the Chairman
of the Board of Directors, the President, the Financial Vice President and
Treasurer, any other Vice President or an Assistant Treasurer of such Company,
(i) as to the accuracy of the representations and warranties of such Company
contained herein, (ii) as to the performance and compliance by such Company with
all agreements and conditions in this Underwriting Agreement to be performed or
complied with by such Company at or prior to the Closing Date, (iii) as to the
matters set forth in Sections 7(a), 7(b) and 7(m)(i) hereof and (iv) to the
effect that, since the respective dates as of which information is given in the
Prospectus, there has not been any change in the capital stock or long term debt
of such Company or any change, or any development involving a prospective
change, in or affecting the general affairs, management, financial position,
stockholder's equity or results of operations of such Company, otherwise than as
set forth or contemplated in the Prospectus.
(h) At the Closing Date, the Representatives shall have received a
certificate, dated the Closing Date and signed by an authorized representative
of the Trust, as to (i) the accuracy of the representations and warranties of
the Trust contained herein and (ii) the performance and compliance by the Trust
with all agreements and conditions in this Underwriting Agreement to be
performed or complied with by the Trust at or prior to the Closing Date.
(i) At the Closing Date, the Representatives shall have received (i)
duly executed counterparts of the Trust Agreement, the Trust Guarantee
Agreement, the Expense Agreement and the Indentures and (ii) specimens of the
Debentures and of certificates for the Trust Common Securities.
(j) At the Closing Date, the Representatives shall have received from
the Accountants a letter, dated the Closing Date, confirming, as of a date not
more than three business days prior to the Closing Date, the statements
contained in the letter delivered pursuant to Section 7(f) hereof.
(k) At the Closing Date, no Special Event (as defined in the Trust
Agreement) shall have occurred and be continuing.
(l) On or after the date hereof, there shall not have occurred any of
the following: (i) a suspension or material limitation in trading in securities
generally on the NYSE; (ii) a suspension or material limitation in trading of
the Trust Preferred Securities or of any securities of HECO on the NYSE; (iii) a
general moratorium on commercial banking activities declared by either federal
authorities or authorities in the State of Hawaii or New York; (iv) the outbreak
or escalation of hostilities involving the United States or the declaration by
the United States of a national emergency or war, if the effect of any such
event in this clause (iv) in the judgment of the Representatives makes it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Trust Preferred Securities on the terms and in the manner contemplated in
the Prospectus; or (v) the occurrence of any material adverse change in the
existing financial, political or economic conditions in the United States or
elsewhere that, in the judgment of the Representatives, would materially and
adversely affect the financial markets or the market for the Trust Preferred
Securities and other securities similar to the Trust Preferred Securities or the
Debentures.
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<PAGE>
(m) (i) None of the Companies shall have sustained since the date of
the latest audited financial statements included or incorporated by reference in
the Prospectus any loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise than as set
forth or contemplated in the Prospectus and (ii) since the date hereof, there
shall not have been any change in the capital stock or long-term debt of the
Companies or any change, or any development involving a prospective change, in
or affecting the general affairs, management, financial position, stockholder's
equity or results of operations of the Companies, the effect of which, in any
such case described in clause (i) or (ii) above, is in the judgment of the
Representatives so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the Trust
Preferred Securities on the terms and in the manner contemplated in the
Prospectus.
(n) On or after the date hereof, (i) no downgrading shall have
occurred in the rating accorded any of HECO's debt securities by any "nationally
recognized statistical rating organization," as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the Securities Act and (ii) no
such organization shall have publicly announced that it has under surveillance
or review, with possible negative implications, its rating of any of HECO's debt
securities.
(o) On or prior to the Closing Date, the Representatives shall have
received from the Offerors evidence reasonably satisfactory to Goldman, Sachs &
Co. that Moody's Investors Service, Inc. and Standard & Poor's Ratings Service
have publicly assigned to the Trust Preferred Securities ratings of Baal and
BBB, respectively, which ratings shall be in full force and effect on the
Closing Date.
(p) On or prior to the Closing Date, (i) the Trust Preferred
Securities shall have been duly listed, subject to notice of issuance, on the
NYSE and (ii) the registration statement on Form 8-A relating to the Trust
Preferred Securities shall have become effective under the Exchange Act.
(q) All legal matters in connection with the issuance and sale of the
Trust Preferred Securities shall be satisfactory in form and substance to
Counsel for the Underwriters.
(r) The Companies and the Trust will furnish the Underwriters with
additional conformed copies of such opinions, certificates, letters and
documents as may be reasonably requested.
If any of the conditions specified in this Section 7 shall not have
been fulfilled, this Underwriting Agreement may be terminated by the
Underwriters upon notice thereof to the Offerors. Any such termination shall be
without liability of any party to any other party, except as otherwise provided
in Sections 6(g) and Section 10 hereof.
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SECTION 8. Condition to the Obligations of the Offerors. The
--------------------------------------------
obligations of the Companies and the Trust hereunder shall be subject to the
condition that no stop order suspending the effectiveness of the Registration
Statement shall be in effect at or prior to the Closing Date, and no proceedings
for that purpose shall be pending before, or threatened by, the Commission on
the Closing Date. In case such condition shall not have been fulfilled, this
Underwriting Agreement may be terminated by the Offerors upon notice thereof to
the Representatives. Any such termination shall be without liability of any
party to any other party, except as otherwise provided in Sections 6(g) and 10
hereof.
SECTION 9. Indemnification and Contribution.
--------------------------------
(a) The Companies and the Trust jointly and severally will indemnify
and hold harmless each Underwriter, and each person, if any, who controls each
Underwriter within the meaning of Section 15 of the Securities Act, from and
against any and all losses, claims, damages or liabilities, joint or several, to
which such Underwriter may become subject, under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement, as
amended, or the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, or arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in any Preliminary Prospectus or
in the Prospectus, as each may be amended or supplemented, or any omission or
alleged omission to state therein a material fact necessary in order to make the
statements made therein, in the light of the circumstances under which they were
made, not misleading, and will reimburse such Underwriter for any legal or other
expenses reasonably incurred by each Underwriter in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that neither any Company nor the Trust shall be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue statement or omission
or alleged untrue statement or omission made in reliance upon and in conformity
with the Underwriter Information; provided further, however, that neither the
Companies nor the Trust shall be required to reimburse any Underwriter or such
person for fees and expenses of counsel other than one counsel for all
Underwriters and one counsel for all Underwriters in each jurisdiction in which
proceedings are or are threatened to be brought or of which matters of law are
or may be at issue, unless and to the extent that there are actual or potential
conflicts of interest between or among Underwriters or defenses available to one
or more Underwriters that are not available to other Underwriters; provided
further, however, that the indemnification contained in this Section 9(a) with
respect to any Preliminary Prospectus shall not inure to the benefit of any
Underwriter (or to the benefit of any person controlling such Underwriter) on
account of any such loss, claim, damage, liability or expense arising from the
sale of the Trust Preferred Securities by such Underwriter to any person if the
Companies and the Trust have established that a copy of the Prospectus was not
delivered or sent to such person within the time required by the Securities Act
and the rules and regulations thereunder, and the untrue statement or alleged
untrue statement or omission or alleged omission of a material fact contained in
such Preliminary Prospectus was corrected in
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<PAGE>
the Prospectus, provided that the Offerors have delivered the Prospectus to the
several Underwriters in requisite quantity on a timely basis to permit such
delivery or sending.
(b) Each Underwriter will indemnify and hold harmless the Companies
and the Trust, their respective directors and officers who signed the
Registration Statement and each person, if any, who controls any of the
Companies or the Trust within the meaning of Section 15 of the Securities Act
from and against any and all losses, claims, damages or liabilities to which the
Companies or the Trust may become subject, under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement, as
amended, or the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, or arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in any Preliminary Prospectus or
in the Prospectus, as each may be amended or supplemented, or any omission or
alleged omission to state therein a material fact necessary in order to make the
statements made therein, in the light of the circumstances under which they were
made, not misleading, in each case to the extent, but only to the extent, that
any such loss, claim, damage or liability arises out of or is based upon any
such untrue statement or omission or alleged untrue statement or omission made
in reliance upon and in conformity with the Underwriter Information, and will
reimburse the Companies and the Trust for any legal or other expenses reasonably
incurred by the Companies and the Trust in connection with investigating or
defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under Section 9(a)
or 9(b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under Section 9(a) or 9(b), notify such indemnifying party in
writing of the commencement thereof; but the failure to so notify such
indemnifying party shall neither relieve such indemnifying party from any
liability that it may have to the indemnified party that failed to give such
notice unless and only to the extent that such indemnifying party has been
prejudiced by such failure nor relieve it from any liability that it may have to
such indemnified party otherwise than under this Section 9. In case any such
action is brought against any such indemnified party and it notifies such
indemnifying party of the commencement thereof, such indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly with
any other indemnifying parties similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of such indemnified party, be counsel to such
indemnifying party), and, after notice from such indemnifying party to such
indemnified party of its election to so assume the defense thereof, such
indemnifying party shall not be liable to such indemnified party under Section
9(a) or 9(b) for any legal expenses of other counsel or any other expenses, in
each case subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of investigation. No such
indemnifying party shall, without the written consent of such indemnified party,
effect the settlement or compromise of, or consent to the entry of any judgment
with respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not such
indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (i) includes an unconditional
release of such indemnified party from
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all liability arising out of such action 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 any indemnified party.
(d) If the indemnification provided for in Section 9(a) or 9(b)
hereof is unavailable to or insufficient to hold harmless an indemnified party
in respect of any losses, claims, damages or liabilities (or actions in respect
thereof) described therein, then each indemnifying party shall contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received by the
Companies and the Trust on the one hand and the Underwriters on the other from
the offering of the Trust Preferred Securities. If, however, the allocation
provided by the immediately preceding sentence is not permitted by applicable
law or if such indemnified party failed to give the notice required under
Section 9(c) hereof and such indemnifying party was prejudiced by such failure,
then each such indemnified party shall contribute to such amount paid or payable
by such indemnified party in such proportion as is appropriate to reflect not
only such relative benefits but also the relative fault of the Companies and the
Trust on the one hand and the Underwriters on the other in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Companies and
the Trust on the one hand and the Underwriters on the other shall be deemed to
be in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Trust bear to the total underwriting
commission received by the Underwriters, in each case as set forth in the table
on the cover page of the Prospectus. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Companies or the Trust on the one hand or
the Underwriters on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Companies, the Trust and the Underwriters agree that it would not
be just and equitable if contribution pursuant to this Section 9(d) were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or any other method of allocation that does not take
account of the equitable considerations referred to above in this Section 9(d).
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to above
in this Section 9(d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 9(d), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Trust Preferred
Securities underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages that such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this paragraph 9(d), each person, if any, who
controls an Underwriter within the meaning of Section 15 of the Securities Act
shall have the same rights to contribution as such Underwriter, and each person,
if any, who controls any of the Companies or the Trust within the meaning of
Section 15 of the Securities Act and each officer or director of such Company
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or the Trust shall have the same rights to contribution as such Offeror, as the
case may be, subject in each case to Sections 9(a) and 9(b) hereof.
SECTION 10. Survival of Certain Representations and Obligations.
---------------------------------------------------
Any other provision of this Underwriting Agreement to the contrary
notwithstanding, (a) the indemnity and contribution agreements contained in
Section 9 hereof, and the representations and warranties and other agreements of
the Companies and the Trust contained herein, shall remain operative and in full
force and effect regardless of (i) any investigation made by or on behalf of any
Underwriter or by or on behalf of any of the Companies or the Trust or its
directors or officers, or any of the other persons referred to in Section 9
hereof and (ii) acceptance of and payment for the Trust Preferred Securities and
(b) the indemnity and contribution agreements contained in Section 9 hereof
shall remain operative and in full force and effect regardless of any
termination of this Underwriting Agreement.
SECTION 11. Default of Underwriters.
-----------------------
(a) If any Underwriter defaults in its obligation to purchase the
number of Trust Preferred Securities that it has agreed to purchase hereunder,
the non-defaulting Underwriters may in their discretion arrange for such non-
defaulting Underwriters or another party or other parties to purchase such
number of Trust Preferred Securities on the terms contained herein. If within
twenty-four hours after such default by any Underwriter such non-defaulting
Underwriters do not arrange for the purchase of such number of Trust Preferred
Securities, then the Offerors shall be entitled to a further period of twenty-
four hours within which to, but shall not be required to, procure another party
or other parties satisfactory to such non-defaulting Underwriters to purchase
such Securities on such terms. In the event that, within the respective periods
prescribed above, such non-defaulting Underwriters notify the Offerors that they
have so arranged for the purchase of such number of Trust Preferred Securities,
or the Offerors notify the Underwriters that they have so arranged for the
purchase of such number of Trust Preferred Securities, then such non-defaulting
Underwriters or the Offerors shall have the right to postpone the Closing Date,
for a period of not more than five business days, in order to effect whatever
changes may thereby be made necessary in the Registration Statement or the
Prospectus, or in any other documents or arrangements, and the Companies and the
Trust agree to file promptly any amendments to the Registration Statement or the
Prospectus that in the opinion of such non-defaulting Underwriters may thereby
be made necessary.
(b) If, after giving effect to any arrangements for the purchase of
Trust Preferred Securities of a defaulting Underwriter or Underwriters by the
non-defaulting Underwriter or Underwriters and the Offerors as provided in
Section 11(a) hereof, the aggregate number of Trust Preferred Securities that
remains unpurchased does not exceed one-eleventh of the aggregate number of all
the Trust Preferred Securities to be purchased hereunder, then the Offerors
shall have the right to require each non-defaulting Underwriter to purchase the
number of Trust Preferred Securities that such Underwriter agreed to purchase
hereunder and, in addition, to require each non-defaulting Underwriter to
purchase its pro rata share (based on the number of Trust Preferred Securities
that such Underwriter agreed to purchase hereunder) of the Trust Preferred
Securities of such defaulting Underwriter or Underwriters for which such
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<PAGE>
arrangements have not been made, but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of
the Trust Preferred Securities of a defaulting Underwriter or Underwriters by
the non-defaulting Underwriter or Underwriters and the Offerors as provided in
Section 11(a) hereof, the aggregate number of Trust Preferred Securities that
remains unpurchased exceeds one-eleventh of the aggregate number of all the
Trust Preferred Securities to be purchased hereunder, or if the Offerors do
not exercise the right provided in Section 11(b) hereof to require such non-
defaulting Underwriters to purchase Trust Preferred Securities of a defaulting
Underwriter or Underwriters, then this Underwriting Agreement shall thereupon
terminate, without liability on the part of any such non-defaulting Underwriter
or either of the Offerors, except for the indemnity agreements in Section 9
hereof, but nothing herein shall relieve a defaulting Underwriter from liability
for its default.
SECTION 12. Miscellaneous. THE RIGHTS AND DUTIES OF THE PARTIES TO
-------------
THIS UNDERWRITING AGREEMENT SHALL, PURSUANT TO NEW YORK GENERAL OBLIGATIONS LAW
SECTION 5-1401, BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK. This
Underwriting Agreement shall become effective when a fully executed copy thereof
is delivered to the Companies and the Trust and to the Representatives. This
Underwriting Agreement may be executed in any number of separate counterparts,
each of which, when so executed and delivered, shall be deemed to be an original
and all of which, taken together, shall constitute but one and the same
agreement. This Underwriting Agreement shall inure to the benefit of each of the
Companies and the Trust, the Underwriters and, with respect to the provisions of
Section 9 hereof, each director, officer and other person referred to in Section
9 hereof, and their respective successors. If any part of this Underwriting
Agreement for any reason is declared invalid, such declaration shall not affect
the validity of any remaining portion, which remaining portion shall remain in
full force and effect as if this Underwriting Agreement had been executed with
the invalid portion thereof eliminated. Nothing herein is intended or shall be
construed to give to any other person, firm or corporation any legal or
equitable right, remedy or claim under or in respect of any provision in this
Underwriting Agreement. The term "successor" as used in this Underwriting
Agreement shall not include any purchaser, as such purchaser, of any Trust
Preferred Securities from the Underwriters.
SECTION 13. Notices. All communications hereunder shall be in
-------
writing and, if to the Underwriters, shall be mailed or delivered to Goldman,
Sachs & Co. at the address set forth at the beginning of this Underwriting
Agreement (to the attention of its General Counsel) or, if to the Companies or
the Trust, shall be mailed or delivered to them c/o HECO, P.O. Box 2750,
Honolulu, Hawaii 96840-0001, Attention: Financial Vice President and Treasurer.
-28-
<PAGE>
If the foregoing is in accordance with your understanding, please sign
and return to us counterparts of this Underwriting Agreement, and upon
acceptance hereof by you, on behalf of each of the Underwriters, this
Underwriting Agreement and such acceptance hereof shall constitute a binding
agreement among each of the Underwriters, each of the Companies and the Trust.
It is understood that your acceptance of this Underwriting Agreement on behalf
of each of the Underwriters is or will be pursuant to the authority set forth in
a form of Agreement among Underwriters, the form of which shall be submitted to
the Companies and the Trust for examination upon request, but without warranty
on the part of the Representatives as to the authority of the signers thereof.
Very truly yours,
Hawaiian Electric Company, Inc.
By: /s/ Paul Oyer
-------------------------------------------
Name: Paul A. Oyer
Title: Financial Vice-President
and Treasurer
Maui Electric Company, Limited
By: /s/ Paul Oyer
-------------------------------------------
Name: Paul A. Oyer
Title: Financial Vice-President
and Treasurer
Hawaii Electric Light Company, Inc.
By: /s/ Paul Oyer
-------------------------------------------
Name: Paul A. Oyer
Title: Financial Vice-President
and Treasurer
<PAGE>
HECO Capital Trust I
By: Hawaiian Electric Company, Inc.,
as Depositor
By: /s/ Paul Oyer
-------------------------------------------
Name: Paul A. Oyer
Title: Financial Vice-President
and Treasurer
Accepted as of the date first above written:
GOLDMAN, SACHS & Co.
PAINEWEBBER INCORPORATED
As representatives of the other several
Underwriters named in Schedule I hereto
By: GOLDMAN, SACHS & Co.
/s/ Goldman, Sachs & Co.
---------------------------
<PAGE>
SCHEDULE I
----------
HECO Capital Trust II
7.30% Cumulative Quarterly Income Preferred Securities, Series 1998
<TABLE>
<CAPTION>
Number of
Underwriter Trust Preferred Securities
- ----------- --------------------------
<S> <C>
Goldman, Sachs & Co. 700,000
PaineWebber Incorporated 700,000
Advest, Inc. 20,000
Robert W. Baird & Co. Incorporated 20,000
BT Alex. Brown Incorporated 40,000
Charles Schwab & Co., Inc. 20,000
CIBC Oppenheimer Corp. 40,000
Crowell, Weedon & Co. 20,000
Dain Rauscher Wessels, a division of Dain Rauscher Incorporation 20,000
A.G. Edwards & Sons, Inc. 40,000
EVEREN Securities, Inc. 40,000
Fahnestock & Co. Inc. 20,000
Fleet Securities Inc. 20,000
Legg Mason Wood Walker, Incorporated 20,000
McDonald Investments Inc., A Keycorp Company 20,000
McGinn, Smith & Co., Inc. 20,000
Morgan Keegan & Company, Inc. 20,000
National Financial Services Corporation 20,000
Olde Discount Corporation 20,000
Piper Jaffray Inc. 20,000
Prudential Securities Incorporated 40,000
Raymond James & Associates, Inc. 20,000
Sutro & Co. Incorporated 20,000
TD Securities (USA) Inc. 20,000
Tucker Anthony Incorporated 20,000
Wedbush Morgan Securities 20,000
Wheat First Securities, Inc. 20,000
---------
Total 2,000,000
=========
</TABLE>
<PAGE>
EXHIBIT 4(c)
Amended and Restated
Trust Agreement for HECO Capital Trust II
among
HAWAIIAN ELECTRIC COMPANY, INC.
(as Depositor)
THE BANK OF NEW YORK
(as Property Trustee)
THE BANK OF NEW YORK (DELAWARE)
(as Delaware Trustee)
and
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
and
THE SEVERAL HOLDERS AS DEFINED HEREIN
Dated as of
December 1, 1998
<PAGE>
HECO Capital Trust II
Certain Sections of this Trust Agreement relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939
<TABLE>
<CAPTION>
Trust Indenture Trust Agreement
Act Section Section
- ------------------ ------------------
<S> <C>
(S) 310(a)(1) 7.07
(a)(2) 7.07
(a)(3) 7.09
(a)(4) 2.07(a)(ii)
(b) 7.08
(S) 311(a) 7.13
(b) 7.13
(S) 312(a) 5.07
(b) 5.07
(c) 5.07
(S) 313(a) 7.14
(b) 7.14
(c) 7.14
(d) 7.14
(S) 314(a) 7.15
(b) Not Applicable
(c)(1) 7.16, 7.17
(c)(2) 7.16, 7.17
(c)(3) Not Applicable
(d) Not Applicable
(e) 7.17
(S) 315(a) 7.01(a), 7.03(a)
(b) 7.02, 10.08
(c) 7.01(a)
(d) 7.01, 7.03
(e) Not Applicable
(S) 316(a) Not Applicable
(a)(1)(A) Not Applicable
(a)(1)(B) Not Applicable
(a)(2) Not Applicable
(b) Not Applicable
(c) Not Applicable
(S) 317(a)(1) Not Applicable
(a)(2) Not Applicable
(b) 5.09
[B(S) 318(a) 10.10
</TABLE>
__________________
Note: This reconciliation and tie sheet shall not, for any purpose, be
deemed to be a part of the Trust Agreement.
<PAGE>
AMENDED AND RESTATED TRUST AGREEMENT of HECO Capital Trust I (the "Trust"),
dated as of December 1, 1998, among (i) Hawaiian Electric Company, Inc., a
Hawaii corporation (the "Depositor" or "HECO"), (ii) The Bank of New York, a New
York banking corporation, as trustee (the "Property Trustee"), (iii) The Bank of
New York (Delaware), a Delaware banking corporation, as Delaware trustee (the
"Delaware Trustee"), (iv) T. Michael May, Paul A. Oyer and Lorie Ann Nagata,
individuals whose address is c/o Hawaiian Electric Company, Inc., 900 Richards
Street, Honolulu, Hawaii 96813 (the "Administrative Trustees") (the Property
Trustee, the Delaware Trustee and the Administrative Trustee are referred to
collectively as the "Trustees"), and (v) the several Holders (as defined
herein).
WITNESSETH:
WHEREAS, the Depositor and the Trustees have heretofore duly declared and
established a business trust pursuant to the Delaware Business Trust Act by
entering into a Trust Agreement, dated as of October 7, 1998 (the "Original
Trust Agreement"), and by executing and filing with the Secretary of State of
the State of Delaware a Certificate of Trust on October 15, 1998, a copy of
which is attached hereto as Exhibit A; and
WHEREAS, the Depositor and the Trustees desire to amend and restate the
Original Trust Agreement in its entirety as set forth herein to provide for,
among other things, (i) the issuance and sale by the Trust of the Trust Common
Securities (as defined herein) by the Trust to the Depositor, (ii) the issuance
and sale by the Trust of the Trust Preferred Securities (as defined herein) by
the Trust pursuant to the Underwriting Agreement (as defined herein) and (iii)
the acquisition by the Trust from the Depositor and the Subsidiaries of the
Debentures (as defined herein).
NOW, THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the sufficiency of
which is hereby acknowledged, each party, for the benefit of the other parties
and for the benefit of the Securityholders (as defined herein) hereby amends and
restates the Original Trust Agreement in its entirety and agrees as follows:
1
<PAGE>
ARTICLE 1. DEFINED TERMS
SECTION 1.01. Definitions.
(a) For all purposes of this Trust Agreement, except as otherwise
expressly provided or unless the context otherwise requires:
(1) each capitalized term or phrase defined in this Article 1 has the
meaning assigned to it in this Article 1 and includes the plural as well as
the singular;
(2) each of the other terms used herein that is defined in the Trust
Indenture Act, either directly or by reference therein, has the meaning
assigned to it therein;
(3) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may
be, of this Trust Agreement; and
(4) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Trust Agreement as a whole and not to any
particular Article, Section or other subdivision.
(b) As used herein:
"Act" has the meaning specified in Section 6.08.
---
"Administrative Trustees" means the individuals identified as the
-----------------------
"Administrative Trustees" in the preamble to this Trust Agreement, solely
in their respective capacities as Administrative Trustees of the Trust
created and continued hereunder and not their individual capacities, or
such Administrative Trustees' successors in interest in such capacity, or
any successor administrative trustee appointed as herein provided.
"Affiliate" of any specified Person means any other Person directly or
---------
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
2
<PAGE>
"Bankruptcy Event" means, with respect to any Person, the occurrence
----------------
of any of the following events:
(A) Such Person, pursuant to or within the meaning of any
Bankruptcy Law:
(i) commences a voluntary case or proceeding;
(ii) consents to the entry of an order for relief against
it in an involuntary case or proceeding;
(iii) consents to the appointment of a Custodian (as defined
herein) of it or for all or substantially all of its property,
and such Custodian is not discharged within 60 days;
(iv) makes a general assignment for the benefit of its
creditors; or
(v) admits in writing its inability to pay its debts
generally as they become due; or
(B) A court of competent jurisdiction enters an order
or decree under any Bankruptcy Law that:
(i) is for relief against such Person in an involuntary case
or proceeding;
(ii) appoints a Custodian of such Person for all or
substantially all of its properties; or
(iii) orders the liquidation of such Person;
and in each case the order or decree remains unstayed and in effect
for 60 days.
"Bankruptcy Laws" means Title 11 of the United States Code, or similar
---------------
federal or state law for the relief of debtors. "Custodian" means any
receiver, trustee, assignee, liquidator, sequestrator, custodian or similar
official under any Bankruptcy Law.
"Board Resolution" means (i) a copy of a resolution certified by the
----------------
Secretary or an Assistant Secretary of the Depositor to have been duly
adopted by the Depositor's Board of Directors or a committee established
thereby and to be in full force and effect on the date of such
certification or (ii) a certificate signed by the
3
<PAGE>
authorized officer or officers of the Depositor to whom the Depositor's
Board of Directors or a committee established thereby has delegated its
authority, and in each case, delivered to the Trustees.
"Book-Entry Trust Preferred Securities Certificates" means
--------------------------------------------------
certificates representing Trust Preferred Securities issued in global,
fully registered form with a Depository as described in Section 5.11.
"Business Day" means a day other than (a) a Saturday or Sunday, or (b)
------------
a day on which banking institutions in the City of New York are authorized
or required by law or executive order to remain closed or (c) a day on
which the principal corporate trust office of the Property Trustee or
Debenture Trustee is closed for business.
"Certificate Depository Agreement" means the agreement among the
--------------------------------
Trust, the Property Trustee and The Depository Trust Company, as the
initial Depository, dated as of the Closing Date, relating to the Book-
Entry Trust Preferred Securities Certificates, substantially in the form
attached hereto as Exhibit B, as the same may be amended and supplemented
from time to time.
"Closing Date" means the time and date of delivery of Book-Entry Trust
------------
Preferred Securities Certificates and payment therefor pursuant to the
Underwriting Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
----
"Commission" means the Securities and Exchange Commission, as from
----------
time to time constituted, created under the Securities Exchange Act of
1934, as amended, or, if at any time after the execution of this Trust
Agreement such Commission is not existing and performing the duties now
assigned to it under the Trust Indenture Act, then the body performing such
duties at such time.
"Companies" means HECO, MECO and HELCO, collectively.
---------
"Corporate Trust Office" means the principal corporate trust office of
----------------------
the Property Trustee located in the State of New York which at the date
hereof is 101 Barclay Street, 21st Floor, New York, New York 10286,
Attention: Corporate Trust Trustee Administration.
"Creditor" has the meaning specified in Section 2.03.
--------
4
<PAGE>
"Debenture Event of Default" means an "Event of Default" as defined in
--------------------------
the applicable Indenture.
"Debenture Exchange" means the issuance of HECO Debentures by the
------------------
Company in exchange for Subsidiary Debentures held by the Trust pursuant to
Section 2.05(b).
"Debenture Redemption Date" means "Redemption Date" as defined in the
-------------------------
applicable Indenture or the Debentures.
"Debenture Trustee" means The Bank of New York, a New York banking
-----------------
corporation, in its capacity as trustee under the Indentures, or any
successor thereto appointed in accordance with the terms and provisions of
the applicable Indenture.
"Debentures" means, collectively, the HECO Debentures, the MECO
----------
Debentures and the HELCO Debentures.
"Definitive Trust Preferred Securities Certificates" means
--------------------------------------------------
certificates representing Trust Preferred Securities issued in
certificated, fully registered form as described in Section 5.12.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the
---------------------------
Delaware Code, 12 Del. C. (S) 3801, et seq., as it may be amended from time
to time.
"Delaware Trustee" means the entity identified as the "Delaware
----------------
Trustee" in the preamble to this Trust Agreement solely in its capacity as
Delaware Trustee of the Trust created and continued hereunder (and not in
its individual capacity) or its successor in interest in such capacity, or
any successor trustee appointed as herein provided.
"Depositor" has the meaning specified in the preamble to this Trust
---------
Agreement.
"Depository" means an organization registered as a "clearing agency"
----------
pursuant to Section 17A of the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder. The Depository Trust
Company, New York, New York, will be the initial Depository.
"Depository Participant" means a broker, lender, bank or other
----------------------
financial institution or other Person for whom from time to time the
Depository effects book-entry transfers and pledges of interests in
securities deposited with the Depository.
5
<PAGE>
"Distributable Debentures" means, collectively, HECO Debentures and,
------------------------
on and after the Debenture Exchange, Substituted HECO Debentures to be
distributed to Holders of the Trust Securities pursuant to Section 8.04(a).
"Distribution Date" has the meaning specified in Section 4.01(a).
-----------------
"Distributions" means amounts payable in respect of the Trust
-------------
Securities as provided in Section 4.01.
"Event of Default" means with respect to the Trust Preferred
----------------
Securities (whatever the reason for such Debenture Event of Default and
whether it shall be voluntary or involuntary or be effected by operation of
law or pursuant to any judgment, decree or order of any court or any order,
rule or regulation of any administrative or governmental body), (i) the
occurrence of a Debenture Event of Default, (ii) default by the Property
Trustee in the payment of any Distribution when it becomes due and payable,
and continuation of such default for a period of 30 days, (iii) default by
the Property Trustee in the payment of any Redemption Price of any Trust
Preferred Security or Common Security when it becomes due and payable, (iv)
default in the performance, or breach, in any material respect, of any
covenant or warranty of the Trustees herein (other than a covenant or
warranty a default in the performance of which or the breach of which is
dealt with in clause (ii) or (iii) above), and continuation of such default
or breach for a period of 60 days after there has been given, by registered
or certified mail, to the defaulting Trustee or Trustees by the Holders of
at least 25% in Liquidation Preference of the Outstanding Trust Preferred
Securities, a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a "Notice of
Default" under this Trust Agreement, or (v) the occurrence of a Bankruptcy
Event with respect to the Property Trustee and the failure by HECO to
appoint a successor Property Trustee within 60 days thereof.
"Expiration Date" has the meaning specified in Section 8.01.
---------------
"Extension Period" means the period or periods in which pursuant to
----------------
the applicable Indenture payments of interest on the related Debentures are
deferred by any of the Companies electing to extend the interest payment
periods thereof for a period (including any extensions thereof) not
exceeding 20 consecutive quarters with respect to each such deferral
period.
6
<PAGE>
"HECO Debentures" mean the 7.30% Junior Subordinated Deferrable
---------------
Interest Debentures, Series 1998 of the Depositor issued pursuant to the
HECO Junior Indenture.
"HECO Junior Indenture" means the Junior Indenture, dated as of
---------------------
December 1, 1998, between the Depositor and the Debenture Trustee, as
trustee thereunder, as amended or supplemented from time to time.
"HELCO" means Hawaii Electric Light Company, Inc.
-----
"HELCO Debentures" means the 7.30% Junior Subordinated Deferrable
----------------
Interest Debentures, Series 1998 of HELCO issued pursuant to the HELCO
Junior Indenture.
"HELCO Junior Indenture" means the Junior Indenture, dated as of
----------------------
December 1, 1998, between HELCO and the Debenture Trustee, as trustee
thereunder, as amended or supplemented from time to time.
"Holder" or "Securityholder" means a Person in whose name a Trust
--------------------------
Security or Securities is registered in the Securities Register; any such
Person is a beneficial owner within the meaning of the Delaware Business
Trust Act.
"Indemnified Person" means any of the Trustees, Affiliates of any
------------------
Trustee, or any officers, directors, shareholders, members, partners,
employees, representatives or agents of any Trustee, or any employee or
agent of the Trust or its Affiliates.
"Indentures" means, collectively, the HECO Junior Indenture, the MECO
----------
Junior Indenture and the HELCO Junior Indenture and "Indenture" means any
one of the Indentures.
"Investment Company Event" means the receipt by the Trust or HECO of
------------------------
an Opinion of Counsel, rendered by a law firm having a recognized federal
securities practice, to the effect that, as a result of the occurrence of a
change in law or regulation or a change (including a prospective change) in
interpretation or application of law or regulation by any legislative body,
court, governmental agency or regulatory authority (a "Change in 1940 Act
Law"), there is more than an insubstantial risk that the Trust is or will
be considered an "investment company" that is required to be registered
under the 1940 Act, which Change in 1940 Act law becomes effective on or
after the date of original issuance of the Trust Preferred Securities.
7
<PAGE>
"Lien" means any lien, pledge, charge, encumbrance, mortgage, deed of
----
trust, adverse ownership interest, hypothecation, assignment, security
interest or preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever.
"Like Amount" means (i) with respect to a redemption of Trust
-----------
Securities, Trust Securities having an aggregate Liquidation Preference
equal to the aggregate principal amount of Debentures to be
contemporaneously redeemed in accordance with the Indentures and the
proceeds of which will be used to pay the Redemption Price of such Trust
Securities and (ii) with respect to a distribution of Distributable
Debentures to Holders of Trust Securities in connection with the
dissolution and liquidation of the Trust, Distributable Debentures having
an aggregate principal amount equal to the aggregate Liquidation Preference
of the Trust Securities of the Holder to whom such Distributable Debentures
are distributed.
"Liquidation Date" means the date on which Distributable Debentures
----------------
are to be distributed to Holders of Trust Securities in connection with a
dissolution and liquidation of the Trust pursuant to Section 8.04(a).
"Liquidation Distribution" has the meaning specified in Section
------------------------
8.04(d).
"Liquidation Preference" means the stated liquidation preference of
----------------------
$25 per Trust Security.
"Majority in Liquidation Preference" means, with respect to the Trust
----------------------------------
Securities, or either class thereof, as the context may require, except as
provided in the terms of the Trust Preferred Securities or by the Trust
Indenture Act, Holders of Outstanding Trust Securities voting together as a
single class or Holders of Outstanding Trust Preferred Securities voting
separately as a class, who are the record owners of more than 50% of the
aggregate Liquidation Preference (including the stated amount that would be
paid on redemption, liquidation or otherwise, plus accumulated and unpaid
Distributions to the date upon which the voting percentages are determined)
of all Outstanding Trust Securities or all Outstanding Trust Preferred
Securities, as the case may be.
"MECO" means Maui Electric Company, Limited.
----
"MECO Debentures" means the ____% Junior Subordinated Deferrable
---------------
Interest Debentures, Series 1998 of MECO issued pursuant to the MECO Junior
Indenture.
8
<PAGE>
"MECO Junior Indenture" means the Junior Indenture, dated as of
---------------------
December 1, 1998, between MECO and the Debenture Trustee, as trustee
thereunder, as amended or supplemented from time to time.
"Maturity Date of the Debentures" means December 15, 2028, as such
date may be shortened or extended in accordance with the provisions of the
Indentures.
"1940 Act" means the Investment Company Act of 1940, as amended.
--------
"Officer's Certificate" means a certificate signed by any one of the
---------------------
Chairman, the President, any Vice President, the Treasurer, any Assistant
Treasurer or the Secretary of the Depositor.
"Opinion of Counsel" means a written opinion of counsel, who may be
------------------
counsel for the Trust, the Property Trustee or the Depositor or an
Affiliate of the Depositor, but not an employee of any thereof, and who
shall be acceptable to the Property Trustee.
"Original Trust Agreement" has the meaning specified in the recitals
------------------------
to this Trust Agreement.
"Outstanding", when used with respect to Trust Securities, means, as
-----------
of the date of determination, all Trust Securities theretofore issued under
this Trust Agreement, except:
(A) Trust Securities theretofore cancelled by the Administrative
Trustees or delivered to the Administrative Trustees for cancellation;
(B) Trust Securities for whose redemption money in the necessary
amount has been theretofore deposited with the Property Trustee or any
Paying Agent for the Holders of such Trust Securities; provided that,
--------
if such Trust Securities are to be redeemed, notice of such redemption
has been duly given pursuant to this Trust Agreement;
(C) Trust Securities which have been paid or in exchange for or
in lieu of which other Trust Securities have been executed and
delivered pursuant to Section 5.05, other than any such Trust
Securities in respect of which there shall have been presented to the
Property Trustee proof satisfactory to it that such Trust Securities
are held by a bona fide purchaser; and
9
<PAGE>
(D) as provided in Section 8.04(c);
provided, however, that in determining whether the Holders of the
-------- -------
requisite Liquidation Preference of the Outstanding Trust Preferred
Securities have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, Trust Preferred Securities owned by
the Depositor, any Trustee or any Affiliate of the Depositor or any
Trustee shall be disregarded and deemed not to be Outstanding, except
that (a) in determining whether any Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent
or waiver, only Trust Preferred Securities that such Trustee actually
knows to be so owned shall be so disregarded and (b) the foregoing shall
not apply at any time when all of the Outstanding Trust Preferred
Securities are owned by the Depositor, one or more of the Trustees and/or
any such Affiliate. Trust Preferred Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Property Trustee and the
Administrative Trustees the pledgee's right so to act with respect to
such Trust Preferred Securities and that the pledgee is not the Depositor
or any Affiliate of the Depositor.
"Paying Agent" means initially the Property Trustee and any co-
------------
paying agent appointed pursuant to Section 5.09.
"Payment Account" means a segregated non-interest-bearing corporate
---------------
trust account maintained by the Property Trustee in its trust department
for the benefit of the Securityholders in which all amounts paid to the
Property Trustee in respect of the Debentures or the Trust Guarantee will
be held and from which the Property Trustee or such other Paying Agent
shall make payments to the Securityholders in accordance with Article 4.
"Person" means any individual, corporation, partnership, limited
------
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization, government or any agency or political
subdivision thereof or any other entity.
"Property Trustee" means the commercial bank or trust company
----------------
identified as the "Property Trustee" in the preamble to this Trust
Agreement solely in its capacity as Property Trustee of the Trust
heretofore created and continued hereunder (and not in its individual
capacity), or
10
<PAGE>
its successor in interest in such capacity, or any successor property
trustee appointed as herein provided.
"PUC" means the Public Utilities Commission of the State of Hawaii.
---
"Redemption Date" means, with respect to any Trust Security to be
---------------
redeemed, the date fixed for such redemption by or pursuant to this Trust
Agreement; provided that each Debenture Redemption Date and the Maturity
--------
Date of the Debentures shall be a Redemption Date for a Like Amount of
Trust Securities.
"Redemption Price" means, with respect to any Trust Security, the
----------------
Liquidation Preference of such Trust Security, plus accumulated and unpaid
Distributions thereon to the Redemption Date.
"Securities Register" and "Securities Registrar" have the respective
------------------- --------------------
meanings specified in Section 5.04.
"Securityholder" or "Holder" means a Person in whose name a Trust
-------------- ------
Security or Securities is registered in the Securities Register; any such
Person is a beneficial owner within the meaning of the Delaware Business
Trust Act.
"Special Event" means a Tax Event or an Investment Company Event.
-------------
"Subsidiaries" means, collectively, MECO and HELCO.
------------
"Subsidiary Debentures" means, collectively, the MECO Debentures and
---------------------
the HELCO Debentures.
"Subsidiary Guarantees" means the Depositor's full and unconditional
---------------------
guarantees of the obligations of MECO and HELCO as set forth in Article 11
of the MECO Junior Indenture and the HELCO Junior Indenture, respectively.
"Substituted HECO Debentures" means 7.30% Junior Subordinated
---------------------------
Deferrable Interest Debentures, Series 1998 of the Depositor issuable
pursuant to the HECO Junior Indenture in any Debenture Exchange, in an
aggregate principal amount of up to $20,000,000, and being in all respects
identical to the HECO Debentures issued on the Closing Date, except that
such Substituted HECO Debentures will bear interest from the date of
original issuance thereof pursuant to the HECO Junior Indenture.
"Successor Securities" has the meaning specified in Section 9.01.
--------------------
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"Tax Action" means (a) any amendment to or change (including any
----------
announced prospective change) in the laws (or any regulations thereunder)
of the United States, or of any State or the District of Columbia, or of
any political subdivision or taxing authority thereof or therein, (b) any
judicial decision interpreting, applying or clarifying such laws or
regulations or (c) any administrative pronouncement or action that
represents an official position (including a clarification of an official
position) of the governmental authority or regulatory body making such
administrative pronouncement or taking such action, in each such case that
occurs on or after the date of original issuance of the Trust Preferred
Securities.
"Tax Event" means the receipt by HECO or the Trust of an opinion of
---------
counsel, rendered by a law firm having a recognized federal and state tax
and securities practice, to the effect that, as a result of a Tax Action,
there is more than an insubstantial risk that (i) the Trust is, or will be
within 90 days of the date thereof, subject to United States federal income
tax with respect to income received or accrued on the Debentures, (ii)
interest payable by any of the Companies on its respective Debentures is
not, or within 90 days of the date thereof will not be, deductible by such
Company, in whole or in part, for United States federal income tax
purposes, or (iii) the Trust is, or will be within 90 days of the date
thereof, subject to more than a de minimis amount of other taxes, duties or
other governmental charges.
"Trust" means the Delaware business trust created and continued hereby
-----
and identified in the preamble to this Trust Agreement.
"Trust Agreement" means this Amended and Restated Trust Agreement, as
---------------
the same may be modified, amended or supplemented in accordance with the
applicable provisions hereof, including all exhibits hereto, including, for
all purposes of this Trust Agreement and any such modification, amendment
or supplement, the provisions of the Trust Indenture Act that are deemed to
be a part of and govern this Trust Agreement and any such modification,
amendment or supplement, respectively.
"Trust Common Security" means a 7.30% Trust Common Security
---------------------
(Liquidation Preference $25 per Trust Common Security) issued by the Trust
representing an undivided beneficial interest in the assets of the Trust
having a Liquidation Preference of $25 and having the rights provided
therefor in this Trust Agreement, including the
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right to receive Distributions and a Liquidation Distribution as provided
herein.
"Trust Common Securities Certificate" means a certificate evidencing
-----------------------------------
ownership of Trust Common Securities, substantially in the form attached
hereto as Exhibit C.
"Trust Guarantee" means the Trust Guarantee Agreement executed and
---------------
delivered by the Depositor to The Bank of New York, a New York banking
corporation, as trustee thereunder, contemporaneously with the execution
and delivery of this Trust Agreement, for the benefit of the Holders of the
Trust Preferred Securities, as amended from time to time.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
-------------------
force at the date as of which this Trust Agreement was executed; provided,
--------
however, that in the event the Trust Indenture Act of 1939 is amended after
-------
such date, "Trust Indenture Act" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
"Trust Preferred Security" means a 7.30% Cumulative Quarterly Income
------------------------
Preferred Security, Series 1998 (Liquidation Preference $25 per Trust
Preferred Security) issued by the Trust representing an undivided preferred
beneficial interest in the assets of the Trust and having rights provided
therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
"Trust Preferred Securities Beneficial Owner" means a Person who is
-------------------------------------------
the beneficial owner of a book-entry interest, as reflected in the books of
the Depository or on the books of a Person maintaining an account with the
Depository (directly as a Depository Participant or as an indirect
participant or otherwise, in each case in accordance with the rules of the
Depository).
"Trust Preferred Securities Certificate" means a certificate
--------------------------------------
evidencing ownership of Trust Preferred Securities, substantially in the
form attached hereto as Exhibit D.
"Trust Property" means (i) the Debentures, (ii) any cash on deposit
--------------
in, or owing to, the Payment Account and (iii) all proceeds and rights in
respect of the foregoing and any other property and assets for the time
being held
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or deemed to be held by the Property Trustee pursuant to the terms of this
Trust Agreement.
"Trust Security" means any one of the Trust Common Securities or the
--------------
Trust Preferred Securities.
"Trust Securities Certificate" means any one of the Trust Common
----------------------------
Securities Certificates or the Trust Preferred Securities Certificates.
"25% in Liquidation Preference" means with respect to the Trust
-----------------------------
Securities, or either class thereof, as the context may require, except as
provided in the terms of the Trust Preferred Securities or by the Trust
Indenture Act, Holders of Outstanding Trust Securities voting together as a
single class or Holders of Outstanding Trust Preferred Securities voting
separately as a class, who are the record owners of 25% of the aggregate
Liquidation Preference (including the stated amount that would be paid on
redemption, liquidation or otherwise, plus accumulated and unpaid
Distributions to the date upon which the voting percentages are determined)
of all Outstanding Trust Securities or all Outstanding Trust Preferred
Securities, as the case may be.
"Underwriting Agreement" means the Underwriting Agreement, dated
----------------------
December 9, 1998, among the Trust, the Depositor and the Underwriters named
therein.
ARTICLE 2. CONTINUATION OF THE TRUST
SECTION 2.01. Name.
The Trust created and continued hereby shall be known as "HECO Capital
Trust II" as such name may be modified from time to time by the Administrative
Trustees following written notice to the Holders of Trust Securities and the
other Trustees, in which name the Trustees may conduct the business of the
Trust, make and execute contracts and other instruments on behalf of the Trust
and sue and be sued.
SECTION 2.02. Office of the Delaware Trustee; Principal Place of Business.
The address of the Delaware Trustee in the State of Delaware is White Clay
Center, Route 273, Newark, Delaware 19711, Attention: Corporate Trust
Department, or such other address in the State of Delaware as the Delaware
Trustee may designate by written notice to the Property Trustee, Securityholders
and the Depositor. The principal place of
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business of the Trust is c/o The Bank of New York, 101 Barclay Street, 21st
Floor, New York, New York 10286, Attention: Corporate Trust Trustee
Administration.
SECTION 2.03. Initial Contribution of Trust Property; Expenses of the Trust.
(a) The Property Trustee acknowledges receipt in trust from the Depositor
in connection with the Original Trust Agreement of the sum of $25, which
constituted the initial Trust Property.
(b) The Depositor shall be responsible for and shall pay for all
obligations (other than with respect to the Trust Securities) and all costs and
expenses of the Trust (including, but not limited to, costs and expenses
relating to the organization of the Trust, the issuance and sale of the Trust
Preferred Securities, the fees and expenses (including reasonable counsel fees
and expenses) of the Trustees as provided in Section 7.06, the costs and
expenses of accountants, attorneys, statistical or bookkeeping services,
expenses for printing and engraving and computing or accounting equipment,
Paying Agent(s), Securities Registrar, duplication, travel and telephone and
other telecommunications expenses and costs and expenses incurred in connection
with the disposition of Trust assets).
(c) The Depositor will pay any and all taxes (other than United States
withholding taxes attributable to the Trust or its assets) and all liabilities,
costs and expenses with respect to such taxes of the Trust.
(d) The Depositor's obligations under this Section 2.03 shall be for the
benefit of, and shall be enforceable by, the Property Trustee and any Person to
whom any such obligations, costs, expenses and taxes are owed (a "Creditor")
whether or not such Creditor has received notice hereof. The Property Trustee
and any such Creditor may enforce the Depositor's obligations under this Section
2.03 directly against the Depositor and the Depositor irrevocably waives any
right or remedy to require that the Property Trustee or any such Creditor take
any action against the Trust or any other Person before proceeding against the
Depositor. The Depositor agrees to execute such additional agreements as may be
necessary or desirable in order to give full effect to the provisions of this
Section 2.03.
(e) The Depositor shall make no claim upon the Trust Property for the
payment of such expenses.
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SECTION 2.04. Issuance of the Trust Securities.
The Depositor, on behalf of the Trust, executed and delivered the
Underwriting Agreement. Contemporaneously with the execution and delivery of
this Trust Agreement, not less than two Administrative Trustees, on behalf of
the Trust, shall execute in accordance with Section 5.02 and cause the Property
Trustee to authenticate and deliver to the Underwriters named in the
Underwriting Agreement a Book-Entry Trust Preferred Securities Certificate,
registered in the name of the nominee of the Depository, representing 2,000,000
Trust Preferred Securities having an aggregate Liquidation Preference of
$50,000,000, against payment by the Underwriters and receipt by the Property
Trustee of the aggregate purchase price of such Trust Preferred Securities of
$50,000,000. Contemporaneously therewith, not less than two Administrative
Trustees, on behalf of the Trust, shall execute in accordance with Section 5.02
and deliver to the Depositor a Trust Common Securities Certificate, registered
in the name of the Depositor, representing 61,856 Trust Common Securities having
an aggregate Liquidation Preference of $1,546,400, against payment by the
Depositor and receipt by the Property Trustee of the purchase price of such
Trust Common Securities of $1,546,400.
SECTION 2.05. Purchase and Exchange of Debentures.
(a) Contemporaneously with the execution and delivery of this Trust
Agreement, the Administrative Trustees, on behalf of the Trust, shall purchase
$31,546,400 aggregate principal amount of HECO Debentures from HECO, $10,000,000
aggregate principal amount of MECO Debentures from MECO and $10,000,000
aggregate principal amount of HELCO Debentures from HELCO, all of which
Debentures shall be registered in the name of the Property Trustee on behalf of
the Trust, and in satisfaction of the purchase price for such Debentures, shall
cause the Property Trustee, on behalf of the Trust, to deliver the sums of
$31,546,400, $10,000,000 and $10,000,000 to the Depositor, MECO and HELCO,
respectively, or an aggregate of $51,546,400, representing the proceeds of the
Trust Securities.
(b) Upon the occurrence of an Early Dissolution Event specified in Section
8.02(a), 8.02(b) or 8.02(d), provided that any necessary federal or state
regulatory authorizations or approvals have been obtained (including any
necessary approval of the PUC), and prior to the distribution to each
Securityholder of a Like Amount of Distributable Debentures and to the
liquidation of the Trust, the Depositor shall, no later than five Business Days
after the later of the date of such occurrence and the satisfaction of such
conditions, issue Substituted HECO Debentures pursuant to the HECO Junior
Indenture in an aggregate principal amount equal to the
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aggregate principal amount of the Subsidiary Debentures then held by the Trust
and registered in such names and denominations as the Property Trustee shall
request in writing no later than the close of business on the second Business
Day prior to the date of such issuance. Contemporaneously with the issuance of
such Substituted HECO Debentures, the Trust shall deliver, or cause to be
delivered, the certificates for such Subsidiary Debentures, accompanied by such
instruments of transfer as may be requested by the Depositor, to the Depositor
in exchange for such Substituted HECO Debentures and the Depositor shall
deliver, or cause to be delivered, such Substituted HECO Debentures in exchange
for such Subsidiary Debentures, accompanied by (x) an Officer's Certificate to
the effect that all conditions precedent to such Exchange and the issuance of
the Substituted HECO Debentures in this Trust Agreement have been satisfied (and
attaching any approvals referred to in the prior sentence) and (y) an Opinion of
Counsel to the effect that the Substituted HECO Debentures have been duly
authorized by the Depositor and, upon execution and authentication in accordance
with the provisions of the HECO Indenture and delivery to and payment for by the
Trust on the date of such opinion, will be entitled to the benefits of the HECO
Indenture and will be valid and binding obligations of the Depositor,
enforceable against the Depositor in accordance with their respective terms,
subject to bankruptcy, insolvency, reorganization, receivership, moratorium and
other similar laws affecting creditors' rights generally, and general principles
of equity.
SECTION 2.06. Declaration of Trust.
The exclusive purposes and functions of the Trust are (i) to issue and sell
Trust Securities and use the proceeds from such sale to acquire the Debentures,
(ii) to maintain the status of the Trust as a grantor trust for United States
federal income tax purposes, and (iii) except as otherwise limited herein, to
engage in only those other activities necessary, convenient or incidental
thereto. The Depositor hereby appoints the Trustees as trustees of the Trust,
to have all the rights, powers and duties to the extent set forth herein, and
the Trustees hereby accept such appointment. The Property Trustee hereby
declares that it will hold the Trust Property in trust upon and subject to the
conditions set forth herein for the benefit of the Securityholders. The
Administrative Trustees shall have all rights, powers and duties set forth
herein. The Delaware Trustee shall not be entitled to exercise any powers, nor
shall the Delaware Trustee have any of the duties and responsibilities of the
Property Trustee or the Administrative Trustees set forth herein. The Delaware
Trustee shall be one of the Trustees of the Trust for
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<PAGE>
the sole and limited purpose of fulfilling the requirements of Section 3807 of
the Delaware Business Trust Act.
SECTION 2.07. Authorization to Enter into Certain Transactions.
(a) The Trustees shall conduct the affairs of the Trust in accordance with
the terms of this Trust Agreement. Subject to the limitations set forth in
paragraph (b) of this Section 2.07 and Article VII, and in accordance with the
following provisions (1) and (2), the Trustees shall have the authority to enter
into all transactions and agreements determined by the Trustees to be
appropriate in exercising the authority, express or implied, otherwise granted
to the Trustees under this Trust Agreement, and to perform all acts in
furtherance thereof, including without limitation, the following:
(1) As among the Trustees, the Administrative Trustees shall have the
power and authority to act on behalf of the Trust with respect to the
following matters:
(A) issuing and selling the Trust Securities in accordance with
this Trust Agreement, and executing and delivering (after
countersignature of the Trust Preferred Securities by the Property
Trustee) Trust Securities Certificates representing the Trust
Securities; provided, however, that the Trust may issue no more than
one series of Trust Preferred Securities and no more than one series
of Trust Common Securities, and, provided further, that there shall be
no interests in the Trust other than the Trust Securities, and the
issuance of Trust Securities shall be limited to a one-time,
simultaneous issuance of both Trust Preferred Securities and Trust
Common Securities on the Closing Date;
(B) causing the Trust to enter into, and executing, delivering
and performing on behalf of the Trust, the Expense Agreement, the
Certificate Depository Agreement and such other agreements as may be
necessary or desirable in connection with the purposes and function of
the Trust, including the appointment of a successor Depository;
(C) assisting in registering the Trust Preferred Securities under
the Securities Act of 1933, as amended, and under state securities or
blue sky laws, and qualifying this Trust Agreement as a trust
indenture under the Trust Indenture Act;
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<PAGE>
(D) assisting in the listing of the Trust Preferred Securities
upon such securities exchange or exchanges as the Depositor shall
determine and the registration of the Trust Preferred Securities under
the Securities Exchange Act of 1934, as amended, and the preparation
and filing of all periodic and other reports and other documents
pursuant to the foregoing;
(E) acquiring the Debentures with the proceeds of the sale of the
Trust Securities and causing the Property Trustee to deliver payment
of the purchase price therefor; provided, however, that the
Administrative Trustees shall cause legal title to the Debentures to
be held of record in the name of the Property Trustee for the benefit
of the Holders of the Trust Securities;
(F) bringing or defending, paying, collecting, compromising,
arbitrating, resorting to legal action, or otherwise adjusting claims
or demands of or against the Trust unless the Property Trustee has the
exclusive power to so act;
(G) employing or otherwise engaging employees and agents (who may
be designated as officers with titles) and managers, contractors,
advisors, and consultants and paying reasonable compensation for such
services;
(H) causing the Trust to comply with the Trust's obligations
under the Trust Indenture Act;
(I) giving the certificate required by Section 314(a)(4) of the
Trust Indenture Act to the Property Trustee, which certificate may be
executed by any Administrative Trustee;
(J) incurring expenses that are necessary or incidental to carry
out any of the purposes of the Trust;
(K) appointing a Person to act as Securities Registrar in
accordance with this Trust Agreement for the Trust Securities;
(L) taking all actions that may be necessary or appropriate for
the preservation and the continuation of the Trust's valid existence,
rights, franchises and privileges as a statutory business trust under
the laws of the State of Delaware and of each other
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<PAGE>
jurisdiction in which such existence is necessary to protect the
limited liability of the Holders of the Trust Preferred Securities or
to enable the Trust to effect the purposes for which the Trust was
created;
(M) to the extent provided in this Trust Agreement, winding up
the affairs of the Trust and dissolving the Trust and preparing,
executing and filing the certificate of cancellation with the
Secretary of State of the State of Delaware;
(N) establishing a record date with respect to all actions to be
taken hereunder that require a record date be established, including
and with respect to, for the purposes of Section 316(c) of the Trust
Indenture Act, Distributions, voting rights, redemptions and
exchanges;
(O) sending notices (other than notices of default) or assisting
the Property Trustee in sending notices and other information
regarding the Trust Securities and the Debentures to Securityholders
in accordance with this Trust Agreement;
(P) qualifying the Trust to do business in any jurisdiction as
may be necessary or desirable; provided, that no such qualification
may be made in any jurisdiction if the effect of such qualification
may be to diminish the limited liability of the Holders of Trust
Preferred Securities as provided by this Trust Agreement and the
Delaware Business Trust Act;
(Q) registering transfers of the Trust Securities in accordance
with this Trust Agreement if the Property Trustee is not the
Securities Registrar; and
(R) executing all documents or instruments, performing all duties
and powers and taking any actions incidental to the foregoing as the
Administrative Trustees may from time to time determine are necessary
or advisable pursuant to the terms of the Trust Securities or to give
effect to the terms of this Trust Agreement for the benefit of the
Securityholders (without consideration of the effect of any such
action on any particular Securityholder).
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(2) As among the Trustees, the Property Trustee shall have the power,
duty and authority to act on behalf of the Trust with respect to the
following matters:
(A) establishing and maintaining the Payment Account and
appointing Paying Agents (subject to Section 5.09);
(B) receiving payment of the purchase price of the Trust
Securities;
(C) delivering payment of the purchase price of the Debentures to
HECO, MECO and HELCO, as applicable, and receiving and holding the
Debentures in its name for the benefit of the Trust;
(D) collecting interest, principal and any other payments on the
Debentures and depositing them in the Payment Account;
(E) making Distributions and other payments to the
Securityholders in respect of the Trust Securities, so long as the
Property Trustee is acting as Paying Agent, whether solely or with any
co-paying agent;
(F) exercising all of the rights, powers and privileges of a
holder under each Indenture and, if any Event of Default has occurred
and is continuing, for the benefit of the Holders of the Trust
Securities, in its discretion protecting and enforcing its rights as
holder of the Debentures subject to the rights of the Holders pursuant
to the terms of this Trust Agreement;
(G) sending notices of defaults, redemptions, Extension Periods,
dissolutions, liquidations and other information regarding the Trust
Securities and the Debentures to the Securityholders in accordance
with this Trust Agreement;
(H) distributing the Trust Property in accordance with the terms
of this Trust Agreement;
(I) taking any ministerial action incidental to the foregoing as
the Property Trustee may from time to time determine is necessary or
advisable to give effect to the terms of this Trust Agreement and
protect and conserve the Trust Property for the benefit of the
Securityholders (without consideration of the effect of any such
action on any particular Securityholder); and
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(J) registering transfers and exchanges of the Trust
Preferred Securities in accordance with this Trust Agreement (but
only if at such time the Property Trustee shall be the Securities
Registrar).
(b) So long as this Trust Agreement remains in effect, the Trust (or the
Trustees acting on behalf of the Trust) shall not undertake any business,
activities or transaction except as expressly provided herein or contemplated
hereby. In particular, the Trustees acting on behalf of the Trust shall not (i)
acquire any assets or investments (other than the Debentures), reinvest the
proceeds derived from investments, possess any power or otherwise act in such a
way as to vary the Trust Property or engage in any activities not authorized by
this Trust Agreement, (ii) sell, assign, transfer, exchange, mortgage, pledge,
set-off or otherwise dispose of any of the Trust Property or interests therein,
including to Securityholders, except as expressly provided herein, (iii) take
any action that would cause the Trust to fail or cease to qualify as a grantor
trust for United States federal income tax purposes, (iv) incur any indebtedness
for borrowed money or issue any other debt, (v) issue any securities or other
evidences of beneficial ownership of, or beneficial interests in, the Trust
other than the Trust Securities, or (vi) take or consent to any action that
would result in the placement of a Lien on any of the Trust Property. The
Administrative Trustees shall defend all claims and demands of all Persons at
any time claiming any Lien on any of the Trust Property adverse to the interest
of the Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Trust Preferred
Securities, the Depositor shall have the right and responsibility to assist the
Trust with respect to, or effect on behalf of the Trust, the following (and any
actions taken by the Depositor in furtherance of the following prior to the date
of this Trust Agreement are hereby ratified and confirmed in all respects):
(1) preparing for filing with the Commission and executing on behalf
of the Trust a registration statement on Form S-3 in relation to the Trust
Preferred Securities, the Trust Guarantee and certain related obligations,
including any amendments thereto;
(2) determining the States in which to take appropriate action to
qualify or register for sale all or part of the Trust Preferred Securities
and doing any and all such acts, other than actions which must be taken by
or on behalf of the Trust, and advising the Trustees of actions they must
take on behalf of the Trust, and
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preparing for execution and filing any documents to be executed and filed
by the Trust or on behalf of the Trust, as the Depositor deems necessary or
advisable in order to comply with the applicable laws of any such States;
(3) preparing for filing and executing on behalf of the Trust an
application to the New York Stock Exchange or any other national stock
exchange or The Nasdaq National Market for listing upon notice of issuance
of any Trust Preferred Securities;
(4) preparing for filing with the Commission and executing on behalf
of the Trust a registration statement on Form 8-A relating to the
registration of the Trust Preferred Securities and the Trust Guarantee
under Section 12(b) of the Securities Exchange Act of 1934, as amended,
including any amendments thereto;
(5) negotiating the terms of, and executing and delivering on behalf
of the Trust, the Underwriting Agreement providing for the sale of the
Trust Preferred Securities and such other agreements as may be necessary or
desirable in connection with the consummation thereof;
(6) using reasonable efforts to obtain any necessary federal or state
authorizations or approvals, including any approval of the PUC, in
connection with a Debenture Exchange; and
(7) executing all documents or instruments, or performing all duties
and powers, and doing all things for or on behalf of the Trust in all
matters necessary or incidental to the foregoing.
(d) Notwithstanding anything herein to the contrary, the Administrative
Trustees and the Depositor are authorized and directed to conduct the affairs of
the Trust and to operate the Trust so that (i) the Trust will not be deemed to
be an "investment company" required to be registered under the 1940 Act, or
classified as an association taxable as a corporation, a partnership or other
than as a grantor trust for United States federal income tax purposes and (ii)
the Debentures will be treated as indebtedness of the respective Companies for
United States federal income tax purposes. In this connection, the
Administrative Trustees and each of the Companies are authorized to take any
action, not inconsistent with applicable law, the certificate of trust filed
with the Secretary of State of the State of Delaware with respect to the Trust
(as amended or restated from time to time, the "Certificate of Trust"), or this
Trust Agreement, that the Administrative Trustees and the
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Companies determine in their discretion to be necessary or desirable for such
purposes.
SECTION 2.08. Assets of Trust.
The assets of the Trust shall consist of the Trust Property.
SECTION 2.09. Title to Trust Property.
Legal title to all Trust Property shall be vested at all times in the
Property Trustee (in its capacity as such) and shall be held and administered by
the Property Trustee for the benefit of the Securityholders in accordance with
this Trust Agreement.
ARTICLE 3. PAYMENT ACCOUNT
SECTION 3.01. Payment Account.
(a) On or prior to the Closing Date, the Property Trustee shall establish
the Payment Account. All monies and other property deposited or held from time
to time in the Payment Account shall be held by the Property Trustee for the
exclusive benefit of the Securityholders and for distributions as provided
herein, including (and subject to) any priority of payments provided for herein.
The Property Trustee shall have exclusive control of the Payment Account for the
purpose of making deposits in and withdrawals from the Payment Account in
accordance with this Trust Agreement; provided that any Paying Agent shall have
the right of withdrawal with respect to the Payment Account solely for the
purpose of making the payments contemplated under Article 4.
(b) The Property Trustee shall deposit in the Payment Account, promptly
upon receipt, all payments of principal of or interest on, and any other
payments or proceeds with respect to, the Debentures and any amounts paid to the
Property Trustee pursuant to the Trust Guarantee. Amounts held in the Payment
Account shall not be invested by the Property Trustee pending distribution
thereof.
ARTICLE 4. DISTRIBUTIONS; REDEMPTION
SECTION 4.01. Distributions.
(a) Distributions on the Trust Securities shall be cumulative, and will
accumulate whether or not there are funds of the Trust available for the payment
of Distributions.
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Distributions shall accumulate from December 15, 1998 and, except during an
Extension Period for the Debentures pursuant to the applicable Indenture, shall
be payable quarterly in arrears on March 31, June 30, September 30 and December
31 of each year, commencing on March 31, 1999. In the event that any date on
which Distributions are otherwise payable on the Trust Securities is not a
Business Day, then payment of such Distributions shall be made on the next
succeeding day that is a Business Day (and without any additional Distributions
or other payment in respect of any such delay), except that, if such Business
Day is in the next succeeding calendar year, payment of such Distributions shall
be made on the immediately preceding Business Day (without any reduction in
Distributions in respect of such early payment), in each case with the same
force and effect as if made on the date such payment was originally payable
(each date on which Distributions are payable in accordance with this Section
4.01(a) is referred to as a "Distribution Date").
(b) Within two Business Days after receipt by the Property Trustee of
notice of an Extension Period pursuant to Section 4.01 of any Indenture, the
Property Trustee shall give notice thereof to the Securityholders in the manner
and to the extent provided in Section 10.07.
(c) The Trust Securities represent undivided beneficial interests in the
Trust Property, and, subject to Sections 4.03 and 4.06 hereof, all Distributions
will be made pro rata on each of the Trust Securities. Distributions on the
Trust Securities shall be payable at a rate of 7.30% per annum of the
Liquidation Preference of the Trust Securities. The amount of Distributions
payable for any full quarterly period shall be computed on the basis of a 360-
day year of twelve 30-day months, except for any period shorter than a full
calendar month, in which case the amount shall be computed on the basis of the
actual number of days elapsed in such period. During an Extension Period for the
Debentures, the rate per annum at which Distributions on the Trust Securities
accumulate shall be increased by an amount such that the aggregate amount of
Distributions that accumulate on all Trust Securities during any such Extension
Period is equal to the aggregate amount of interest (including interest payable
on unpaid interest at the rate per annum set forth above, compounded quarterly)
that accrues during any such Extension Period on the Debentures.
(d) Distributions on the Trust Securities shall be made from the Payment
Account by the Property Trustee or any Paying Agent and shall be payable on each
Distribution Date only to the extent that the Trust has funds then available in
the Payment Account for the payment of such Distributions.
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(e) Distributions on the Trust Securities on each Distribution Date shall
be payable to the Holders thereof as they appear on the Securities Register for
the Trust Securities on the relevant record date, which, as long as the Trust
Preferred Securities are in book-entry-only form, shall be one Business Day
prior to such Distribution Date; provided, however, that in the event that the
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Trust Preferred Securities are not in book-entry-only form, the relevant record
date shall be the day that is 15 days prior to the relevant Distribution Date,
whether or not a Business Day.
(f) If Distributions are not paid when scheduled, such accumulated
Distributions shall be paid to the Holders of record of Trust Securities as they
appear on the books and records of the Trust on the record date as determined
under Section 4.01(e) above with respect to the actual payment date for such
accumulated Distributions.
SECTION 4.02. Redemption.
(a) On each Debenture Redemption Date and the Maturity Date of the
Debentures, the Property Trustee will be required to redeem a Like Amount of
Trust Securities at the Redemption Price.
(b) Notice of redemption shall be given by the Property Trustee by first-
class mail, postage prepaid, mailed not less than 30 nor more than 60 days prior
to the Redemption Date to each Holder of Trust Securities to be redeemed, at
such Holder's address appearing in the Securities Register. All notices of
redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) the CUSIP number;
(4) the place or places where Trust Securities Certificates are to be
surrendered for payment of the Redemption Price;
(5) that on the Redemption Date the Redemption Price will become
payable upon each such Trust Security to be redeemed and that Distributions
thereon will cease to accumulate on and after such date; and
(6) if less than all of the Outstanding Trust Securities are to be
redeemed, the identification and total Liquidation Preference of the
particular Trust Securities to be redeemed.
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(c) The Trust Securities redeemed on each Redemption Date shall be
redeemed at the Redemption Price with the proceeds from the contemporaneous
redemption or repayment on the Maturity Date of the Debentures. Redemptions of
the Trust Securities shall be made and the Redemption Price shall be payable on
each Redemption Date only to the extent that the Trust has funds then available
in the Payment Account for the payment of such Redemption Price.
(d) If the Trust, by action of the Property Trustee, gives a notice of
redemption in respect of any Trust Preferred Securities, then, by 12:00 noon,
New York time, on the Redemption Date, subject to Section 4.02(c), the Property
Trustee will, so long as the Trust Preferred Securities are in book-entry-only
form, deposit irrevocably with the Depository funds sufficient to pay the
applicable Redemption Price and will give the Depository irrevocable
instructions and authority to pay the applicable Redemption Price to the Holders
thereof. If the Trust Preferred Securities are not in book-entry-only form,
then, on the Redemption Date, subject to Section 4.02(c), the Property Trustee
will irrevocably deposit with the Paying Agent funds sufficient to pay the
Redemption Price for the Trust Preferred Securities being redeemed on such date
and will give the Paying Agent irrevocable instructions and authority to pay the
Redemption Price to the Holders of such Trust Preferred Securities upon
surrender of their Trust Preferred Securities Certificates. Notwithstanding the
foregoing, Distributions payable on or prior to the Redemption Date for any
Trust Securities called for redemption shall be payable to the Holders of such
Trust Securities as they appear on the Securities Register for the Trust
Securities on the relevant record dates for the related Distribution Dates. If
notice of redemption shall have been given and funds irrevocably deposited as
required, then upon the date of such deposit, all rights of Securityholders
holding Trust Securities so called for redemption will cease, except the right
of such Securityholders to receive the Redemption Price, but without interest on
such Redemption Price, and such Trust Securities will cease to be Outstanding.
In the event that any Redemption Date is not a Business Day, then payment of the
Redemption Price payable on such Redemption Date will be made on the next
succeeding day which is a Business Day (and without any additional Distributions
or other payment in respect of any such delay), except that, if such Business
Day is in the next succeeding calendar year, such payment will be made on the
immediately preceding Business Day (without any reduction in Distributions in
respect of such early payment), in each case with the same force and effect as
if made on such Redemption Date. In the event that payment of the Redemption
Price in respect of any Trust Securities called for redemption is improperly
withheld or refused, and not paid either by the
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Trust or by the Depositor pursuant to the Trust Guarantee, Distributions on such
Trust Securities will continue to accumulate, at the then applicable rate, from
the Redemption Date originally established by the Trust for such Trust
Securities to the date such Redemption Price is actually paid, in which case the
actual payment date will be the date fixed for redemption for purposes of
calculating the Redemption Price.
(e) Payment of the Redemption Price on the Trust Securities shall be made
to the Holders thereof as they appear on the Securities Register for the Trust
Securities on the relevant record date, which as long as the Trust Preferred
Securities are in book-entry-only form, shall be one Business Day prior to the
Redemption Date; provided, however, that in the event that the Trust Securities
are not in book-entry-only form, the relevant record date shall be the date that
is 15 days prior to the Redemption Date.
(f) If less than all the Outstanding Trust Securities are to be redeemed on
a Redemption Date, then the aggregate Liquidation Preference of Trust Securities
to be redeemed shall be allocated on a pro rata basis (based on Liquidation
Preference) among the Trust Common Securities and the Trust Preferred
Securities. The particular Trust Preferred Securities to be redeemed shall be
selected not more than 60 days prior to the Redemption Date by the Property
Trustee from the Outstanding Trust Preferred Securities not previously called
for redemption, by lot or by such method as the Property Trustee shall deem fair
and appropriate and which may provide for the selection for redemption of
portions (equal to $25 or an integral multiple of $25 in excess thereof) of the
Liquidation Preference of Trust Preferred Securities of a denomination larger
than $25; provided that, in respect of Trust Preferred Securities registered in
the name of and held of record by the Depository or its nominee (or any
successor Depository or its nominee), the distribution of the proceeds of such
redemption will be made in accordance with the procedures applied by such
Depository or nominee. The Trust may not redeem fewer than all of the
Outstanding Trust Preferred Securities unless all accumulated and unpaid
Distributions have been paid on all Trust Preferred Securities for all quarterly
distribution periods terminating on or prior to the Redemption Date. The
Property Trustee shall promptly notify the Securities Registrar in writing of
the Trust Preferred Securities selected for redemption and, in the case of any
Trust Preferred Securities selected for partial redemption, the Liquidation
Preference thereof to be redeemed. If fewer than all of the Trust Securities
represented by a Trust Securities Certificate are redeemed, not less than two
Administrative Trustees shall execute for the Holder a new Trust Securities
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Certificate representing the unredeemed Trust Securities. For all purposes of
this Trust Agreement, unless the context otherwise requires, all provisions
relating to the redemption of Trust Preferred Securities shall relate, in the
case of any Trust Preferred Securities redeemed or to be redeemed only in part,
to the portion of the Liquidation Preference of Trust Preferred Securities which
has been or is to be redeemed.
SECTION 4.03. Subordination of Trust Common Securities.
(a) Payment of Distributions on, and the Redemption Price of, the Trust
Securities, as applicable, shall be made pro rata based on the Liquidation
Preference of the Trust Securities; provided, however, that if on any
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Distribution Date or Redemption Date, a Debenture Event of Default shall have
occurred and be continuing, no payment of any Distribution on, or Redemption
Price of, any Common Security, and no other payment on account of the
redemption, liquidation or other acquisition of Trust Common Securities, shall
be made unless payment in full in cash of all accumulated and unpaid
Distributions on all Outstanding Trust Preferred Securities for all distribution
periods terminating on or prior thereto, or in the case of payment of the
Redemption Price, the full amount of such Redemption Price on all Outstanding
Trust Preferred Securities then being redeemed, shall have been made or provided
for, and all funds immediately available to the Property Trustee shall first be
applied to the payment in full in cash of all Distributions on, the Redemption
Price of, Trust Preferred Securities then due and payable.
(b) In the case of any Event of Default under this Trust Agreement
resulting from a Debenture Event of Default, the Holder of Trust Common
Securities will be deemed to have waived any right to act with respect to any
such Event of Default until the effect of such Event of Default has been cured,
waived or otherwise eliminated. Until any such Event of Default has been so
cured, waived or otherwise eliminated, the Property Trustee shall act solely for
the benefit of the Holders of the Trust Preferred Securities and not the Holder
of the Trust Common Securities, and only the Holders of the Trust Preferred
Securities will have the right to direct the Property Trustee to act for their
benefit.
SECTION 4.04. Payment Procedures.
Payments of Distributions pursuant to Section 4.01 in respect of the Trust
Preferred Securities shall be made by check mailed by the Paying Agent to the
address of the Holder thereof as such address shall appear on the Securities
Register or, if the Trust Preferred Securities are held by a Depository or its
nominee, such Distributions shall be made to the
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Depository by wire transfer in immediately available funds. Payment of the
Redemption Price of or Liquidation Distribution on the Trust Preferred
Securities shall be made in immediately available funds upon surrender of the
Trust Preferred Securities Certificates representing such Trust Preferred
Securities at the Corporate Trust Office of the Property Trustee or, if the
Trust Preferred Securities are held by a Depository or its nominee, such
Redemption Price or Liquidation Distribution shall be made to the Depository by
wire transfer in immediately available funds. Payments of Distributions pursuant
to Section 4.01 in respect of the Trust Common Securities, and payment of the
Redemption Price of or Liquidation Payment on the Trust Common Securities, shall
be made in such manner as shall be mutually agreed between the Property Trustee
and the Holder of the Trust Common Securities.
SECTION 4.05. Tax Returns and Reports.
The Administrative Trustees shall prepare (or cause to be prepared), at the
Depositor's expense, and file all Federal, State and local tax and information
returns and reports required to be filed by or in respect of the Trust. In this
regard, the Administrative Trustees shall (i) prepare and file (or cause to be
prepared or filed) the appropriate Internal Revenue Service Form required to be
filed in respect of the Trust in each taxable year of the Trust and (ii) prepare
and furnish (or cause to be prepared and furnished) to each Securityholder the
related Internal Revenue Service Form 1099 OID, or any successor form or the
information required to be provided on such form. The Administrative Trustees
shall provide the Depositor and the Property Trustee with a copy of all such
returns, reports and schedules promptly after such filing or furnishing. The
Trustees shall comply with United States Federal withholding and backup
withholding tax laws and information reporting requirements with respect to any
payments to Securityholders under the Trust Securities.
SECTION 4.06. Payments under Indentures.
Any amount payable hereunder to any Holder of Trust Preferred Securities
shall be reduced by the amount of any corresponding payment such Holder has
directly received pursuant to Section 6.07 of the Indentures or pursuant to the
Trust Guarantee or the Subsidiary Guarantees. Notwithstanding the provisions
hereunder to the contrary, Securityholders acknowledge that any Holder of Trust
Preferred Securities that receives payment under Section 6.07 of the Indentures
may receive amounts greater than the amount such Holder may be entitled to
receive pursuant to the other provisions of this Trust Agreement.
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SECTION 4.07. Payments of Taxes, Duties, Etc. of the Trust.
Upon receipt under the Debentures of Additional Sums (as defined in the
HECO Indenture), the Property Trustee at the direction of an Administrative
Trustee or the Depositor shall promptly pay any taxes, duties or governmental
charges of whatsoever nature (other than withholding taxes) imposed on the Trust
by the United States or any other taxing authority.
ARTICLE 5. TRUST SECURITIES CERTIFICATES
SECTION 5.01. Initial Ownership.
Upon the creation of the Trust and the contribution by the Depositor
pursuant to Section 2.03 and until the issuance of the Trust Securities, and at
any time during which no Trust Securities are Outstanding, the Depositor shall
be the sole beneficial owner of the Trust.
SECTION 5.02. The Trust Securities Certificates.
The Trust Securities Certificates shall be issued in denominations of $25
Liquidation Preference and integral multiples thereof. Trust Preferred
Securities Certificates representing fractional interests shall not be issued.
Trust Common Securities Certificates shall be executed on behalf of the Trust by
manual signatures of not less than two Administrative Trustees. Trust Preferred
Securities Certificates shall be executed on behalf of the Trust by manual or
facsimile signatures of not less than two Administrative Trustees and shall be
authenticated by the countersignature of the Property Trustee. Trust Securities
Certificates bearing the manual or facsimile signatures of individuals who were,
at the time when such signatures shall have been affixed, authorized to sign on
behalf of the Trust, shall be validly issued and entitled to the benefits of
this Trust Agreement, notwithstanding that such individuals or any of them shall
have ceased to be so authorized prior to the delivery of such Trust Securities
Certificates or did not hold such offices at the date of delivery of such Trust
Securities Certificates. A transferee of a Trust Securities Certificate shall
become a Securityholder, and shall be entitled to the rights and subject to the
obligations of a Securityholder hereunder, upon due registration of such Trust
Securities Certificate in such transferee's name pursuant to Section 5.04.
SECTION 5.03. Execution and Delivery of Trust Securities
Certificates.
On the Closing Date, the Administrative Trustees shall cause Trust
Securities Certificates, in an aggregate
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Liquidation Preference as provided in Section 2.04, to be executed on behalf of
the Trust as provided in Section 5.02 and delivered in accordance with the
provisions of Section 2.04.
SECTION 5.04. Registration of Transfer and Exchange of Trust Preferred
Securities Certificates.
(a) A registrar appointed by the Administrative Trustees (the "Securities
Registrar") shall keep or cause to be kept, at the office or agency maintained
pursuant to Section 5.08, a register (the "Securities Register") in which,
subject to such reasonable regulations as it may prescribe, the Securities
Registrar shall provide for the registration of Trust Securities Certificates
(subject to Section 5.10 in the case of the Trust Common Securities
Certificates) and registration of transfers and exchanges of Trust Preferred
Securities Certificates as herein provided. The Property Trustee shall be the
initial Securities Registrar; any successor Securities Registrar shall be
appointed by the Administrative Trustees.
(b) Upon surrender for registration of transfer of any Trust Preferred
Securities Certificate at the office or agency maintained pursuant to Section
5.08, not less than two Administrative Trustees shall execute and deliver, in
the name of the designated transferee or transferees, one or more new Trust
Preferred Securities Certificates representing the same number of Trust
Preferred Securities dated the date of execution by the Administrative Trustees.
At the option of a Holder, Trust Preferred Securities Certificates may be
exchanged for other Trust Preferred Securities Certificates upon surrender of
the Trust Preferred Securities Certificates to be exchanged at the office or
agency maintained pursuant to Section 5.08. The Securities Registrar shall not
be required to register or cause to be registered the transfer of any Trust
Preferred Securities after such Trust Preferred Securities have been called for
redemption, during the period from 15 days before mailing of notice of
redemption and ending on such notice date or after the Liquidation Date.
(c) Trust Preferred Securities presented or surrendered for registration of
transfer or exchange shall be accompanied by a written instrument of transfer in
form satisfactory to the Administrative Trustees and the Securities Registrar
duly executed by the Holder or such Holder's attorney duly authorized in
writing. Each Trust Preferred Securities Certificate surrendered for
registration of transfer or exchange shall be cancelled and subsequently
disposed of by the Property Trustee in accordance with its customary practice.
(d) No service charge shall be made for any registration of transfer or
exchange of Trust Preferred Securities, but the
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Securities Registrar may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any transfer or
exchange of Trust Preferred Securities.
SECTION 5.05. Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates.
If (i) any mutilated Trust Securities Certificate shall be surrendered to
the Securities Registrar, or if the Securities Registrar shall receive evidence
to its satisfaction of the destruction, loss or theft of any Trust Securities
Certificate, and (ii) there shall be delivered to the Securities Registrar and
the Administrative Trustees such security or indemnity as may be required by
them to hold the Securities Registrar, the Trustees and the Trust harmless, then
in the absence of notice that such Trust Securities Certificate shall have been
acquired by a bona fide purchaser, not less than two of the Administrative
Trustees, on behalf of the Trust shall execute and make available for delivery,
in exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Trust Securities Certificate, a new Trust Securities Certificate of like tenor.
In connection with the issuance of any new Trust Securities Certificate under
this Section 5.05, the Administrative Trustees or the Securities Registrar may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection therewith. Any duplicate Trust
Securities Certificate issued pursuant to this Section 5.05 shall constitute
conclusive evidence of an undivided beneficial interest in the assets of the
Trust, as if originally issued, whether or not the lost, stolen or destroyed
Trust Securities Certificate shall be found at any time.
SECTION 5.06. Persons Deemed Securityholders.
Prior to due presentation of a Trust Security Certificate for registration
of transfer, the Administrative Trustees or the Securities Registrar shall treat
the Person in whose name any Trust Securities Certificate shall be registered in
the Securities Register as the owner and Holder of such Trust Securities
Certificate for the purpose of receiving Distributions and for all other
purposes whatsoever, and neither the Trustees nor the Securities Registrar shall
be bound by any notice to the contrary.
SECTION 5.07. Access to List of Securityholders' Names and Addresses.
In the event that the Property Trustee is no longer the Securities
Registrar, the Administrative Trustees or the Depositor shall furnish or cause
to be furnished (i) to the
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Property Trustee, quarterly not later than 10 days prior to a Distribution Date,
and (ii) to the Property Trustee, promptly after receipt by the Administrative
Trustees or the Depositor of a request therefor from the Property Trustee in
order to enable the Paying Agent to pay Distributions in accordance with Section
4.01 hereof, a list, in such form as the Property Trustee may reasonably
require, of the names and addresses of the Securityholders as of the most recent
record date, in each case to the extent such information is in the possession or
control of the Administrative Trustees or the Depositor and is not identical to
a previously supplied list or has not otherwise been received by the Property
Trustee. The rights of Securityholders to communicate with other Securityholders
with respect to their rights under this Trust Agreement or under the Trust
Securities, and the corresponding rights of the Property Trustee shall be as
provided in the Trust Indenture Act. Each Holder, by receiving and holding a
Trust Securities Certificate, shall be deemed to have agreed not to hold the
Depositor or the Trustees accountable by reason of the disclosure of its name
and address, regardless of the source from which such information was derived.
SECTION 5.08. Maintenance of Office or Agency.
The Property Trustee shall maintain in New York, New York, an office or
offices or agency or agencies where Trust Preferred Securities may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Trustees in respect of the Trust Securities Certificates
may be served. The Property Trustee shall give prompt written notice to the
Depositor and to the Securityholders of any change in the location of the
Securities Register or any such office or agency, which shall initially be at
the Corporate Trust Office of the Property Trustee.
SECTION 5.09. Appointment of Paying Agent.
The Paying Agent shall make Distributions to Securityholders from the
Payment Account and shall report the amounts of such Distributions to the
Property Trustee and the Administrative Trustees. Any Paying Agent shall have
the revocable power to withdraw funds from the Payment Account for the purpose
of making Distributions. The Administrative Trustees may revoke such power and
remove the Paying Agent, provided that such revocation and removal with respect
to the sole Paying Agent shall not become effective until the appointment of a
successor. The Paying Agent shall initially be the Property Trustee and any
co-paying agent chosen by the Property Trustee and approved by the
Administrative Trustees and the Depositor. Any Person acting as Paying Agent
shall be permitted to resign as Paying Agent upon 30 days' written
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notice to the Administrative Trustees and the Depositor, and, if applicable, the
Property Trustee, provided that such resignation with respect to the sole Paying
Agent shall not become effective until the appointment of a successor. In the
event that the Property Trustee shall no longer be the Paying Agent or a
successor Paying Agent shall resign or its authority to act be revoked, the
Administrative Trustees shall appoint a successor that is acceptable to the
Property Trustee (in the case of any other Paying Agent) and the Depositor to
act as Paying Agent (which shall be a bank or trust company and have a combined
capital and surplus of at least $50,000,000). The Administrative Trustees shall
cause such successor Paying Agent or any additional Paying Agent approved by
the Administrative Trustees to execute and deliver to the Trustees an instrument
in which such successor Paying Agent or additional Paying Agent shall agree with
the Trustees that as Paying Agent, such successor Paying Agent or additional
Paying Agent will hold all sums, if any, held by it for payment to the
Securityholders in trust for the benefit of the Securityholders entitled thereto
until such sums shall be paid to such Securityholders. The Paying Agent shall
return all of such sums remaining unclaimed to the Property Trustee and upon
removal of a Paying Agent such Paying Agent shall also return such sums in its
possession to the Property Trustee. The provisions of Sections 7.01, 7.03 and
7.06 shall apply to the Property Trustee also in its role as Paying Agent, for
so long as the Property Trustee shall act as Paying Agent and, to the extent
applicable, to any other Paying Agent appointed hereunder. Any reference in this
Trust Agreement to the Paying Agent shall include any co-paying agent unless the
context requires otherwise.
SECTION 5.10. No Transfer of Trust Common Securities by Depositor.
To the fullest extent permitted by law, any attempted transfer of the Trust
Common Securities shall be void, except for transfers permitted by Article 5 of
the HECO Junior Indenture. The Administrative Trustees shall cause each
Trust Common Securities Certificate issued to the Depositor to contain a legend
stating "THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT TO THE EXTENT PROVIDED IN
THE TRUST AGREEMENT (AS DEFINED BELOW)". By execution of this Trust
Agreement, the Depositor agrees to the foregoing restrictions.
SECTION 5.11. Book-Entry Trust Preferred Securities Certificates; Trust Common
Securities Certificate.
(a) A single Trust Common Securities Certificate representing the Trust
Common Securities shall be issued to the Depositor in the form of a definitive
Trust Common Securities Certificate.
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(b) The Trust Preferred Securities, upon original issuance on the Closing
Date, will not be engraved but will be issued in the form of one printed or
typewritten Book-Entry Trust Preferred Securities Certificate, to be delivered
to The Depository Trust Company, the initial Depository, by, or on behalf of,
the Trust. Such Book-Entry Trust Preferred Securities Certificate shall
initially be registered on the Securities Register in the name of Cede & Co.,
the nominee of the initial Depository. No Trust Preferred Securities Beneficial
Owner will receive a Definitive Trust Preferred Securities Certificate
representing such Trust Preferred Securities Beneficial Owner's interest in such
Book-Entry Trust Preferred Securities Certificate, except as provided in Section
5.12. Unless and until Definitive Trust Preferred Securities Certificates have
been issued to the Trust Preferred Securities Beneficial Owners pursuant to
Section 5.12:
(1) the provisions of this Section 5.11(b) shall be in full force and
effect;
(2) the Trust and the Trustees shall be entitled to deal with the
Depository for all purposes of this Trust Agreement (including the payment of
Distributions on the Trust Preferred Securities and receiving approvals, votes
or consents hereunder) as the sole Holder of the Trust Preferred Securities and
shall have no obligation to the Trust Preferred Securities Beneficial Owners;
(3) to the extent that the provisions of this Section 5.11(b) conflict
with any other provisions of this Trust Agreement, the provisions of this
Section 5.11(b) shall control; and
(4) the rights of the Trust Preferred Securities Beneficial Owners
shall be exercised only through the Depository and shall be limited to those
established by law and agreements between such Trust Preferred Securities
Beneficial Owners and the Depository and/or the Depository Participants and
pursuant to the Certificate Depository Agreement the Depository shall receive
and transmit payments of Distributions to such Depository Participants. The
Depository will make book-entry transfers among the Depository Participants;
provided, that solely for the purposes of determining whether the Holders of the
requisite amount of Trust Preferred Securities have voted on any matter provided
for in this Trust Agreement, so long as Definitive Trust Preferred Securities
Certificates have not been issued, the Trustees may conclusively rely on, and
shall be fully protected in relying on, any written instrument (including a
proxy) delivered to the Trustees by the Depository setting forth the Trust
Preferred Securities Beneficial Owners' votes or assigning the right to
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vote on any matter to any other Person either in whole or in part.
SECTION 5.12. Definitive Trust Preferred Securities Certificates.
If (i) the Depositor advises the Trustees in writing that the Depository is
no longer willing or able to properly discharge its responsibilities with
respect to the Trust Preferred Securities Certificates or the Depository is no
longer registered or in good standing under the Securities Exchange Act of 1934,
as amended, or other applicable statute or regulation, and the Depositor is
unable to locate a qualified successor within 90 days, (ii) the Depositor at its
option advises the Trustees in writing that it elects to dissolve the book-entry
system through the Depository or (iii) an Event of Default occurs and is
continuing and the Holders of a Majority in Liquidation Preference of Trust
Preferred Securities determine to discontinue the system of book-entry transfers
through the Depository by so notifying the Property Trustee, then the
Administrative Trustees shall issue Definitive Trust Preferred Securities
Certificates. Upon surrender to the Administrative Trustees of the Book-Entry
Trust Preferred Securities Certificates by the Depository, accompanied by
registration instructions, the Administrative Trustees shall execute and deliver
the Definitive Trust Preferred Securities Certificates pursuant to this Trust
Agreement in accordance with the instructions of the Depository. Neither the
Securities Registrar nor the Trustees shall be liable for any delay in delivery
of such instructions and may conclusively rely on, and shall be protected in
relying on, such instructions. The Definitive Trust Preferred Securities
Certificates shall be printed, lithographed or engraved or may be produced in
any other manner as is reasonably acceptable to the Administrative Trustees, as
evidenced by the execution thereof by not less than two Administrative Trustees.
SECTION 5.13. Rights of Securityholders.
The Securityholders shall not have any right or title to the Trust Property
other than the undivided beneficial interest in the assets of the Trust
conferred by their Trust Securities and they shall have no right to call for any
partition or division of property, profits or rights of the Trust except as
described below. The Trust Securities shall be personal property giving only the
rights specifically set forth therein and in this Trust Agreement. The Trust
Securities shall have no preemptive or similar rights and when issued and
delivered to Securityholders against payment of the purchase price therefor will
be fully paid and nonassessable interests in the
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Trust. The Holders of the Trust Securities, in their capacities as such, shall
be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware.
ARTICLE 6. ACTS OF SECURITYHOLDERS; MEETINGS; VOTING
SECTION 6.01. Limitations on Voting Rights.
(a) Except as provided herein, in the Trust Guarantee and in the Indentures
and as otherwise required by law, no Holder of Trust Securities shall have any
right to vote or in any manner otherwise control the administration, operation
and management of the Trust or the obligations of the parties hereto, nor shall
anything herein set forth, or contained in the terms of the Trust Securities
Certificates, be construed so as to constitute the Securityholders from time to
time as partners or members of an association.
(b) So long as any Debentures are held by the Property Trustee, the
Trustees shall not (i) direct the time, method and place of conducting any
proceeding for any remedy available to the Debenture Trustee or executing any
trust or power conferred on the Property Trustee with respect to the Debentures,
(ii) waive any past default which may be waived under Section 6.04 of the
Indentures, (iii) exercise any right to rescind or annul a declaration that the
principal of the Debentures is due and payable or (iv) consent to any amendment,
modification or termination of any of the Indentures, where such consent shall
be required, without, in each case, obtaining the prior consent of the Holders
of at least a Majority in Liquidation Preference of the Outstanding Trust
Preferred Securities; provided, however, that where such consent under the
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applicable Indenture would require the consent of each holder of Debentures
issued thereunder affected thereby, no such consent shall be given by the
Property Trustee without the prior written consent of each Holder of Outstanding
Trust Preferred Securities. The Trustees shall not revoke any action previously
authorized or approved by a vote of the Holders of Trust Preferred Securities,
except by a subsequent vote of the Holders of Trust Preferred Securities. The
Property Trustee shall notify all Holders of the Trust Preferred Securities of
any notice received from the Debenture Trustee as a result of the Trust being
the holder of the Debentures. In addition to obtaining the consent of the
Holders of the Trust Preferred Securities, prior to taking any of the foregoing
actions, the Trustees shall, at the expense of the Depositor, obtain an Opinion
of Counsel experienced in such matters to the effect that the Trust will not be
classified as an association taxable as a corporation or partnership for
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United States federal income tax purposes on account of such action and will
continue to be classified as a grantor trust for United States federal income
tax purposes.
(c) Subject to Section 10.02(c) hereof, if any proposed amendment to the
Trust Agreement provides for, or the Trustees otherwise propose to effect, (i)
any action that would adversely affect in any material respect the powers,
preferences or special rights of the Trust Preferred Securities, whether by way
of amendment to this Trust Agreement or otherwise, or (ii) the dissolution or
liquidation of the Trust, other than pursuant to the terms of this Trust
Agreement, then the Holders of Outstanding Trust Preferred Securities will be
entitled to vote on such amendment or proposal and such amendment or proposal
shall not be effective except with the approval of the Holders of at least a
Majority in Liquidation Preference of the Outstanding Trust Preferred
Securities.
SECTION 6.02. Notice of Meetings.
Notice of all meetings of the Trust Preferred Security Holders, stating the
time, place and purpose of the meeting, shall be given by the Property Trustee
pursuant to Section 10.07 to each Trust Security Holder of record, at his/her
registered address, at least 15 days and not more than 90 days before the
meeting. At any such meeting, any business properly before the meeting may be so
considered whether or not stated in the notice of the meeting. Any adjourned
meeting may be held as adjourned without further notice.
SECTION 6.03. Meetings of Trust Preferred Security Holders.
(a) No annual meeting of Securityholders is required to be held. The
Administrative Trustees, however, shall call a meeting of Securityholders to
vote on any matter upon the written request of the Holders of at least 25% in
Liquidation Preference of the Outstanding Trust Preferred Securities and the
Administrative Trustees or the Property Trustee may, at any time in their
discretion, call a meeting of Trust Preferred Security Holders to vote on any
matters as to which the Trust Preferred Security Holders are entitled to vote.
(b) Holders of at least a Majority in Liquidation Preference of the
Outstanding Trust Preferred Securities, present in person or by proxy, shall
constitute a quorum at any meeting of Securityholders.
(c) If a quorum is present at a meeting, an affirmative vote of the Holders
of at least a Majority in Liquidation Preference of the Outstanding Trust
Preferred Securities
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present, either in person or by proxy, at such meeting shall constitute the
action of the Securityholders, unless this Trust Agreement requires a greater
number of affirmative votes.
SECTION 6.04. Voting Rights.
A Securityholder shall be entitled to one vote for each Trust Security in
respect of any matter as to which such Securityholder is entitled to vote.
SECTION 6.05. Proxies, etc.
At any meeting of Securityholders, any Securityholder entitled to vote
thereat may vote by proxy, provided that no proxy shall be voted at any meeting
unless it shall have been placed on file with the Administrative Trustees, or
with such other officer or agent of the Trust as the Administrative Trustees may
direct, for verification prior to the time at which such vote shall be taken.
Pursuant to a resolution of the Property Trustee, proxies may be solicited in
the name of the Property Trustee or one or more officers of the Property
Trustee. Only Securityholders of record shall be entitled to vote. When Trust
Securities are held jointly by several Persons, any one of them may vote at any
meeting in person or by proxy in respect of such Trust Securities, but if more
than one of them shall be present at such meeting in person or by proxy, and
such joint owners or their proxies so present disagree as to any vote to be
cast, such vote shall not be received in respect of such Trust Securities. A
proxy purporting to be executed by or on behalf of a Securityholder shall be
deemed valid unless challenged at or prior to its exercise, and the burden of
proving invalidity shall rest on the challenger. No proxy shall be valid more
than three years after its date of execution.
SECTION 6.06. Securityholder Action by Written Consent.
Any action which may be taken by Securityholders at a meeting may be taken
without prior notice and a meeting if Holders of the proportion of the
Outstanding Trust Preferred Securities required to approve such action shall
consent to the action in writing. Prompt notice of the taking of any action by
written consent shall be provided to the Holders who did not consent to the
taking of such action.
SECTION 6.07. Record Date for Voting and Other Purposes.
For the purposes of determining the Securityholders who are entitled to
notice of and to vote at any meeting or who are entitled to vote by written
consent, or for the purpose of any other action, the Administrative Trustees may
from time to time fix as a record date for the determination of the identity of
the Securityholders for such purposes, (i) in the case of a meeting, a date not
more than 90 days prior to the date of the meeting of
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Securityholders, or (ii) in the case of a written consent, a date that shall not
precede the date upon which the action fixing the record date is adopted by the
Administrative Trustees and which date shall not be more than 10 days after the
date upon which the action fixing the record date is adopted by the
Administrative Trustees.
SECTION 6.08. Acts of Securityholders.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided or permitted by this Trust Agreement to be given, made
or taken by Securityholders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Securityholders in
person or by an agent duly appointed in writing; and, except as otherwise
expressly provided herein, such action shall become effective when such
instrument or instruments are delivered to the Administrative Trustees. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Securityholders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Trust Agreement and (subject to Section 7.02) conclusive, if
made in the manner provided in this Section 6.08.
(b) The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him/her the execution thereof. Where such execution
is by a signer acting in a capacity other than his/her individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his/her
authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which any Trustee receiving the same deems sufficient.
(c) The ownership of Trust Preferred Securities shall be proved by the
Securities Register.
(d) Any request, demand, authorization, direction, notice, consent, waiver
or other act of the Securityholder of any Trust Security shall bind every future
Securityholder of the same Trust Security and the Securityholder of every Trust
Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or suffered to
be done by the Trustees or the Trust in reliance thereon, whether or not
notation of such action is made upon such Trust Security.
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(e) Without limiting the foregoing, a Securityholder entitled hereunder to
take any action hereunder with regard to any particular Trust Security may do so
with regard to all or any part of the Liquidation Preference of such Trust
Security or by one or more duly appointed agents, each of which may do so
pursuant to such appointment with regard to all or any part of such Liquidation
Preference.
(f) If any dispute shall arise between the Securityholders and the
Administrative Trustees or among such Securityholders or Trustees with respect
to the authenticity, validity or binding nature of any request, demand,
authorization, direction, consent, waiver or other Act of such Securityholder or
Trustee under this Article 6, then the determination of such matter by the
Property Trustee shall be conclusive with respect to such matter.
SECTION 6.09. Inspection of Records.
Upon reasonable notice to the Administrative Trustees and the Property
Trustee, the records of the Trust shall be open to inspection by Securityholders
during normal business hours for any purpose reasonably related to such
Securityholder's interest as a Securityholder.
ARTICLE 7. THE TRUSTEES
SECTION 7.01. Certain Duties and Responsibilities.
(a) The duties and responsibilities of the Trustees shall be as provided by
this Trust Agreement and, in the case of the Property Trustee, also by the Trust
Indenture Act. The Property Trustee, other than during the occurrence and
continuance of an Event of Default, undertakes to perform only such duties as
are specifically set forth in this Trust Agreement and, upon an Event of
Default, must exercise the same degree of care and skill as a prudent person
would exercise or use in the conduct of his/her own affairs. The Trustees shall
have all the privileges, rights and immunities provided by the Delaware Business
Trust Act. Notwithstanding the foregoing, no provision of this Trust Agreement
shall require the Trustees to expend or risk their own funds or otherwise incur
any financial liability in the performance of any of their duties hereunder, or
in the exercise of any of their rights or powers, if they shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it. Whether or not therein
expressly so provided, every provision of this Trust Agreement relating to the
conduct or affecting the liability of or affording protection to the Trustees
shall be subject to the
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provisions of this Section 7.01. No Indemnified Person shall be liable,
responsible or accountable in damages or otherwise to the Trust or any employee
or agent of the Trust or its Affiliates for any loss, damage or claim incurred
by reason of any act or omission performed or omitted by such Indemnified Person
in good faith on behalf of the Trust and in a manner such Indemnified Person
reasonably believed to be within the scope of the authority conferred on such
Indemnified Person by this Trust Agreement or by law, except that an Indemnified
Person shall be liable for any such loss, damage or claim incurred by reason of
such Indemnified Person's gross negligence (but, in the case of the Property
Trustee, nothing in this Trust Agreement shall be construed to release the
Property Trustee from liability for its own negligent action or its own
negligent failure to act) or willful misconduct with respect to such acts or
omissions. To the extent that, at law or in equity, the Administrative Trustees
have duties (including fiduciary duties) and liabilities relating thereto to the
Trust or to the Securityholders, the Administrative Trustees shall not be liable
to the Trust or to any Securityholder for the Administrative Trustees's good
faith reliance on the provisions of this Trust Agreement. The provisions of this
Trust Agreement, to the extent that they restrict the duties and liabilities of
the Administrative Trustees otherwise existing at law or in equity, are agreed
by the Depositor and the Securityholders to replace such other duties and
liabilities of the Administrative Trustees.
(b) All payments made by the Property Trustee or any other Paying Agent in
respect of the Trust Securities shall be made only from the income and proceeds
from the Trust Property. Each Securityholder, by its acceptance of a Trust
Security, agrees that (i) it will look solely to the income and proceeds from
the Trust Property to the extent available for distribution to it as herein
provided and (ii) the Trustees are not personally liable to it for any amount
distributable in respect of any Trust Security or for any other liability in
respect of any Trust Security. This Section 7.01(b) does not limit the
liability of the Trustees expressly set forth elsewhere in this Trust Agreement
or, in the case of the Property Trustee, in the Trust Indenture Act.
SECTION 7.02. Notice of Defaults; Direct Action by Securityholders.
Within 90 days after the occurrence of any Event of Default actually known
to the Property Trustee, the Property Trustee shall transmit, in the manner and
to the extent provided in Section 10.07, notice of such Event of Default to the
Securityholders, the Administrative Trustees and the Depositor, unless such
Event of Default shall have been cured
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or waived. If the Property Trustee has failed to enforce its rights under this
Trust Agreement or the Indentures, any Securityholder may to the fullest extent
permitted by law and subject to the terms of this Trust Agreement and the
Indentures institute a legal proceeding directly against any Person to enforce
the Property Trustee's rights under this Trust Agreement or the applicable
Indenture with respect to Debentures having a principal amount equal to the
aggregate Liquidation Preference of the Trust Preferred Securities of such
Securityholder without first instituting a legal proceeding against the Property
Trustee or any other Person. To the extent that any action under the applicable
Indenture is entitled to be taken by the holders of at least a specified
percentage of the principal amount of the outstanding Debentures, Holders of at
least the same percentage of the Liquidation Preference of the Outstanding Trust
Preferred Securities may, to the fullest extent permitted by law, also take
such action in the name of the Trust if such action has not been taken by the
Property Trustee. Notwithstanding the foregoing, if a Debenture Event of Default
(i) relating to the Depositor's failure to pay the principal of or interest on
the HECO Debentures has occurred and is continuing thereby resulting in an Event
of Default hereunder, then each Holder of Trust Preferred Securities may
institute a legal proceeding directly against the Depositor for enforcement of
payment to such Holder of interest on or principal of the HECO Debentures equal
to the aggregate Liquidation Preference of the Trust Preferred Securities of
such Holder, as provided in Section 6.07 of the HECO Junior Indenture and (ii)
relating to the failure by MECO or HELCO, as the case may be, to pay the
principal of or interest on the MECO Debentures or HELCO Debentures, as the case
may be (and the related failure of HECO to perform its obligations as guarantor
under the MECO Indenture or the HELCO Indenture, as the case may be), has
occurred and is continuing thereby resulting in an Event of Default hereunder,
then each Holder of the Trust Preferred Securities may institute a legal
proceeding directly against MECO or HELCO, as the case may be, and against HECO
as guarantor, for enforcement of payment to such Holder of the interest on or
principal of the MECO Debentures or the HELCO Debentures, as the case may be,
equal to the aggregate Liquidation Preference of the Trust Preferred Securities
of such Holder, as provided in Section 6.07 and Article 11 of each of the MECO
Indenture or the HELCO Indenture, as the case may be.
SECTION 7.03. Certain Rights of Property Trustee.
Subject to the provisions of Section 7.01:
(a) the Property Trustee may rely and shall be protected in acting or
refraining from acting in good faith upon any
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resolution, Opinion of Counsel, certificate, written representation of a Holder
or transferee, certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order, appraisal, bond,
debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(b) if, other than during the occurrence and continuance of an Event of
Default, (i) in performing its duties under this Trust Agreement, the Property
Trustee is required to decide between alternative courses of action or (ii) in
construing any of the provisions in this Trust Agreement, the Property Trustee
finds the same ambiguous or inconsistent with any other provisions contained
herein or (iii) the Property Trustee is unsure of the application of any
provision of this Trust Agreement, then, except as to any matter as to which the
Trust Preferred Security Holders are entitled to vote under the terms of this
Trust Agreement, the Property Trustee shall deliver a notice to the Depositor
requesting written instructions of the Depositor as to the course of action to
be taken. The Property Trustee shall take such action, or refrain from taking
such action, as the Property Trustee shall be instructed in writing to take, or
to refrain from taking, by the Depositor; provided, however, that if the
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Property Trustee does not receive such instructions of the Depositor within ten
Business Days after it has delivered such notice, or such reasonably shorter
period of time set forth in such notice (which to the extent practicable shall
not be less than five Business Days), it may, but shall be under no duty to,
take or refrain from taking such action not inconsistent with this Trust
Agreement as it shall deem advisable and in the best interests of the
Securityholders, in which event the Property Trustee shall have no liability
except for its own negligent action, its own negligent failure to act or its own
willful misconduct;
(c) the Property Trustee may consult with counsel or other experts of its
selection and the advice or opinion of such counsel or other experts with
respect to legal matters or advice within the scope of such experts' area of
expertise shall be full and complete authorization and protection in respect of
any action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon;
(d) the Property Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Trust Agreement at the request or
direction of any of the Securityholders pursuant to this Trust Agreement, unless
such Securityholders shall have offered to the Property Trustee reasonable
security or indemnity against the costs, expenses
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and liabilities which might be incurred by it in compliance with such request or
direction;
(e) the Property Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
approval, bond, debenture, note or other evidence of indebtedness or other paper
or document, but the Property Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit; and
(f) the Property Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through its agents or
attorneys and the Property Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed with due care by it
hereunder.
SECTION 7.04. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Trust Securities Certificates
shall be taken as the statements of the Trust, and the Trustees do not assume
any responsibility for their correctness. The Trustees shall not be accountable
for the use or application by the Company or the Subsidiaries of the proceeds of
the Debentures.
SECTION 7.05. May Hold Securities.
Any Trustee or any other agent of any Trustee or the Trust, in its
individual or any other capacity, may become the owner or pledgee of Trust
Securities and, subject to Sections 7.08 and 7.13 and, except as provided in the
definition of the term "Outstanding" in Article 1, may otherwise deal with the
Trust with the same rights it would have if it were not a Trustee or such other
agent.
SECTION 7.06. Compensation; Indemnity; Fees.
The Depositor agrees:
(a) to pay to the Trustees from time to time such compensation as shall
have been agreed in writing with the Depositor for all services rendered by them
hereunder (which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, to reimburse the
Trustees upon request for all reasonable
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expenses, disbursements and advances incurred or made by the Trustees in
accordance with any provision of this Trust Agreement (including the reasonable
compensation and the expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be attributable to its
own grossly negligent action, its own grossly negligent failure to act or its
own willful misconduct (or, in the case of the Property Trustee, any such
expense, disbursement or advance as may be attributable to its own negligent
action, its own negligent failure to act or its own willful misconduct); and
(c) to the fullest extent permitted by applicable law, to indemnify and
hold harmless each Indemnified Person from and against any loss, damage or claim
incurred by such Indemnified Person by reason of any act or omission performed
or omitted by such Indemnified Person in good faith on behalf of the Trust and
in a manner such Indemnified Person reasonably believed to be within the scope
of authority conferred on such Indemnified Person by the Trust Agreement, except
that no Indemnified Person shall be entitled to be indemnified in respect of any
loss, damage or claim incurred by such Indemnified Person by reason of gross
negligence (or, in the case of the Property Trustee, negligence) or willful
misconduct with respect to such acts or omissions. To the fullest extent
permitted by applicable law, the Trust shall advance, from time to time,
expenses (including legal fees) incurred by an Indemnified Person in defending
any claim, demand, action, suit or proceeding prior to the final disposition of
such claim, demand, action, suit or proceeding upon receipt by the Trust of an
undertaking by or on behalf of the Indemnified Person to repay such amount if it
shall be determined that the Indemnified Person is not entitled to be
indemnified for the underlying cause of action as authorized by this Trust
Agreement. No Trustee may claim any Lien or charge on any Trust Property as a
result of any amount due pursuant to this Section 7.06. The provisions of this
Section 7.06 shall survive the termination of this Trust Agreement.
(d) When the Property Trustee incurs expenses or renders services in
connection with a Debenture Event of Default relating to certain bankruptcy
events, the expenses (including the reasonable charges and expenses of its
counsel) and the compensation for the services are intended to constitute
expenses of administration under any applicable federal or state bankruptcy,
insolvency or other similar law.
SECTION 7.07. Certain Trustees Required; Eligibility of Trustees.
(a) There shall at all times be a Property Trustee hereunder. The Property
Trustee shall be a Person that is
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eligible pursuant to the Trust Indenture Act to act as such and has a combined
capital and surplus of at least $50,000,000. If any such Person publishes
reports of condition at least annually, pursuant to law or to the requirements
of its supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Person shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Property Trustee with respect to the
Trust Securities shall cease to be eligible in accordance with the provisions of
this Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
(b) There shall at all times be two or more Administrative Trustees
hereunder. Each Administrative Trustee shall be either a natural person who is
at least 21 years of age or a legal entity that shall act through one or more
persons authorized to bind that entity.
(c) There shall at all times be a Delaware Trustee. The Delaware Trustee
shall either be (i) a natural person who is at least 21 years of age and a
resident of the State of Delaware or (ii) a legal entity with its principal
place of business in the State of Delaware and that otherwise meets the
requirements of applicable Delaware law that shall act through one or more
persons authorized to bind such entity.
SECTION 7.08. Conflicting Interests.
If the Property Trustee has or shall acquire a conflicting interest within
the meaning of the Trust Indenture Act, the Property Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and this Trust
Agreement.
SECTION 7.09. Co-Trustees and Separate Trustee.
(a) Unless an Event of Default shall have occurred and be continuing, at
any time or times, for the purpose of meeting the legal requirements of the
Trust Indenture Act or of any jurisdiction in which any part of the Trust
Property may at the time be located, the Depositor and the Administrative
Trustees shall have the power (i) to appoint, and upon the written request of
the Administrative Trustees the Depositor shall for such purpose join with the
Administrative Trustees in the execution, delivery, and performance of all
instruments and agreements necessary or proper to appoint, one or more Persons
approved by the Property Trustee either to act as co-trustee, jointly with the
Property Trustee, of all or any part of such Trust
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Property, or to the extent required by law to act as separate trustee of any
such Trust Property, in either case with such powers as may be provided in the
instrument of appointment, and (ii) to vest in such Person or Persons in the
capacity aforesaid, any property, title, right or power deemed necessary or
desirable, subject to the other provisions of this Section 7.09(a). If the
Depositor does not join in such appointment within 15 days after the receipt by
it of a request so to do, or in case a Debenture Event of Default has occurred
and is continuing, the Property Trustee alone shall have power to make such
appointment. Any co-trustee or separate trustee appointed pursuant to this
Section shall either be (i) a natural person who is at least 21 years of age and
a resident of the United States or (ii) a legal entity with its principal place
of business in the United States that shall act through one or more persons
authorized to bind such entity.
(b) Should any written instrument from the Depositor be required by any
co-trustee or separate trustee so appointed for more fully confirming to such
co-trustee or separate trustee such property, title, right, or power, any and
all such instruments shall, on request, be executed, acknowledged, and delivered
by the Depositor.
(c) Every co-trustee or separate trustee shall, to the extent permitted by
law, but to such extent only, be appointed subject to each of the following
terms:
(1) The Trust Securities shall be executed and delivered and all
rights, powers, duties, and obligations hereunder in respect of the custody
of securities, cash and other personal property held by, or required to be
deposited or pledged with, the Trustees specified hereunder, shall be
exercised solely by such Trustees and not by such co-trustee or separate
trustee.
(2) The rights, powers, duties, and obligations hereby conferred or
imposed upon the Property Trustee in respect of any property covered by
such appointment shall be conferred or imposed upon and exercised or
performed by the Property Trustee or by the Property Trustee and such co-
trustee or separate trustee jointly, as shall be provided in the instrument
appointing such co-trustee or separate trustee, except to the extent that
under any law of any jurisdiction in which any particular act is to be
performed, the Property Trustee shall be incompetent or unqualified to
perform such act, in which event such rights, powers, duties and
obligations shall be exercised and performed by such co-trustee or separate
trustee.
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(3) The Property Trustee at any time, by an instrument in writing
executed by it, with the written concurrence of the Depositor, may accept
the resignation of or remove any co-trustee or separate trustee appointed
under this Section 7.09, and, in case a Debenture Event of Default has
occurred and is continuing, the Property Trustee shall have power to accept
the resignation of, or remove, any such co-trustee or separate trustee
without the concurrence of the Depositor. Upon the written request of the
Property Trustee, the Depositor shall join with the Property Trustee in the
execution, delivery, and performance of all instruments and agreements
necessary or proper to effectuate such resignation or removal. A successor
to any co-trustee or separate trustee so resigned or removed may be
appointed in the manner provided in this Section 7.09.
(4) No co-trustee or separate trustee hereunder shall be personally
liable by reason of any act or omission of the Property Trustee, or any
other trustee hereunder.
(5) The Property Trustee shall not be liable by reason of any act of a
co-trustee or separate trustee.
(6) Any Act of Holders delivered to the Property Trustee shall be
deemed to have been delivered to each such co-trustee and separate trustee.
SECTION 7.10. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of any Trustee and no appointment of a
successor Trustee pursuant to this Article 7 shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 7.11.
(b) Subject to the immediately preceding paragraph, any Trustee may resign
at any time with respect to the Trust Securities by giving written notice
thereof to the Securityholders.
(c) Unless an Event of Default shall have occurred and be continuing, any
Trustee may be removed at any time by Act of the Holder of the Trust Common
Securities. If an Event of Default shall have occurred and be continuing, the
Property Trustee or the Delaware Trustee, or both of them, may be removed at
such time only by Act of the Holders of at least a Majority in Liquidation
Preference of the Outstanding Trust Preferred Securities, delivered to such
Trustee (in its
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individual capacity and on behalf of the Trust). The Administrative Trustees may
only be removed by the Holder of Trust Common Securities at any time.
(d) If the instrument of acceptance by the successor Trustee required by
Section 7.11 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation or removal, the Trustee may petition,
at the expense of the Depositor, any court of competent jurisdiction for the
appointment of a successor Trustee.
(e) If any Trustee shall resign, be removed or become incapable of acting
as Trustee, or if a vacancy shall occur in the office of any Trustee for any
cause, at a time when no Event of Default shall have occurred and be continuing,
the Holder of Trust Common Securities, by Act of the Holder of Trust Common
Securities delivered to the retiring Trustee, shall promptly appoint a successor
Trustee or Trustees and the Trust and the retiring Trustee shall comply with the
applicable requirements of Section 7.11. If the Property Trustee or the
Delaware Trustee shall resign, be removed or become incapable of continuing to
act as the Property Trustee or the Delaware Trustee, as the case may be, at a
time when an Event of Default has occurred and is continuing, the Holders of
Trust Preferred Securities, by Act of the Securityholders of at least a Majority
in Liquidation Preference of the Outstanding Trust Preferred Securities
delivered to the retiring Trustee, shall promptly appoint a successor Trustee or
Trustees, and such successor Trustee shall comply with the applicable
requirements of Section 7.11. If any Administrative Trustee shall resign, be
removed or become incapable of acting as an Administrative Trustee at a time
when an Event of Default shall have occurred and be continuing, the Holder of
Trust Common Securities shall appoint a successor Administrative Trustee. If no
successor Trustee shall have been so appointed by the Holder of Trust Common
Securities or the Holders of Trust Preferred Securities and accepted appointment
in the manner required by Section 7.11, any Securityholder who has been a
Securityholder of Trust Securities for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(f) The Property Trustee shall give notice of each resignation and each
removal of a Trustee and each appointment of a successor Trustee to all
Securityholders in the manner provided in Section 10.07 and shall give notice to
the Depositor. Each notice shall include the name of the successor Trustee and
the address of its Corporate Trust Office if it is the Property Trustee.
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(g) Notwithstanding the foregoing or any other provision of this Trust
Agreement, in the event any Administrative Trustee or Delaware Trustee who is a
natural person dies or becomes, in the opinion of the Depositor, incompetent or
incapacitated, the vacancy created by such death, incompetence or incapacity may
be filled by (i) the unanimous act of the remaining Administrative Trustees if
there are at least two of them or (ii) otherwise by the Depositor (with the
successor in each case being a Person who satisfies the eligibility requirements
for an Administrative Trustee or for the Delaware Trustee, as the case may be,
set forth in Section 7.07).
SECTION 7.11. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee, the
retiring Trustee and each successor Trustee shall execute and deliver to the
Trust and the retiring Trustee an amendment hereto wherein each successor
Trustee shall accept such appointment and which (i) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and to
vest in, each successor Trustee all the rights, powers, trusts and duties of the
retiring Trustee and (ii) shall add to or change any of the provisions of this
Trust Agreement as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such amendment shall constitute such
Trustees as co-trustees of the same trust and that each such Trustee shall be
trustee of a trust or trusts hereunder separate and apart from any trust or
trusts hereunder administered by any other such Trustee and upon the execution
and delivery of such amendment the resignation or removal of the retiring
Trustee shall become effective to the extent provided therein and each such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee
and the Trust; but, on request of the Trust or any successor Trustee, such
retiring Trustee shall, upon payment of its charges, duly assign, transfer and
deliver to such successor Trustee all Trust Property, all proceeds thereof and
money held by such retiring Trustee hereunder.
(b) Upon request of any such successor Trustee, the Trust shall execute any
and all instruments for more fully and certainly vesting in and confirming to
such successor Trustee all such rights, powers and trusts referred to in the
first or second preceding paragraph, as the case may be.
(c) No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
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SECTION 7.12. Merger, Conversion, Consolidation or Succession to Business.
Any Person into which any of the Trustees that is not a natural person may
be merged or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which such Trustee
shall be a party, or any Person succeeding to all or substantially all the
corporate trust business of such Trustee, shall be the successor of such Trustee
hereunder, provided such Person shall be otherwise qualified and eligible under
this Article 7, without the execution or filing of any paper or any further act
on the part of any of the parties hereto.
SECTION 7.13. Preferential Collection of Claims Against Depositor or Trust.
If and when the Property Trustee or the Delaware Trustee shall be or become
a creditor (whether directly or indirectly, secured or unsecured) of the
Depositor or the Trust (or any other obligor upon the Debentures or the Trust
Securities), including under the terms of Section 7.05 hereof, the Property
Trustee or the Delaware Trustee, as the case may be, shall be subject to and
shall take all actions necessary in order to comply with the provisions of the
Trust Indenture Act regarding the collection of claims against the Depositor or
Trust (or any such other obligor).
SECTION 7.14. Reports by Property Trustee.
(a) The Property Trustee shall transmit to Holders such reports concerning
the Property Trustee and its actions under this Trust Agreement as may be
required pursuant to the Trust Indenture Act at the times and in the manner
provided pursuant thereto. If required by Section 313(a) of the Trust Indenture
Act, the Property Trustee shall, within 60 days after each May 31 following the
date of this Trust Agreement deliver to Holders a brief report, dated as of such
May 31, which complies with the provisions of such Section 313(a).
(b) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Property Trustee with each stock exchange upon which
any Trust Preferred Securities are then listed, with the Commission and with the
Trust. The Trust will promptly notify the Property Trustee when any Trust
Preferred Securities are listed on any stock exchange.
SECTION 7.15. Reports to the Property Trustee.
The Depositor and the Administrative Trustees on behalf of the Trust shall
provide to the Property Trustee such documents,
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reports and information as required by Section 314 of the Trust Indenture Act
(if any) and the compliance certificate required by Section 314(a) of the Trust
Indenture Act in the form, in the manner and at the times required by Section
314 of the Trust Indenture Act. Delivery of such reports, information and
documents to the Property Trustee is for informational purposes only and the
Property Trustee's receipt of such shall not constitute constructive notice of
any information contained therein, including the Depositor's or the Trust's
compliance with any of its covenants hereunder (as to which the Property Trustee
is entitled to rely exclusively on Officer's Certificates).
SECTION 7.16. Evidence of Compliance with Conditions Precedent.
The Depositor and the Administrative Trustees on behalf of the Trust shall
provide to the Property Trustee evidence of compliance with the conditions
precedent, if any, provided for in this Trust Agreement that relate to any of
the matters set forth in Section 314(c) of the Trust Indenture Act.
SECTION 7.17. Statements Required in Officer's Certificate and Opinion of
Counsel.
Each Officer's Certificate and Opinion of Counsel with respect to
compliance with a covenant or condition provided for in this Trust Agreement
shall include:
(a) a statement that each Person making such Officer's Certificate
or Opinion of Counsel has read such covenant or condition;
(b) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
Officer's Certificate or Opinion of Counsel are based;
(c) a statement that, in the opinion of each such Person, such
Person has made such examination or investigation as is necessary to enable
such Person to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement that, in the opinion of such Person, such covenant
or condition has been complied with; provided, however, that with respect
to matters of fact not involving any legal conclusion, an Opinion of
Counsel may rely on an Officer's Certificate or certificates of public
officials.
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SECTION 7.18. Number of Administrative Trustees.
(a) The initial number of Administrative Trustees shall be three, provided
that the Holder of all of the Trust Common Securities by written instrument may,
subject to the requirements of Section 7.07(b), increase and/or decrease the
number of Administrative Trustees.
(b) If an Administrative Trustee ceases to hold office for any reason and
the number of Administrative Trustees is not reduced pursuant to Section
7.18(a), or if the number of Administrative Trustees is increased pursuant to
Section 7.18(a), a vacancy shall occur. The vacancy shall be filled with an
Administrative Trustee appointed in accordance with Section 7.10.
(c) The death, resignation, retirement, removal, bankruptcy, incompetence
or incapacity to perform the duties of an Administrative Trustee shall not
operate to annul, dissolve or terminate the Trust. Whenever a vacancy shall
occur, until such vacancy is filled by the appointment of an Administrative
Trustee in accordance with Section 7.10, the Administrative Trustee in office,
regardless of their number (and notwithstanding any other provision of this
Trust Agreement), shall have all the powers granted to the Administrative
Trustees and shall discharge all the duties imposed upon the Administrative
Trustees by this Trust Agreement.
SECTION 7.19. Delegation of Power.
(a) Any Administrative Trustee may, by power of attorney consistent with
applicable law, delegate to any natural person over the age of 21 his/her power
for the purpose of executing any documents contemplated in Section 2.07(a),
including any registration statement or amendment thereto filed with the
Commission, or making any other governmental filing.
(b) The Administrative Trustees shall have power to delegate from time to
time to such of their number, if there is more than one Administrative Trustee,
or to the Depositor the doing of such things and the execution of such
instruments either in the name of the Trust or the names of the Administrative
Trustees or otherwise as the Administrative Trustees may deem expedient, to the
extent such delegation is not prohibited by applicable law or contrary to the
provisions of the Trust, as set forth herein.
SECTION 7.20. Voting.
Except as otherwise provided in this Trust Agreement, the consent or vote
of the Administrative Trustees shall be approved by not less than a majority of
the Administrative Trustees.
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ARTICLE 8. DISSOLUTION AND LIQUIDATION
SECTION 8.01. Dissolution Upon Expiration Date.
Unless earlier dissolved, the Trust shall automatically dissolve on
December 31, 2050 (the "Expiration Date"), following the distribution of the
Trust Property in accordance with Section 8.04.
SECTION 8.02. Early Dissolution.
The earliest to occur of any of the following events is an "Early
Dissolution Event":
(a) the occurrence of a Bankruptcy Event in respect of, or the
dissolution or liquidation of, the Depositor;
(b) upon the occurrence and during the continuation of a Special
Event, the delivery or written direction to the Property Trustee by the
Depositor (which direction is wholly optional and within the discretion of
the Depositor) to dissolve the Trust and cause the distribution of a Like
Amount of Distributable Debentures to the Securityholders in exchange for
the Trust Preferred Securities in accordance with Section 8.04;
(c) the redemption of all of the Trust Securities; and
(d) an order for dissolution or liquidation of the Trust shall have
been entered by a court of competent jurisdiction.
SECTION 8.03. Termination of Obligations.
The respective obligations and responsibilities of the Trustees and the
Trust created and continued hereby shall terminate upon the latest to occur of
the following: (i) the distribution by the Property Trustee to Securityholders
upon the liquidation of the Trust pursuant to Section 8.04, or upon the
redemption of all of the Trust Securities pursuant to Section 4.02, of all
amounts required to be distributed hereunder upon the final payment of the Trust
Securities; (ii) the payment of any expenses owed by the Trust; and (iii) the
discharge of all administrative duties of the Administrative Trustees, including
the performance of any tax reporting obligations with respect to the Trust or
the Securityholders.
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SECTION 8.04. Dissolution and Liquidation.
(a) If an Early Dissolution Event specified in clause (a), (b) or (d) of
Section 8.02 occurs or upon the Expiration Date, the Trust shall be liquidated
by the Administrative Trustees and the Property Trustee as expeditiously as
they determine to be possible by distributing, after satisfaction of liabilities
to creditors of the Trust as provided by applicable law, to each Securityholder
a Like Amount of Distributable Debentures, subject to Sections 2.05(b) and
8.04(d). Notice of liquidation shall be given by the Property Trustee by first-
class mail, postage prepaid, mailed not later than 30 nor more than 60 days
prior to the Liquidation Date to each Holder of Trust Securities at such
Holder's address appearing in the Securities Register. All notices of
liquidation shall:
(1) state the Liquidation Date;
(2) state that from and after the Liquidation Date, the Trust
Securities will no longer be deemed to be Outstanding and any Trust
Securities Certificates not surrendered for exchange will be deemed to
represent the right to receive a Like Amount of Distributable Debentures,
as the case may be; and
(3) provide such information with respect to the mechanics by which
Holders may exchange Trust Securities Certificates for certificates
evidencing Distributable Debentures, or, if Section 8.04(d) applies,
receive a Liquidation Distribution, as the Administrative Trustees or the
Property Trustee shall deem appropriate.
(b) In order to effect the liquidation of the Trust and distribution of the
Distributable Debentures to Securityholders, the Property Trustee shall
establish a record date for such distribution (which shall be one Business Day
prior to the Liquidation Date; provided, however, that in the event that the
Trust Preferred Securities are not in book-entry-only form, such record date
shall be the date that is 15 days prior to the Liquidation Date) and either
itself acting as exchange agent or through the appointment of a separate
exchange agent, shall establish such procedures as it shall deem appropriate to
effect the distribution of such Debentures in exchange for the Outstanding Trust
Securities Certificates.
(c) Except where Section 8.02(c) or 8.02(d) applies, on or after the
Liquidation Date (i) the Trust Securities will no longer be deemed to be
Outstanding, (ii) certificates representing a Like Amount of the Distributable
Debentures will be issued to Holders of Trust Securities Certificates, upon
surrender of such certificates to the Administrative Trustees or their agent for
exchange, (iii) the Depositor shall use its
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best efforts to have the Distributable Debentures listed on the New York Stock
Exchange or such other exchange as the Trust Preferred Securities are then
listed and shall take any reasonable action necessary to effect the distribution
of such Distributable Debentures, (iv) any Trust Securities Certificates not so
surrendered for exchange will be deemed to represent a Like Amount of
Distributable Debentures, accruing interest at the rate provided for in the
Distributable Debentures from the last Distribution Date on which a Distribution
was made on such Trust Certificates until such certificates are so surrendered
(and until such certificates are so surrendered, no payments or interest or
principal will be made to Holders of Trust Securities Certificates with respect
to such Distributable Debentures) and (v) all rights of Securityholders holding
Trust Securities will cease, except the right of such Securityholders to receive
Distributable Debentures upon surrender of Trust Securities Certificates.
(d) In the event that, notwithstanding the other provisions of this Section
8.04, whether because of the occurrence of a Bankruptcy Event in respect of the
Depositor, an order for termination entered by a court of competent jurisdiction
or otherwise, distribution of the Distributable Debentures in the manner
provided herein is determined by the Property Trustee not to be practicable, the
Trust Property shall be liquidated, and the Trust shall be terminated, by the
Property Trustee in such manner as the Property Trustee determines. In such
event, on the date of the dissolution of the Trust, Securityholders will be
entitled to receive out of the assets of the Trust available for distribution to
Securityholders, after satisfaction of liabilities to creditors of the Trust as
provided by applicable law, an amount equal to $25 per Trust Security plus
accumulated and unpaid Distributions thereon to the date of payment (such amount
being the "Liquidation Distribution"). If, upon any such termination, the
Liquidation Distribution can be paid only in part because the Trust has
insufficient assets available to pay in full the aggregate Liquidation
Distribution, then, subject to the next succeeding sentence, the amounts payable
by the Trust on the Trust Securities shall be paid on a pro rata basis (based
upon Liquidation Preferences). The Holder of the Trust Common Securities will be
entitled to receive Liquidation Distributions upon any such termination pro rata
(determined as aforesaid) with Holders of Trust Preferred Securities, except
that, if a Debenture Event of Default has occurred and is continuing, the Trust
Preferred Securities shall have a priority over the Trust Common Securities, and
no Liquidation Distribution will be paid to the Holders of the Trust Common
Securities unless and until receipt by all Holders of the Trust Preferred
Securities of the entire Liquidation Distribution payable in respect thereof.
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ARTICLE 9. MERGERS, ETC.
SECTION 9.01. Mergers, Consolidations, Conversions, Amalgamations or
Replacements of the Trust.
The Trust may not merge with or into, consolidate, convert, amalgamate, or
be replaced by, or convey, transfer or lease its properties and assets as an
entirety or substantially as an entirety to any Person, except as described
below or as described in this Article 9. The Trust may, at the request of the
Depositor, with the consent of the Administrative Trustees and without the
consent of the Holders of the Trust Preferred Securities, merge with or into,
consolidate, convert, amalgamate, be replaced by or convey, transfer or lease
its properties and assets as an entirety or substantially as an entirety to a
trust organized as such under the laws of any state; provided, that (i) such
successor entity either (a) expressly assumes all of the obligations of the
Trust with respect to the Trust Preferred Securities or (b) substitutes for the
Trust Preferred Securities other securities having substantially the same terms
as the Trust Preferred Securities (the "Successor Securities") so long as the
Successor Securities rank the same as the Trust Preferred Securities rank with
respect to the payment of Distributions and payments upon liquidation,
redemption and otherwise, (ii) the Depositor expressly appoints a trustee of
such successor entity possessing the same powers and duties as the Property
Trustee as the holder of the Debentures, (iii) the Successor Securities are
listed, or any Successor Securities will be listed upon notification of
issuance, on any national securities exchange or other organization on which the
Trust Preferred Securities are then listed, if any, (iv) such merger,
consolidation, conversion, amalgamation, replacement, conveyance, transfer or
lease does not cause the Trust Preferred Securities (including any Successor
Securities) to be downgraded by any nationally recognized statistical rating
organization, (v) such merger, consolidation, conversion, amalgamation,
replacement, conveyance, transfer or lease does not adversely affect the rights,
preferences and privileges of the Holders of the Trust Preferred Securities
(including any Successor Securities) in any material respect, (vi) such
successor entity has a purpose substantially similar to that of the Trust, (vii)
prior to such merger, consolidation, conversion, amalgamation, replacement,
conveyance, transfer or lease, the Depositor has received an Opinion of Counsel
to the effect that (a) such merger, consolidation, conversion, amalgamation,
replacement, conveyance, transfer or lease does not adversely affect the rights,
preferences and privileges of the Holders of the Trust Preferred Securities
(including any Successor Securities) in any material respect, and (b) following
such merger, consolidation, conversion, amalgamation, replacement, conveyance
transfer or lease, neither the Trust nor such successor entity will be required
to register as an investment
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company under the 1940 Act and (viii) the Depositor or any permitted successor
or assignee owns all of the common securities of such successor entity and
guarantees the obligations of such successor entity under the Successor
Securities at least to the extent provided by the Trust Guarantee and this Trust
Agreement. Notwithstanding the foregoing, the Trust shall not, except with the
consent of all Holders of the Trust Preferred Securities, merge with or into,
consolidate, convert, amalgamate, be replaced by or convey, transfer or lease
its properties and assets as an entirety or substantially as an entirety to, any
other entity or permit any other entity to consolidate, amalgamate, merge with
or into, or replace it if such consolidation, conversion, amalgamation, merger,
replacement, conveyance, transfer or lease would cause the Trust or the
successor entity to be classified as other than a grantor trust for United
States federal income tax purposes.
ARTICLE 10. MISCELLANEOUS PROVISIONS
SECTION 10.01. Limitation of Rights of Securityholders.
The death, incapacity, dissolution, termination, liquidation or bankruptcy
of any Person having an interest, beneficial or otherwise, in Trust Securities
shall not operate to annul, dissolve or terminate the Trust or this Trust
Agreement, nor entitle the legal representatives or heirs of such Person or any
Securityholder for such Person, to claim an accounting, take any action or bring
any proceeding in any court for a partition or winding-up of the arrangements
contemplated hereby, nor otherwise affect the rights, obligations and
liabilities of the parties hereto or any of them.
SECTION 10.02. Amendment.
(a) This Trust Agreement may be amended from time to time by the
Administrative Trustees and the Depositor, without the consent of any
Securityholders, (i) to cure any ambiguity, to correct or supplement any
provisions in this Trust Agreement that may be inconsistent with any other
provision, or to include any other provisions with respect to matters or
questions arising under this Trust Agreement that shall not be inconsistent with
the other provisions of this Trust Agreement, or (ii) to modify, eliminate or
add to any provisions of this Trust Agreement to such extent as shall be
necessary to ensure that the Trust will be classified for United States federal
income tax purposes as a grantor trust at all times that any Trust Preferred
Securities and Trust Common Securities are Outstanding, to ensure that the
Debentures will be treated as indebtedness of the Companies or to ensure that
the Trust will not be required to register as an investment company under the
1940 Act; provided, however, that in the case of clause (i) above, such action
shall not
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adversely affect in any respect the interests of any Holder of Trust Preferred
Securities or Trust Common Securities. Any amendments of this Trust Agreement
pursuant to this Section 10.02(a) shall become effective when notice thereof is
given to the Securityholders.
(b) Except as provided in Section 10.02(a) and 10.02(c) hereof, any
provision of this Trust Agreement may be amended by the Trustees and the
Depositor with the consent of Holders of at least a Majority in Liquidation
Preference of the Outstanding Trust Preferred Securities.
(c) In addition to and notwithstanding any other provision in this Trust
Agreement, without the consent of each affected Securityholder, this Trust
Agreement may not be amended to (i) change the amount, timing or currency of any
Distribution or Liquidation Distribution on the Trust Securities or otherwise
adversely affect the method of payment of any Distribution or Liquidation
Distribution required to be made in respect of the Trust Securities as of a
specified date; (ii) change the redemption provisions of the Trust Securities;
(iii) restrict the right of a Securityholder to institute suit for the
enforcement of any such payment contemplated in (i) or (ii) above on or after
the related payment date; (iv) modify the first sentence of Section 2.06 hereof;
(v) authorize or issue any beneficial interest in the Trust other than as
contemplated by this Trust Agreement as of the date hereof; (vi) change the
conditions precedent for the Depositor to elect to dissolve the Trust and
distribute the Distributable Debentures to Holders of Trust Preferred Securities
as set forth in Section 8.02; or (vii) affect the limited liability of any
Holder of Trust Preferred Securities, and, notwithstanding any other provision
herein, without the unanimous consent of the Securityholders, paragraphs (b) and
(c) of this Section 10.02 may not be amended.
(d) Notwithstanding any other provisions of this Trust Agreement, no
amendment to this Trust Agreement shall be made without receipt by the Trust of
an Opinion of Counsel experienced in such matters to the effect that such
amendment or the exercise of any power granted to the Trustees in accordance
with such amendments will not affect the Trust's status as a grantor trust for
United States federal income tax purposes or its exemption from regulation as an
"investment company" under the 1940 Act.
(e) Notwithstanding anything in this Trust Agreement to the contrary,
without the consent of the Depositor, this Trust Agreement may not be amended in
a manner which imposes any additional obligation on the Depositor.
(f) In the event that any amendment to this Trust
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Agreement is made, the Administrative Trustees shall promptly provide to the
Depositor a copy of such amendment.
(g) In executing any amendment to the Trust Agreement, the Property Trustee
shall be entitled to receive, and (subject to Section 7.01) shall be fully
protected in relying upon, an Officer's Certificate and Opinion of Counsel
stating that the execution of such amendment is authorized or permitted by this
Trust Agreement. Except as contemplated by Section 7.11, any Trustee may, but
shall not be obligated to, enter into any amendment to this Trust Agreement
which affects the Trustee's own rights, duties or immunities under this Trust
Agreement or otherwise.
SECTION 10.03. Severability.
In case any provision in this Trust Agreement or in the Trust Securities
Certificates 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 10.04. Governing Law.
THIS TRUST AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF EACH OF THE
SECURITYHOLDERS, THE TRUST AND THE TRUSTEES WITH RESPECT TO THIS TRUST AGREEMENT
AND THE TRUST SECURITIES SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO CONFLICT OF LAWS
PRINCIPLES.
SECTION 10.05. Successors and Assigns.
This Trust Agreement shall be binding upon and shall inure to the benefit
of any successor to the Trust or successor Trustee or both, including any
successor by operation of law. Except in connection with a consolidation,
merger, conversion or sale involving the Depositor that is permitted under
Article 5 of the HECO Indenture and pursuant to which the assignee agrees in
writing to perform the Depositor's obligations hereunder, the Depositor shall
not assign its obligations hereunder.
SECTION 10.06. Headings.
The Article and Section headings are for convenience only and shall not
affect the construction of this Trust Agreement.
SECTION 10.07. Reports, Notices and Demands.
(a) Any report, notice, demand or other communication which by any
provision of this Trust Agreement is required or
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permitted to be given or served to or upon any Securityholder or the Depositor
may be given or served in writing by deposit thereof, first-class postage
prepaid in the United States mail, hand delivery or facsimile transmission, in
each case, addressed, (i) in the case of a Holder of a Trust Preferred Security,
to such Holder of a Trust Preferred Security as such Securityholder's name and
address may appear on the Securities Register; and (ii) in the case of the
Holder of a Common Security or the Depositor, to Hawaiian Electric Company,
Inc., 900 Richards Street, Honolulu, Hawaii 96813, Attention: Treasurer,
facsimile no.: (808) 543-7966. Such notice, demand or other communication to or
upon a Securityholder shall be deemed to have been sufficiently given or made,
for all purposes, upon hand delivery, mailing or transmission.
(b) Any notice, demand or other communication which by any provision of
this Trust Agreement is required or permitted to be given or served to or upon
the Trust, the Property Trustee or the Administrative Trustees shall be given in
writing addressed (until another address is published by the Trust) as follows:
(i) with respect to the Property Trustee to The Bank of New York, 101 Barclay
Street 21st Floor, New York, New York 10286, Attention: Corporate Trust Trustee
Administration; (ii) with respect to the Delaware Trustee, to The Bank of New
York (Delaware), White Clay Center, Route 273, Newark, Delaware 19711,
Attention: Corporate Trust Department; and (iii) with respect to the
Administrative Trustees, to the address above for notices to the Depositor,
marked "Attention: Administrative Trustees of HECO Capital Trust II c/o
Treasurer." Such notice, demand or other communication to or upon the Trust or
the Property Trustee shall be deemed to have been sufficiently given or made
only upon actual receipt of the writing by the Trust or the Property Trustee.
SECTION 10.08. Agreement Not to Petition.
Each of the Trustees and the Depositor agree for the benefit of the
Securityholders that, until at least one year and one day after the Trust has
been dissolved in accordance with Article 8, they shall not file, or join in the
filing of, a petition against the Trust under any Bankruptcy Laws or otherwise
join in the commencement of any proceeding against the Trust under any
Bankruptcy Law. In the event the Depositor or any of the Trustees takes action
in violation of this Section 10.08, the Property Trustee agrees, for the benefit
of Securityholders, that at the expense of the Depositor, it shall file an
answer with the bankruptcy court or otherwise properly contest the filing of
such petition by the Depositor or any of the Trustees, as applicable, against
the Trust or the commencement of such action and raise the defense that the
Depositor has agreed in writing not to take such action and should be stopped
and precluded therefrom and such other
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defenses, if any, as counsel for the Property Trustee or the Trust may assert.
The provisions of this Section 10.08 shall survive the dissolution of this Trust
Agreement.
SECTION 10.09. Trust Indenture Act; Conflict with Trust Indenture Act.
(a) This Trust Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Trust Agreement and shall, to
the extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a trustee for
the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in this Trust Agreement by any
of the provisions of the Trust Indenture Act, such required provision shall
control. If any provision of this Trust Agreement modifies or excludes any
provision of the Trust Indenture Act which may be so modified or excluded, the
latter provision shall be deemed to apply to this Trust Agreement as so modified
or excluded, as the case may be.
(d) The application of the Trust Indenture Act to this Trust Agreement
shall not affect the nature of the Trust Securities as equity securities
representing undivided beneficial interests in the assets of the Trust.
SECTION 10.10. Acceptance of Terms of Trust Agreement, Guarantees and
Indentures.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN BY
OR ON BEHALF OF A SECURITYHOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY SIGNATURE
OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL
ACCEPTANCE BY THE SECURITYHOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN
SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT AND
AGREEMENT TO THE SUBORDINATION PROVISIONS AND OTHER TERMS OF THE TRUST
GUARANTEE, THE INDENTURES AND THE SUBSIDIARY GUARANTEES, AND SHALL CONSTITUTE
THE AGREEMENT OF THE TRUST, SUCH SECURITYHOLDER AND SUCH OTHERS THAT THE TERMS
AND PROVISIONS OF THIS TRUST AGREEMENT SHALL BE BINDING, OPERATIVE AND EFFECTIVE
AS BETWEEN THE TRUST AND SUCH SECURITYHOLDER AND SUCH OTHERS.
IN WITNESS WHEREOF, the parties have caused this Trust Agreement to be duly
executed, all as of the day and year first
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above written.
HAWAIIAN ELECTRIC COMPANY, INC., as Depositor
By: /s/ Paul Oyer
--------------------------------------
Paul A. Oyer
Financial Vice President
and Treasurer
By: /s/ Marvin A. Hawthorne
--------------------------------------
Marvin A. Hawthorne
Assistant Treasurer
THE BANK OF NEW YORK, as Property Trustee
By: /s/ T.C. Knight
--------------------------------------
Name: Thomas C. Knight
Title: Assistant Vice President
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee
By: /s/ W.N. Gitlin
--------------------------------------
Name: Walter N. Gitlin
Title: Authorized Signatory
T. MICHAEL MAY,
as Administrative Trustee
/s/ T. Michael May
------------------------------------------
PAUL A. OYER,
as Administrative Trustee
/s/ Paul Oyer
------------------------------------------
LORIE ANN NAGATA,
as Administrative Trustee
/s/ Lorie Ann Nagata
------------------------------------------
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EXHIBIT 4(d)
HAWAIIAN ELECTRIC COMPANY, INC.
AND
THE BANK OF NEW YORK, AS TRUSTEE
JUNIOR INDENTURE
DATED AS OF DECEMBER 1, 1998
PROVIDING FOR THE ISSUANCE OF
JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURES IN SERIES
INCLUDING
7.30% JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURES,
SERIES 1998
<PAGE>
JUNIOR INDENTURE (this "Indenture" or "Junior Indenture"), dated as of
December 1, 1998, by and between Hawaiian Electric Company, Inc., a corporation
duly organized and existing under the laws of the State of Hawaii (the
"Company"), and The Bank of New York, a New York banking corporation, as trustee
(the "Trustee").
WHEREAS, the Company may from time to time issue, authenticate and deliver
securities under this Indenture, in one or more series (the "Debentures").
WHEREAS, the Company may from time to time create or establish one or more
statutory business trusts for the purpose of issuing undivided beneficial
interests in the assets thereof (the "Trust Securities") and using the proceeds
thereof to acquire any of the Company's Debentures.
WHEREAS, the Company, as depositor, The Bank of New York, as Property
Trustee (the "Property Trustee II"), The Bank of New York, as Delaware Trustee
(the "Delaware Trustee II"), and the Administrative Trustees named therein have
heretofore duly declared and established HECO Capital Trust II, a Delaware
business trust ("Trust II"), by entering into a Trust Agreement dated as of
October 7, 1998 (the "Original Trust Agreement") and by executing and filing
with the Secretary of State of the State of Delaware a Certificate of Trust on
October 15, 1998.
WHEREAS, the Original Trust Agreement has been amended and restated
pursuant to an Amended and Restated Trust Agreement dated as of December 1, 1998
among the Company, as depositor, the Property Trustee II, the Delaware Trustee
II, the Administrative Trustees named therein and the holders, from time to
time, of undivided beneficial interests in the assets of Trust II (the "Trust II
Agreement").
WHEREAS, the Company has authorized the issuance of its 7.30% Junior
Subordinated Deferrable Interest Debentures, Series 1998 (the "Series 1998
Debentures") to be purchased by Trust II with a portion of the proceeds from the
issuance and sale of the Trust Securities of Trust II, and the Company has duly
authorized the execution and delivery of this Junior Indenture.
WHEREAS, all things necessary to make the securities issued hereunder, when
duly issued and executed by the Company and authenticated and delivered
hereunder, the valid obligations of the Company, and to make this Junior
Indenture a valid and binding agreement of the Company, enforceable against the
Company in accordance with its terms, have been done.
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NOW THEREFORE, each of the Company and the Trustee, intending to be legally
bound hereby, agrees as follows for the benefit of the other party and for the
equal and ratable benefit of the Holders (as hereinafter defined) of the
securities issued hereunder, including the Series 1998 Debentures:
ARTICLE 1. DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"Additional Series 1998 Debentures" means 7.30% Junior Subordinated
Deferrable Interest Debentures, Series 1998 of the Company issued under this
Indenture in connection with the Debenture Exchange and in an aggregate
principal amount equal to the aggregate principal amount of the Subsidiary
Debentures then held by Trust II and having the same terms as the Series 1998
Debentures then held by Trust II.
"Additional Sums" means the additional amounts, as provided in Section 4.06
hereof, as may be necessary in order that the amount of distributions then due
and payable by any Trust on its outstanding Trust Securities shall not be
reduced as a result of any additional taxes, duties or other governmental
charges to which such Trust has become subject.
"Affiliate" of any specified Person means any other Person, directly or
indirectly, controlling or controlled by or under direct or indirect common
control with such specified Person. When used with respect to any Person,
"control" means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Board of Directors" means the Board of Directors of the Company or any
committee thereof duly authorized to act on behalf of such Board.
"Board Resolution" means (i) a copy of a resolution certified by the
Secretary or the Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification and delivered to the Trustee or (ii) a certificate signed by an
authorized officer or officers to whom the Board of Directors has delegated its
authority, and in each case, delivered to the Trustee.
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"Business Day" means any day that is not a Saturday, a Sunday or a day on
which banking institutions in the City of New York are authorized or required by
law or executive order to close.
"Capital Lease Obligation" of a Person means any obligation which is
required to be classified and accounted for as a capital lease on the face of a
balance sheet of such Person prepared in accordance with GAAP.
"Capital Stock" means any and all shares, interests, rights to purchase,
warrants, options, participation or other equivalents of or interests in
(however designated) corporate stock.
"Company" means Hawaiian Electric Company, Inc., a Hawaii corporation, or
any successor thereto.
"Company Order" means a written request or order signed in the name of the
Company by an Officer of the Company and delivered to the Trustee.
"Debenture Exchange" means the issuance of Debentures by the Company in
exchange for the Subsidiary Debentures held by Trust II pursuant to Section
2.05(b) of the Trust II Agreement.
"Debentureholder" or "Holder" means a Person in whose name a Debenture is
registered on the Registrar's books.
"Debentures" shall mean any of the securities of any series issued,
authenticated and delivered under this Junior Indenture.
"Default" means any event which is, or after notice or passage of time, or
both, would be, an Event of Default pursuant to Section 6.01 hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Extension Period", with respect to any series of Debentures, means the
period during which the Company may elect to extend the interest payment period
on such series of the Debentures pursuant to Section 4.01(b) hereof; provided
that no Extension Period shall extend beyond the Stated Maturity Date or the
Redemption Date of any Debenture of such series.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public
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Accountants and statements and pronouncements of the Financial Accounting
Standards Board.
"HELCO" means Hawaii Electric Light Company, Inc., a corporation duly
organized under the laws of the Republic of Hawaii, or any successor thereto.
"HELCO Indenture" means the Junior Indenture, dated as of December 1, 1998,
by and among HELCO, the Company, as guarantor, and The Bank of New York, a New
York banking corporation, as trustee thereunder, as amended or supplemented from
time to time in accordance with the terms thereof, including the provisions of
the TIA that are deemed to be a part thereof.
"Holder" or "Debentureholder" means a person in whose name a Debenture is
registered on the Registrar's books.
"Indebtedness" means, without duplication, with respect to the Company,
whether recourse is to all or a portion of the assets of the Company and whether
or not contingent, (i) every obligation of the Company for money borrowed; (ii)
every obligation of the Company evidenced by bonds, debentures, notes or other
similar instruments, including obligations incurred in connection with the
acquisition of property, assets or businesses; (iii) every reimbursement
obligation of the Company with respect to letters of credit, bankers'
acceptances or similar facilities issued for the account of the Company; (iv)
every obligation of the Company issued or assumed as the deferred purchase price
of property or services (but excluding trade accounts payable or accrued
liabilities arising in the ordinary course of business); (v) Capital Lease
Obligations of the Company; and (vi) every obligation of the type referred to in
clauses (i) through (v) above of another Person and all dividends of another
Person the payment of which, in either case, the Company has guaranteed or is
responsible or liable, directly or indirectly, as obligor or otherwise.
"Indenture" or "Junior Indenture" means this Junior Indenture, as amended
or supplemented from time to time in accordance with the terms hereof, including
the provisions of the TIA that are deemed to be a part hereof.
"Interest Payment Date", when used with respect to the Debentures of any
series, means the stated maturity of any installment of interest on the
Debentures of that series.
"Issue Date", with respect to a series of Debentures, means the date on
which the Debentures of such series are originally issued.
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"MECO" means Maui Electric Company, Limited, a corporation duly organized
under the laws of the Territory of Hawaii, or any successor thereto.
"MECO Indenture" means the Junior Indenture, dated as of December 1, 1998,
by and among MECO, the Company, as guarantor, and The Bank of New York, a New
York banking corporation, as trustee thereunder, as amended or supplemented from
time to time in accordance with the terms thereof, including the provisions of
the TIA that are deemed to be a part thereof.
"Officer" means, with respect to any corporation, the Chairman of the
Board, the President, any Vice President, the Treasurer, any Assistant
Treasurer, the Secretary or any Assistant Secretary of such corporation and, for
MECO, includes the Controller.
"Officer's Certificate" means a written certificate containing the
applicable information specified in Sections 11.04 and 11.05 hereof, signed in
the name of the Company by any one or more of its Officers, and delivered to the
Trustee.
"Opinion of Counsel" means a written opinion containing the applicable
information specified in Sections 11.04 and 11.05 hereof, by legal counsel (who
may be counsel to the Company) and is reasonably acceptable to the Trustee.
"Paying Agent" means any Person authorized by the Company to pay the
principal of and premium, if any, and interest on the Debentures of any series
on behalf of the Company.
"Person" means any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated
organization, government or any agency or political subdivision thereof or any
other entity.
"Predecessor Debentures" of any particular Debenture means every previous
Debenture evidencing all or a portion of the same debt as that evidenced by such
particular Debenture; and for purposes of this definition, any Debenture
authenticated and delivered under Section 2.09 hereof in exchange for or in lieu
of a mutilated, destroyed, lost or stolen Debenture shall be deemed to evidence
the same debt as the mutilated, destroyed, lost or stolen Debenture.
"Property Trustee II" means The Bank of New York and its successors and
assigns, as property trustee under the Trust II Agreement.
"Record Date", with respect to any series of the Debentures, means the
Regular Record Date, the Special Record
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Date or any date set to determine the Holders of Debentures of such series
entitled to vote, consent, make a request or exercise any other right associated
with such series of Debentures.
"Redemption Date", with respect to any Debentures of any series to be
redeemed, means the date specified for the redemption thereof in accordance with
the terms thereof and pursuant to Article 3 of this Junior Indenture.
"Redemption Price", with respect to any Debentures of any series to be
redeemed, means the price at which such Debenture is to be redeemed in
accordance with the terms thereof and pursuant to Article 3 of this Junior
Indenture.
"Regular Record Date", with respect to an interest payment on any
Debentures of any series, means the date specified for the determination of
Holders entitled to receive payment of interest on the next succeeding Interest
Payment Date in accordance with the terms thereof or this Indenture.
"SEC" or "Commission" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Indebtedness" means, with respect to the Company, the principal of
(and premium, if any) and interest, if any (including interest accruing on or
after the filing of any petition in bankruptcy or for reorganization relating to
the Company whether or not such claim for post-petition interest is allowed in
such proceeding), on Indebtedness, whether incurred on or prior to the date of
this Indenture or thereafter incurred, unless, in the instrument creating or
evidencing the same or pursuant to which the same is outstanding, it is provided
that such obligations are not superior in right of payment to the Debentures or
to other Indebtedness which is pari passu with, or subordinated to, the
Debentures; provided, however, that Senior Indebtedness shall not be deemed to
include (i) any Indebtedness of the Company which, when incurred and without
respect to any election under Section 1111(b) of the Bankruptcy Code, was
without recourse to the Company, (ii) any Indebtedness of the Company to any of
its subsidiaries, (iii) Indebtedness to any employee of the Company, (iv) any
liability for taxes, and (v) indebtedness or monetary obligations to trade
creditors or assumed by the Company or any of its subsidiaries in the ordinary
course of business in connection with the obtaining of materials or services.
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"Series 1998 Debentures" means any of the Company's 7.30% Junior
Subordinated Deferrable Interest Debentures, Series 1998 issued under this
Junior Indenture, including, on or after the date of the Debenture Exchange, any
Additional Series 1998 Debentures issued in such Debenture Exchange.
"Special Record Date" for the payment of any Defaulted Interest on the
Debentures of any series means the date determined pursuant to Section 2.03(c)
hereof.
"Stated Maturity Date", with respect to any Debenture or any installment of
principal thereof, means the date specified for such Debenture as the fixed date
on which the principal of such Debenture or such installment is due and payable,
as such date may be shortened or extended pursuant to the terms thereof or this
Indenture.
"Subsidiary" means MECO, HELCO and any other corporation, association,
partnership, trust or other business entity of which more than 50% of the total
voting power of shares of Capital Stock or other interests (including
partnership interests) entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof
is at the time owned or controlled, directly or indirectly, by (i) the Company,
(ii) the Company and one or more Subsidiaries or (iii) one or more Subsidiaries.
"Subsidiary Debentures" means, collectively the 7.30% Junior Subordinated
Deferrable Interest Debentures, Series 1998 of HELCO issued pursuant to the
HELCO Indenture and the 7.30% Junior Subordinated Deferrable Interest
Debentures, Series 1998 of MECO issued pursuant to the MECO Indenture.
"Subsidiary Guarantees" means the Company's full and unconditional
guarantees of the obligations of HELCO and MECO as set forth in Article 11 of
the HELCO Indenture and the MECO Indenture, respectively.
"TIA" means the Trust Indenture Act of 1939, as amended and as in effect on
the date of this Junior Indenture; provided, however, that if the TIA is amended
after such date, TIA means, to the extent required by any such amendment, the
TIA as so amended.
"Trust" means any statutory business trust created by the Company to issue
Trust Securities and to use the proceeds from the sale thereof to purchase
Debentures.
"Trust Common Securities" means common securities of a Trust, representing
undivided beneficial interests, excluding
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the interests represented by Trust Preferred Securities, in the assets of such
Trust.
"Trust Guarantee Agreement" means the Trust II Guarantee Agreement or any
other similar guarantee by the Company with respect to any securities of any of
its Subsidiaries, provided that the proceeds from the issuance of such
securities were used to purchase junior subordinated deferrable interest
debentures issued by the Company or any Subsidiary.
"Trust II" means HECO Capital Trust II, a Delaware statutory business trust
created under the Delaware Business Trust Act, Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C. (S) 3801, et seq.
"Trust II Agreement" means the Amended and Restated Trust Agreement, dated
as of December 1, 1998, among the Company, as depositor, the Property Trustee
II, the Delaware Trustee II, the Administrative Trustees named therein and the
holders, from time to time, of undivided beneficial interests in the assets of
Trust II, as the same may be amended and modified from time to time.
"Trust II Common Securities" means the Trust Common Securities of Trust II,
representing the undivided beneficial interests, excluding the interests
represented by Trust II Preferred Securities, in the assets of Trust II.
"Trust II Guarantee Agreement" means the Trust Guarantee Agreement dated as
of December 1, 1998 from the Company, as guarantor, to The Bank of New York, as
Trust Guarantee Trustee, with respect to the Trust II Preferred Securities.
"Trust II Preferred Securities" means the Trust Preferred Securities of
Trust II, representing the undivided preferred beneficial interests in the
assets of Trust II, having a liquidation preference of $25 per security and
having rights provided therefor in the Trust II Agreement.
"Trust Officer", when used with respect to the Trustee, means any Vice
President, any Assistant Vice President, any trust officer, or assistant trust
officer or any other officer of the corporate trust department of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of that
officer's knowledge of and familiarity with the particular subject.
"Trust Preferred Securities" means preferred securities of a Trust,
representing undivided preferred beneficial interests
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in the assets of such Trust with a preference under certain circumstances with
respect to cash distributions and amounts payable on liquidation, redemption or
otherwise.
"Trust Securities" means the undivided beneficial interests in the assets
of a Trust.
"Trustee" means The Bank of New York, solely in its capacity as Trustee
under this Junior Indenture unless and until a successor replaces it pursuant to
the applicable provisions of this Junior Indenture and, thereafter, shall mean
such successor.
"U.S. Government Obligations" means direct obligations (or certificates
representing an ownership interest in such obligations) of the United States of
America (including any agency or instrumentality thereof) for the payment of
which the full faith and credit of the United States of America is pledged and
which are not callable at the issuer's option.
SECTION 1.02. Other Definitions.
<TABLE>
<CAPTION>
TERM DEFINED IN SECTION
---- ------------------
<S> <C>
"Act".................................... 1.05(a)
"Bankruptcy Law"......................... 6.01(c)
"Custodian".............................. 6.01(c)
"Defaulted Interest"..................... 2.03(c)
"Depository"............................. 2.12(a)
"Event of Default"....................... 6.01(a)
"Global Debenture"....................... 2.12(a)
"Investment Company Event"............... 3.01(a)
"Legal Holiday".......................... 11.08
"Notice of Default"...................... 6.01(a)
"Securities Register".................... 2.05(a)
"Registrar"............................... 2.05(a)
"Special Event"........................... 3.01(a)
"Successor"............................... 5.01(a)
"Tax Action".............................. 3.01(a)
"Tax Event"............................... 3.01(a)
</TABLE>
SECTION 1.03. Incorporation by Reference of Trust Indenture Act.
Whenever this Junior Indenture refers to a provision of the TIA, such
provision is incorporated by reference in and made a part of this Junior
Indenture. The following TIA terms used in this Junior Indenture have the
following meanings:
"Junior Indenture securities" means the Debentures.
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"Junior Indenture security holder" means a Debentureholder or Holder.
"Junior Indenture to be qualified" means this Junior Indenture.
"Junior Indenture trustee" or "institutional trustee" means the
Trustee.
"Obligor" on the Junior Indenture securities means the Company and any
other obligor on the Debentures.
All other TIA terms used in this Junior Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rules have the
meanings assigned to them by such definitions.
SECTION 1.04. Rules of Construction.
Unless the context otherwise requires:
(a) Each capitalized term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning assigned to it
in accordance with GAAP;
(c) "or" is not exclusive;
(d) "including" means including, without limitation;
(e) words in the singular include the plural, and words in the plural
include the singular; and
(f) "herein," "hereof" and other words of similar import refer to this
Junior Indenture as a whole and not to any particular Article, Section or
other subdivision.
SECTION 1.05. Acts of Holders and Holders of Trust Preferred Securities.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Junior Indenture to be given or taken by
Holders or by holders of Trust Preferred Securities may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Holders or holders of Trust Preferred Securities, as applicable, in person
or by an agent duly appointed in writing and, except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments are
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delivered to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of Holders or
holders of Trust Preferred Securities signing such instrument or instruments.
Proof of execution of any such instrument or of a writing appointing any such
agent shall be sufficient for any purpose of this Junior Indenture and
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section.
(b) The fact and date of the execution by any Person of any such instrument
or writing may be proved in any manner which the Trustee deems sufficient.
(c) The ownership of Debentures shall be proved by the Securities Register.
(d) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Debenture shall bind every future Holder of
the same Debenture and the Holder of every Debenture issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Debenture.
(e) If the Company solicits from the Holders any request, demand,
authorization, direction, notice, consent, waiver or other Act, the Company may,
at its option, by or pursuant to a resolution of its Board of Directors, fix in
advance a Record Date for the determination of Holders entitled to give such
request, demand, authorization, direction, notice, consent, waiver or other Act,
but the Company shall have no obligation to do so. If such a Record Date is
fixed, such request, demand, authorization, direction, notice, consent, waiver
or other Act may be given before or after such Record Date, but only Holders of
record at the close of business on such Record Date shall be deemed to be
Holders for the purposes of determining whether Holders of the requisite
proportion of outstanding Debentures have authorized or agreed or consented to
such request, demand, authorization, direction, notice, consent, waiver or other
Act, and for that purpose the outstanding Debentures shall be computed as of
such Record Date.
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ARTICLE 2. THE DEBENTURES; THE SERIES 1998 DEBENTURES
SECTION 2.01. Issue of Debentures Generally.
(a) The aggregate principal amount of any series of Debentures which may be
authenticated and delivered under this Junior Indenture is unlimited.
(b) The Debentures may be issued in one or more series as from time to time
shall be authorized by the Board of Directors pursuant to one or more indentures
supplemental hereto or Officer's Certificates authorized pursuant to Board
Resolutions. The Debentures of each series shall be pari passu with any and all
other notes, debentures and other evidences of indebtedness of the Company that
shall contain or have applicable thereto subordination provisions substantially
identical in effect to the subordination provisions set forth in Section 10.01
hereof providing for such indebtedness being junior and subordinate in right of
payment to all Senior Indebtedness.
(c) The Debentures of each series and the Trustee's Certificate of
Authentication shall be substantially in the form attached to this Junior
Indenture as Exhibit A or, in the case of any series other than the Series 1998
Debentures, substantially in the forms to be attached as exhibits to an
indenture supplemental hereto or an Officer's Certificate authorized pursuant to
a Board Resolution creating such series with such inclusions, omissions and
variations as to letters, years, numbers or other marks of identification or
designation and such legends or endorsements printed, lithographed or engraved
thereon as the Company may deem appropriate and as are not inconsistent with the
provisions of this Junior Indenture, or as may be required to comply with any
law or with any rule or regulation made pursuant thereto or with any rule or
regulation of any securities exchange on which such Debentures may be listed, or
to conform to usage.
(d) Other series of Debentures may differ from the Series 1998
Debentures, and as and between series, in respect of any or all of the following
matters:
(1) designation;
(2) Stated Maturity Date or Dates, which may be serial, and the
Company's option, if any, to shorten or extend the Stated Maturity Date or
Dates;
(3) interest rate or method of determination of the interest rate;
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(4) the basis upon which interest shall be computed if other than a
360-day year composed of twelve 30-day months;
(5) Interest Payment Dates and Regular Record Dates therefor;
(6) the maximum duration of the Extension Period;
(7) Issue Date or Dates and interest accrual provisions;
(8) authorized denominations;
(9) the place or places for the payment of principal (and premium,
if any) and interest;
(10) the aggregate principal amount of Debentures of such series
which may be issued;
(11) the optional and mandatory redemption provisions, if any;
(12) provisions, if any, for any sinking or analogous fund;
(13) the currency or currencies in which the principal of and
premium, if any, and interest on the Debentures may be paid by the Company;
(14) if the Debentures of any series will be issued as Global
Debentures pursuant to Section 2.12 hereof, the identity of the Depository
and any other terms relating thereto to the extent not set forth in Section
2.12 hereof; and
(15) any other provisions expressing or referring to the terms and
conditions upon which the Debentures of such series are to be issued under
this Junior Indenture which are not in conflict with the provisions of this
Junior Indenture;
in each case as determined by the Board of Directors and specified in an
indenture supplemental hereto or in an Officer's Certificate authorized pursuant
to a Board Resolution creating such series.
SECTION 2.02. Terms and Form of the Series 1998 Debentures.
(a) The Series 1998 Debentures shall be designated "Hawaiian Electric
Company, Inc., 7.30% Junior Subordinated
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Deferrable Interest Debentures, Series 1998." The Series 1998 Debentures and the
Trustee's Certificate of Authentication shall be substantially in the form of
Exhibit A attached hereto. The Series 1998 Debentures shall initially be
represented by a single certificate registered in the name of The Bank of New
York as Property Trustee II for the benefit of Trust II. The terms and
provisions contained in the Series 1998 Debentures shall constitute, and are
hereby expressly made, a part of this Junior Indenture. The Company and the
Trustee, by their execution and delivery of this Junior Indenture, expressly
agree to such terms and provisions and to be bound thereby.
(b) The Series 1998 Debentures shall be issued at 100% of their principal
amount.
(c) The aggregate principal amount of Series 1998 Debentures outstanding at
any time may not exceed $31,546,400, except if the Debenture Exchange has
occurred the aggregate principal amount of Series 1998 Debentures outstanding at
any time (including the Additional Series 1998 Debentures) may not exceed
$51,546,400, except as provided in Section 2.09 hereof. The Series 1998
Debentures shall be authenticated and delivered upon receipt by the Trustee of
the items specified in Section 2.04(d) hereof.
(d) The Stated Maturity Date of the Series 1998 Debentures is December 15,
2028. The Stated Maturity Date for the Series 1998 Debentures may be shortened
or extended at any time at the election of the Company for one or more periods,
but in no event to a date earlier than December 15, 2003 or to a date later than
December 15, 2047; provided that at the time such election is made and at the
time of any such shortening or extension (i) an Event of Default described in
Section 6.01(a)(1), 6.01(a)(3) or 6.01(a)(4) hereof has not occurred and is
continuing and, unless the Debenture Exchange has occurred, an "Event of
Default" described in Section 6.01(a)(1), 6.01(a)(3) or 6.01(a)(4) of each of
the MECO Indenture and the HELCO Indenture has not occurred and is continuing,
(ii) Trust II is not delinquent in payment of distributions on the Trust II
Preferred Securities for more than one full quarterly distribution period, (iii)
no deferred distributions on the Trust II Preferred Securities are accumulated,
and (iv) the Trust II Preferred Securities, or, if the Debenture Exchange has
occurred, the Series 1998 Debentures, are rated not less than BBB- by Standard &
Poor's or Baa3 by Moody's Investors Services, Inc. or the equivalent by any
other nationally recognized statistical rating organization.
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<PAGE>
(e) The interest rate for the Series 1998 Debentures is 7.30% per annum.
The Interest Payment Dates for the 1998 Debentures are March 31, June 30,
September 30 and December 31 of each year, commencing March 31, 1999. In the
event that any date on which interest is payable on the Series 1998 Debentures
is not a Business Day, then payment of the interest payable on such date will be
made on the next succeeding day that is a Business Day (and without any interest
or other payment in respect of any such delay), except that if such Business Day
is in the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day (without any reduction in interest or other
payments in respect of such early payment), in each case with the same force and
effect as if made on the date such payment was originally payable. The Regular
Record Date for each Interest Payment Date for the Series 1998 Debentures shall
be the close of business on the Business Day immediately preceding such Interest
Payment Date, provided that in the event that the Series 1998 Debentures are
issued in definitive form while they are not held by Trust II, the Regular
Record Date for each Interest Payment Date for the Series 1998 Debentures shall
be the close of business on the date that is 15 days prior to such Interest
Payment Date, whether or not such date is a Business Day.
(f) Each Series 1998 Debenture shall bear interest from its Issue Date or
from the most recent Interest Payment Date to which interest has been paid or
duly provided for with respect to such Series 1998 Debenture; except that, so
long as there is no existing Defaulted Interest or Extension Period on the
Series 1998 Debentures, any Series 1998 Debenture authenticated by the Trustee
between the Regular Record Date for any Interest Payment Date and such Interest
Payment Date shall bear interest from such Interest Payment Date.
(g) Defaulted Interest on any Series 1998 Debenture shall bear additional
interest at the rate per annum of 2% thereof compounded quarterly (to the extent
permitted by applicable law).
(h) Overdue principal of any Series 1998 Debenture shall bear interest at a
rate per annum equal to the interest rate per annum payable on such Series 1998
Debenture.
(i) Interest on any Series 1998 Debenture which has been deferred pursuant
to Section 4.01(b) hereof shall bear interest (to the extent that the payment of
such interest shall be legally enforceable) at a rate per annum equal to the
interest rate per annum payable on such Series 1998 Debenture compounded
quarterly from the most recent Interest Payment Date therefor.
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(j) The Series 1998 Debentures shall be redeemable prior to maturity as
provided in Section 3.01(a) hereof.
(k) The Series 1998 Debentures shall be issuable only in registered form
without coupons and only in denominations of $25 and any integral multiple
thereof.
(l) The maximum Extension Period for the Series 1998 Debentures shall be 20
consecutive quarters.
(m) If the Series 1998 Debentures are distributed to the holders of Trust
II Preferred Securities upon liquidation of Trust II, the Company shall use its
best efforts to list the Series 1998 Debentures on the New York Stock Exchange
or on such other stock exchange or other organization, if any, on which the
Trust II Preferred Securities are then listed. Upon any such distribution, if
the Trust II Preferred Securities are then in the book-entry system, the Series
1998 Debentures will be issued in the form of a Global Debenture, subject to
Section 2.12 hereof.
SECTION 2.03. Payment of Principal and Interest.
(a) Unless otherwise specified pursuant to Section 2.01(d) hereof, interest
on the Debentures shall be computed on the basis of a 360-day year composed of
twelve 30-day months, except that for any period shorter than a full calendar
month, interest will be computed on the basis of the actual number of days
elapsed in such period.
(b) Unless otherwise provided with respect to a series of Debentures,
(1) the principal and Redemption Price of and interest on each
Debenture shall be payable 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;
(2) the principal and Redemption Price of any Debenture and interest
payable on the Stated Maturity Date (if other than an Interest Payment
Date) or Redemption Date shall be payable upon surrender of such Debenture
at the office or agency of any Paying Agent therefor; provided, however,
that payments of such principal, Redemption Price or interest in respect of
the Series 1998 Debentures to Trust II as the sole holder thereof or in
respect of Global Debentures shall be made in immediately available funds
to Property Trustee II on behalf of Trust II or to the Depository pursuant
to Section 2.12 hereof, as the case may be; and
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(3) interest on any Debenture (other than on the Stated Maturity
Date or Redemption Date) shall be paid on each Interest Payment Date
therefor to the Holder thereof at the close of business on the Regular
Record Date therefor, such interest to be payable at the option of the
Company by (i) check mailed to the address of the Person entitled thereto
as such address appears on the Securities Register or (ii) by transfer to
an account maintained by the person entitled thereto as specified in the
Securities Register, provided that proper and timely transfer instructions
have been received ten Business Days prior to the Regular Record Date;
provided however, that (aa) at the written request of the Holder of at
least $10,000,000 aggregate principal amount of Debentures received by the
Registrar not later than ten Business Days prior to the Regular Record Date
for such Interest Payment Date, such interest accrued on such Debenture
will be payable by wire transfer within the continental United States in
immediately available funds to the bank account number of such Holder
specified in such request and entered on the Securities Register by the
Registrar and (bb) payments of such interest made in respect of the Series
1998 Debentures to Trust II as the sole holder thereof or in respect of
Global Debentures shall be made in immediately available funds to Property
Trustee II on behalf of Trust II or the Depository pursuant to Section 2.12
hereof, as the case may be.
(c) Except as specified pursuant to Section 2.01 or Section 4.01(b) hereof,
interest on any Debenture which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in whose
name that Debenture (or one or more Predecessor Debentures) is registered at the
close of business on the Regular Record Date for such interest. Any interest
(as used in this Indenture, the term "interest" shall include quarterly interest
payments, interest on quarterly interest payments not paid on the applicable
Interest Payment Date, and Additional Sums, as applicable) on any Debenture
which is payable, but is not punctually paid or duly provided for, on any
Interest Payment Date (herein called "Defaulted Interest") shall forthwith cease
to be payable to the Holder on the relevant Regular Record Date by virtue of
having been such Holder, and such Defaulted Interest may be paid by the Company,
at its election in each case, as provided in Clause (1) and (2) below:
(1) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Debentures (or their respective
Predecessor Debentures) are registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest,
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which shall be fixed in the following manner. The Company shall, not less
than 15 Business Days prior to the date of the proposed payment, notify the
Trustee and the Paying Agent in writing of the amount of Defaulted Interest
proposed to be paid on each Debenture and the date of the proposed payment,
and at the same time the Company shall deposit with the Paying Agent an
amount of money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements satisfactory
to the Paying Agent for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit of
the Persons entitled to such Defaulted Interest as in this Clause provided.
The Special Record Date for the payment of such Defaulted Interest shall be
the close of business on the tenth calendar day prior to the date of the
proposed payment. The Trustee shall, in the name and at the expense of the
Company, cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be given to the Holders thereof,
not less than 7 calendar days prior to such Special Record Date. Notice of
the proposed payment of such Defaulted Interest and the Special Record Date
therefor having been given, such Defaulted Interest shall be paid to the
Persons in whose names the Debentures (or their respective Predecessor
Debentures) are registered at the close of business on such Special Record
Date and shall no longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Debentures in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Debentures may be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee and the Paying Agent of the
proposed payment pursuant to this Clause, such manner of payment shall be
deemed practicable by the Paying Agent.
(d) Subject to the foregoing provisions of this Section, each Debenture
delivered under this Junior Indenture upon registration of transfer of or in
exchange for or in lieu of any other Debenture shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Debenture.
SECTION 2.04. Execution, Authentication and Delivery.
(a) The Debentures shall be executed on behalf of the Company by any two of
its Chairman, its President, its Financial Vice President or any of its
Assistant Treasurers,
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under its corporate seal imprinted or reproduced thereon. The signature of any
such Officer on the Debentures may be manual or facsimile.
(b) Debentures bearing the manual or facsimile signatures of individuals
who were at any time the proper Officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Debentures or did not
hold such offices at the date of such Debentures.
(c) No Debenture shall be entitled to any benefit under this Junior
Indenture or be valid or obligatory for any purpose unless there appears on such
Debenture a Certificate of Authentication duly executed by the Trustee by manual
signature of an authorized signatory, and such Certificate of Authentication
upon any Debenture shall be conclusive evidence, and the only evidence, that
such Debenture has been duly authenticated and made available for delivery
hereunder.
(d) The Trustee shall authenticate and deliver Debentures of a series, for
original issue, at one time or from time to time in accordance with the Company
Order referred to below, upon receipt by the Trustee of:
(1) a Board Resolution approving the form or forms and terms of such
Debentures;
(2) a Company Order requesting the authentication and delivery of such
Debentures;
(3) unless previously delivered, this Junior Indenture, and, with
respect to each series of Debentures other than the Series 1998 Debentures,
an indenture supplemental hereto or an Officer's Certificate authorized
pursuant to a Board Resolution setting forth the form of such Debentures
and establishing the terms thereof;
(4) the Debentures of such series, executed on behalf of the Company
in accordance with Section 2.04(a) hereof;
(5) an Officer's Certificate certifying that no Default or Event of
Default has occurred and is continuing; and
(6) an Opinion of Counsel to the effect that:
(A) the form or forms and the terms of such Debentures have been
duly authorized by the Company
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and have been established in conformity with the provisions of this Junior
Indenture; and
(B) such Debentures, when authenticated and delivered by the
Trustee and issued and delivered by the Company in the manner and subject
to any conditions specified in such Opinion of Counsel, will have been duly
issued under this Junior Indenture and will constitute valid and legally
binding obligations of the Company, entitled to the benefits provided by
this Junior Indenture, and enforceable against the Company in accordance
with their terms, subject, as to enforcement to laws relating to or
affecting generally the enforcement of creditors' rights, including,
without limitation, bankruptcy and insolvency laws and to general
principles of equity (whether considered in a proceeding in equity or at
law); and
(C) that this Junior Indenture or any supplemental Junior
Indenture referred to in clause (3) above has been duly authorized,
executed and delivered by the Company and is a valid instrument legally
binding upon the Company, enforceable against the Company in accordance
with its terms, subject as to enforcement to laws relating to or affecting
creditors' rights, including, without limitation, bankruptcy and insolvency
laws and to general principles of equity (whether considered in a
proceeding in equity or at law); and
(D) that all consents, approvals and orders of any commission,
governmental authority or agency required in connection with the issuance
and delivery of such Debentures have been obtained.
(e) The Trustee shall act as the initial authenticating agent. Thereafter,
the Trustee may appoint an authenticating agent. An authenticating agent may
authenticate Debentures whenever the Trustee may do so. Each reference in this
Junior Indenture to authentication by the Trustee includes authentication by
such agent. The Company shall pay any authenticating agent appointed by the
Trustee reasonable compensation for its services. The provisions set forth in
Section 7.02, Section 7.03, Section 7.04 and Section 7.07 hereof shall be
applicable to any authenticating agent.
(f) The Trustee shall have the right to decline to authenticate and deliver
any Debentures under this Section 2.04 if the Trustee, being advised by counsel,
determines that such
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action may not lawfully be taken or if the Trustee in good faith shall determine
that such action would expose the Trustee to personal liability to existing
Holders.
SECTION 2.05. Registrar and Paying Agent.
(a) The Company shall maintain or cause to be maintained, within or outside
the State of New York, an office or agency where Debentures of any series may be
presented for registration of transfer or for exchange ("Registrar") for each
place of payment for such series of Debentures, a Paying Agent at whose office
such series of Debentures may be presented or surrendered for payment, and an
office or agency where notices and demands to or upon the Company in respect of
the Debentures and this Junior Indenture may be served. The Registrar shall
keep a register (the "Securities Register") of such series of Debentures and of
their transfer and exchange. The Company may have one or more co-Registrars and
one or more additional Paying Agents. The term Registrar includes any
additional registrar and the term Paying Agent includes any additional paying
agent. The principal corporate trust office of the Trustee in New York, New
York, shall initially be the Registrar for the Series 1998 Debentures and agent
for service of notice or demands on the Company, and the Trustee shall initially
be the Paying Agent for the Series 1998 Debentures.
(b) The Company shall enter into an appropriate agency agreement with any
Registrar, Paying Agent or co-Registrar (if not the Company or the Trustee or an
affiliate of the Trustee). The agreement shall implement the provisions of this
Junior Indenture that relate to such agent. The Company shall give prompt
written notice to the Trustee and to the Holders of any change of location of
such office or agency. If at any time the Company shall fail to maintain or
cause to be maintained any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the address of the Trustee set
forth in Section 11.02 hereof. The Company shall notify the Trustee of the name
and address of any such agent. If the Company fails to maintain a Registrar,
Paying Agent or agent for service of notices or demands, the Trustee shall act
as such and shall be entitled to appropriate compensation therefor pursuant to
Section 7.07 hereof. The Company or any Affiliate of the Company may act as
Paying Agent, Registrar or co-Registrar or agent for service of notices and
demands.
(c) The Company may also from time to time designate one or more other
offices or agencies where Debentures of any series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations.
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The Company will give prompt written notice to the Trustee and to the Holders of
any such designation or rescission and of any change in location of any such
other office or agency.
SECTION 2.06. Paying Agent to Hold Money in Trust.
(a) Except as otherwise provided herein, prior to or on each due date of
the principal of and premium (if any) and interest on any Debenture, the Company
shall deposit with the Paying Agent a sum of money sufficient to pay such
principal, premium (if any) and interest so becoming due. The Company shall
require each Paying Agent (other than the Trustee or the Company) to agree in
writing that such Paying Agent shall hold in trust for the benefit of Holders or
the Trustee all money held by the Paying Agent for the payment of principal of
and premium (if any) and interest on the Debentures and shall notify the Trustee
of any Default by the Company in making any such payment. At any time during the
continuance of any such Default, the Paying Agent shall, upon the request of the
Trustee, forthwith pay to the Trustee all money so held in trust and account for
any money disbursed by it. The Company at any time may require a Paying Agent to
pay all money held by it to the Trustee and to account for any money disbursed
by it. Upon doing so, the Paying Agent shall have no further liability for the
money so paid over to the Trustee. If the Company, a Subsidiary or an Affiliate
of either of them acts as Paying Agent, it shall segregate the money held by it
as Paying Agent and hold it as a separate trust fund.
(b) The Companies may at any time designate additional Paying Agents or
rescind the designation of any Paying Agent; however, the Companies shall at all
times be required to maintain a Paying Agent in each place of payment for any
series of Debentures.
(c) Any monies deposited with the Trustee or any Paying Agent, or then held
by the Company in trust, for the payment of the principal of and premium, if
any, or interest on any series of Debentures and remaining unclaimed for two
years after such principal, premium, if any, or interest has become due and
payable shall, at the written request of the Company, be repaid to the Company
and the Holder of such Debentures shall thereafter look, as a general unsecured
creditor, only to the Company for payment thereof.
SECTION 2.07. Debentureholder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Debentureholders. If the Trustee is not the Registrar, the Company shall cause
to be furnished to
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the Trustee on or before the Record Date for each Interest Payment Date and at
such other times as the Trustee may request in writing, within five Business
Days of such request, a list, in such form as the Trustee may reasonably require
of the names and addresses of Debentureholders.
SECTION 2.08. Transfer and Exchange.
(a) When Debentures are presented to the Registrar or a co- Registrar with
a request to register the transfer or to exchange them for an equal aggregate
principal amount of Debentures of the same series of other authorized
denominations having the same date of original issuance and Stated Maturity Date
and bearing the same interest rate, the Registrar shall register the transfer or
make the exchange as requested if its reasonable requirements for such
transactions are met. To permit registrations of transfer and exchanges, the
Company shall execute and the Trustee shall authenticate Debentures, all at the
Registrar's request.
(b) Every Debenture presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company or the Registrar) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Registrar duly executed by the Holder or his attorney duly
authorized in writing.
(c) The Company shall not require payment of a service charge for any
registration of transfer or exchange of Debentures, but the Company may require
payment of a sum sufficient to pay all taxes, assessments or other governmental
charges that may be imposed in connection with the registration of the transfer
or exchange of Debentures from the Debentureholder requesting such transfer or
exchange (other than any exchange of a temporary Debenture for a definitive
Debenture not involving any change in ownership).
(d) In the event of any redemption, (a) the Company shall not be required
to issue any Debenture or to make, and the Registrar need not register,
transfers or exchanges of any Debenture for a period beginning at the opening of
business 15 days before the mailing of a notice of redemption of Debentures and
ending at the close of business on the day of such mailing or (b) the Company
shall not be required to make, and the Registrar need not register, transfers or
exchanges of any Debenture selected, called or being called for redemption,
except, in the case of any Debenture to be redeemed in part, the portion thereof
not to be redeemed.
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SECTION 2.09. Replacement Debentures.
(a) If (i) any mutilated Debenture is surrendered to the Company or the
Trustee, or (ii) the Company and the Trustee receive evidence to their
satisfaction of the destruction, loss or theft of any Debenture, and there is
delivered to the Company and the Trustee such bond or indemnity as may be
required by them to save each of them harmless, then, in the absence of notice
to the Company or the Trustee that such Debenture has been acquired by a bona
fide purchaser, the Company shall execute in exchange for any such mutilated
Debenture or in lieu of any such destroyed, lost or stolen Debenture, a new
Debenture of the same series and of like tenor and principal amount, bearing a
number not contemporaneously outstanding, and the Trustee shall authenticate and
make such new Debenture available for delivery.
(b) In case any such mutilated, destroyed, lost or stolen Debenture has
become or is about to become due and payable, or is about to be redeemed by the
Company pursuant to Article 3 hereof, the Company in its discretion may, instead
of issuing a new Debenture, pay or purchase such Debenture, as the case may be.
(c) Upon the issuance of any new Debentures under this Section 2.09, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) in connection
therewith.
(d) Every new Debenture issued pursuant to this Section 2.09 in lieu of any
mutilated, destroyed, lost or stolen Debenture shall constitute an original
additional contractual obligation of the Company (whether or not the mutilated,
destroyed, lost or stolen Debenture shall be at any time enforceable) and shall
be entitled to all benefits of this Junior Indenture equally and ratably with
any and all other Debentures duly issued hereunder.
(e) The provisions of this Section 2.09 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Debentures.
SECTION 2.10. Outstanding Debentures; Determinations of Holders' Action.
(a) Debentures outstanding at any time are all the Debentures authenticated
by the Trustee except for those canceled by it, those delivered to it for
cancellation, those
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mutilated, destroyed, lost or stolen Debentures referred to in Section 2.09
hereof, those redeemed by the Company pursuant to Article 3 hereof, and those
described in this Section 2.10 as not outstanding. A Debenture does not cease to
be outstanding because the Company or a Subsidiary or Affiliate thereof holds
the Debenture; provided, however, that in determining whether the Holders of the
requisite principal amount of Debentures have given or concurred in any request,
demand, authorization, direction, notice, consent or waiver hereunder,
Debentures actually known by the Trustee to be owned by the Company or a
Subsidiary or Affiliate (other than any Trust so long as any of the Trust
Preferred Securities of such Trust are outstanding) shall be disregarded and
deemed not to be outstanding.
(b) Subject to the foregoing, only Debentures outstanding at the time of
such determination shall be considered in any such determination (including
determinations pursuant to Articles 3, 6 and 9).
(c) If a Debenture is replaced pursuant to Section 2.09 hereof, it ceases
to be outstanding unless the Trustee receives proof satisfactory to it that the
replaced Debenture is held by a bona fide purchaser.
(d) If the Paying Agent (other than the Company) holds, in accordance with
this Junior Indenture, at the Stated Maturity Date or on a Redemption Date,
money sufficient to pay the Debentures payable on that date, then immediately on
the Stated Maturity Date or such Redemption Date, as the case may be, such
Debentures shall cease to be outstanding, and interest, if any, on such
Debentures shall cease to accrue.
SECTION 2.11. Temporary Debentures.
(a) The Company may execute temporary Debentures, and upon the Company's
Order, the Trustee shall authenticate and make such temporary Debentures
available for delivery. Temporary Debentures shall be printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
in the same series and principal amount and of like tenor as the definitive
Debentures in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the Officers of the
Company executing such Debentures may determine, as conclusively evidenced by
their execution of such Debentures.
(b) After the preparation of definitive Debentures, the temporary
Debentures shall be exchangeable for definitive Debentures of the same series
upon surrender of the temporary Debentures at the office or agency of the
Company designated for such purpose pursuant to Section 2.05 hereof, without
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charge to the Holders thereof. Upon surrender for cancellation of any one or
more temporary Debentures, the Company shall execute a like principal amount of
definitive Debentures of the same series of authorized denominations, and
the Trustee, upon receipt of a Company Order, shall authenticate and make such
Debentures available for delivery in exchange therefor. Until so exchanged, the
temporary Debentures shall in all respects be entitled to the same benefits
under this Junior Indenture as definitive Debentures.
SECTION 2.12. Book-Entry System.
(a) In order to utilize a book-entry-only system for all or any portion of
the Debentures of any series, all or a portion of the Debentures of any series
may be issued in the form of one or more fully registered Debentures of the same
series for the aggregate principal amount of such Debentures of each Issue Date,
interest rate and Stated Maturity Date (a "Global Debenture"), which Global
Debenture shall be registered in the name of a depository (the "Depository")
selected by the Company or in the name of such Depository's nominee. Each
Global Debenture shall be delivered by the Trustee to the Depository or pursuant
to the Depository's instruction and shall bear a legend substantially to the
following effect: "Except as otherwise provided in Section 2.12 of the Junior
Indenture, this Debenture may be transferred, in whole but not in part, only to
another nominee of the Depository or to a successor Depository or to a nominee
of such successor Depository."
(b) Notwithstanding any other provision of this Section 2.12 or of Section
2.08 hereof, a Global Debenture may be transferred in whole but not in part and
in the manner provided in Section 2.08 hereof only to a nominee of such
Depository or by a nominee of such Depository to such Depository or another
nominee of such Depository or by the Depository or any nominee to a successor
Depository or any nominee of such successor.
(c) So long as the Depository for a Global Debenture, or its nominee, is
the registered owner of such Global Debenture, such Depository or such nominee,
as the case may be, shall be considered the sole owner or Holder of the
Debenture represented by such Global Debenture for all purposes under this
Indenture. Except as provided below, owners of beneficial interests in a Global
Debenture shall not be entitled to have any of the individual Debentures of the
series represented by such Global Debenture registered in their names, shall not
receive or be entitled to receive physical delivery of any such Debenture in
definitive form and shall not be considered the owners or Holders thereof under
this Indenture.
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(d) Payments of principal of and premium, if any, and interest on
individual Debentures represented by a Global Debenture registered in the name
of a Depository or its nominee shall be made to the Depository or its nominee,
as the case may be, as the registered owner of the Global Debenture representing
such Debentures. None of the Company, the Trustee, any Paying Agent or the
Registrar for such Debenture shall have any responsibility or liability for any
aspect of the records relating to or payments made on account of beneficial
ownership interests of the Global Debenture representing such Debenture or for
maintaining, supervising or reviewing any records relating to such beneficial
ownership interests.
(e) If (i) at any time the Depository for Global Debentures of any series
of Debentures notifies the Company that it is unwilling or unable to continue as
Depository for such Global Debentures and no successor depository shall have
been appointed within 90 days after the Company receives such notice, or if at
any time the Depository ceases to be a clearing agency registered under the
Exchange Act or other applicable statute or regulation at a time when the
Depository is required to be so registered to act as such depository, (ii) the
Company determines in its sole discretion, that the Debentures of any series
shall no longer be represented by one or more Global Debentures and delivers to
the Trustee an Officer's Certificate evidencing such determination, or (iii) an
Event of Default with respect to such Global Debenture occurs and is continuing,
then the provisions of this Section 2.12 shall no longer apply to the Debentures
of such series. In such event, the Company will execute and the Trustee, upon
receipt of an Officer's Certificate evidencing such determination by the
Company, will authenticate and deliver Debentures of such series and of like
tenor in definitive registered form, in authorized denominations, and in
aggregate principal amount equal to the principal amount of the Global
Debentures of such series in exchange for such Global Debentures. Upon the
exchange of Global Debentures for such Debentures in definitive registered form
without coupons, in authorized denominations, the Global Debentures shall be
cancelled by the Trustee. Such Debentures in definitive registered form issued
in exchange for Global Debentures pursuant to this Section 2.12 shall be
registered in such names and in such authorized denominations as the Depository,
pursuant to instructions from its direct or indirect participants or otherwise,
shall instruct the Trustee. The Trustee shall deliver such Debentures to the
Persons in whose names such Debentures are so registered.
(f) Members of or participants in the Depository shall have no rights under
this Junior Indenture with respect to any
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Global Debenture held on their behalf by the Depository, and such Depository or
its nominee, as the case may be, may be treated by the Company, the Trustee, and
any agent of the Company or the Trustee as the Holder of such Global Debentures
for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Company, the Trustee, or any agent of the Company or the Trustee,
from giving effect to any written certification, proxy or other authorization
furnished by the Depository or impair, as between the Depository and its members
or participants, the operation of customary practices governing exercise of the
rights of a Holder of any Debenture, including without limitation the granting
of proxies or other authorization of participants to give or take any request,
demand, authorization, direction, notice, consent, waiver or other action which
a Holder is entitled to give or take under this Junior Indenture.
SECTION 2.13. Cancellation.
All Debentures surrendered for payment, redemption by the Company pursuant
to Article 3 hereof or registration of transfer or exchange shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly canceled by the Trustee. The Company may at any time
deliver to the Trustee for cancellation any Debentures previously authenticated
and made available for delivery hereunder which the Company may have acquired in
any manner whatsoever, and all Debentures so delivered shall be promptly
canceled by the Trustee. The Company may not reissue or issue new Debentures to
replace Debentures it has paid or delivered to the Trustee for cancellation. No
Debentures shall be authenticated in lieu of or in exchange for any Debentures
canceled as provided in this Section 2.13, except as expressly permitted by this
Junior Indenture. All canceled Debentures held by the Trustee shall be returned
by the Trustee to the Company.
SECTION 2.14. CUSIP Numbers.
The Company in issuing any series of Debentures may use "CUSIP" numbers (if
then generally in use), and, if so, the Trustee shall use "CUSIP" numbers in
notices of redemption as a convenience to Holders; provided that any such notice
may state that no representation is made as to the correctness of such numbers
either as printed on such series of Debentures or as contained in any notice of
redemption and that reliance may be placed only on the other identification
numbers printed on such series of Debentures, and any such redemption shall not
be affected by any defect in or omission of such numbers. The Company will
promptly notify the Trustee of any change in the CUSIP numbers.
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ARTICLE 3. REDEMPTION
SECTION 3.01. Redemption; Notice to Trustee.
(a) At the option of the Company, the Series 1998 Debentures shall be
redeemable prior to maturity (i) at any time on or after December 15, 2003, in
whole or in part, and (ii) if a Special Event shall occur and be continuing, in
whole (but not in part), in each case at 100% of the principal amount thereof
plus accrued and unpaid interest to the Redemption Date. The Series 1998
Debentures shall not be subject to any sinking fund. Series 1998 Debentures in
denominations larger than $25 may be redeemed in part but only in integral
multiples of $25. A "Special Event" shall mean either a "Tax Event" or an
"Investment Company Event." A "Tax Event" shall mean that the Company or Trust
II shall have received an opinion of counsel (which may be regular counsel to
the Company or an Affiliate, but not an employee thereof and which must be
acceptable to Property Trustee II), rendered by a law firm having a recognized
federal and state tax and securities practice, to the effect that, as a result
of a Tax Action there is more than an insubstantial risk that (i) Trust II is,
or will be within 90 days of the date of said opinion, subject to United States
federal income tax with respect to income received or accrued on the Series 1998
Debentures, (ii) interest payable by the Company to Trust II on the Series 1998
Debentures or by MECO or HELCO to Trust II on its Subsidiary Debentures is not,
or within 90 days of the date of said opinion will not be, deductible by such
company, in whole or in part, for United States federal income tax purposes or
(iii) Trust II is, or will be within 90 days of the date of said opinion,
subject to more than a de minimis amount of other taxes, duties, or other
governmental charges. A "Tax Action" includes (i) any amendment to or change
(including any announced prospective change) in the laws (or any regulations
thereunder) of the United States, or of any State or the District of Columbia,
or of any political subdivision or taxing authority thereof or therein, (ii) any
administrative pronouncement or action that represents an official position
(including a clarification of an official position) of the governmental
authority or regulatory body making such administrative pronouncement or taking
such action or (iii) any judicial decision interpreting, clarifying or applying
such laws or regulation, in each such case that occurs or becomes effective on
or after the date of original issuance of the Trust II Preferred Securities. An
"Investment Company Event" shall mean the receipt by the Company or Trust II of
an opinion of counsel, rendered by a law firm having a recognized federal
securities practice, to the effect that, as a result of the occurrence of a
change in law or regulation or a change (including a prospective change) in
interpretation of application of law or regulation by any legislative body,
court, governmental agency or regulatory authority (a "Change in 1940 Act Law"),
there is more than an insubstantial risk that Trust II is or will be considered
an "investment company" that is required to be registered under the Investment
Company Act of 1940, as amended, which Change in 1940 Act Law becomes effective
on or after the date of original issuance of the Trust II Preferred Securities.
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application of law or regulation by any legislative body, court, governmental
agency or regulatory authority (a "Change in 1940 Act Law"), there is more than
an insubstantial risk that Trust II is or will be considered an "investment
company" that is required to be registered under the Investment Company Act of
1940, as amended, which Change in 1940 Act Law becomes effective on or after the
date of original issuance of the Trust I Preferred Securities.
(b) The redemption terms for any additional series of Debentures shall be
as specified in an indenture supplemental hereto or in an Officer's Certificate
authorized by a Board Resolution creating such series of Debentures.
(c) If any or all of the Debentures are to be redeemed pursuant to Section
3.01(a) or 3.01(b) hereof, the Company shall deliver to the Trustee at least 45
days prior to the Redemption Date a Company Order specifying the series and
principal amount of Debentures to be redeemed and the Redemption Date and
Redemption Price for such Debentures. Such Company Order shall be accompanied
by a Board Resolution authorizing such redemption. If the Debentures of a
series are held by a Trust, the Company shall also deliver a copy of such
Company Order to the Property Trustee for such Trust.
SECTION 3.02. Selection of Debentures to be Redeemed.
If less than all the outstanding Debentures of a series are to be redeemed
at any time, the Trustee shall select the Debentures of such series to be
redeemed by lot or by any other method the Trustee considers fair and
appropriate. The Trustee shall make the selection at least 30 but not more than
60 days before the Redemption Date from outstanding Debentures of such series
not previously called for redemption. Provisions of this Junior Indenture that
apply to Debentures called for redemption also apply to portions of Debentures
called for redemption. The Trustee shall notify the Company promptly of the
Debentures or portions of Debentures to be redeemed.
SECTION 3.03. Notice of Redemption.
(a) At least 30 days but not more than 60 days before the Redemption Date,
the Trustee, in the Company's name and at the Company's expense, shall mail or
cause to be mailed a notice of redemption by first-class mail, postage prepaid,
to each Holder of Debentures to be redeemed at such Holder's last address as it
appears in the Securities Register.
(b) The notice of redemption shall identify the Debentures to be redeemed,
the provision of the Debentures or
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this Junior Indenture pursuant to which the Debentures called for redemption are
being redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) the name and address of the Paying Agent;
(4) that payment of the Redemption Price of Debentures called for
redemption will be made only upon surrender of such Debentures to the
Paying Agent;
(5) if fewer than all the outstanding Debentures of any series are to
be redeemed, the identification and principal amounts of the particular
Debentures to be redeemed and that, on and after the Redemption Date, upon
surrender of such Debentures, a new Debenture or Debentures of the same
series and of like tenor and in a principal amount equal to the unredeemed
portion thereof will be issued; and
(6) that, unless the Company defaults in paying the Redemption Price
of the Debentures called for redemption, plus accrued interest thereon to
the Redemption Date, interest will cease to accrue on such Debentures on
and after the Redemption Date.
(c) Any notice of redemption given in the manner provided herein shall be
conclusively presumed to have been given, whether or not such notice is actually
received. Failure to mail any notice or defect in the mailed notice or the
mailing thereof in respect of any Debenture shall not affect the validity of the
redemption of any other Debenture.
SECTION 3.04. Effect of Notice of Redemption.
After notice of redemption has been given, Debentures called for redemption
shall become due and payable on the Redemption Date and at the Redemption Price
and from and after the Redemption Date (unless the Company shall default in the
payment of the Redemption Price and accrued interest, in which event interest
shall accrue at the same rate until the Redemption Price is paid in full), such
Debentures shall cease to bear interest. Upon the later of the Redemption Date
and the date such Debentures are surrendered to the Paying Agent, such
Debentures shall be paid at the Redemption Price, plus accrued interest to the
Redemption Date, provided that installments of interest on Debentures with an
Interest Payment Date which is on or prior to the Redemption Date shall be
payable to the Holders of such Debentures, or one or more Predecessor
Debentures, registered as such at the close
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of business on the Regular Record Dates therefor according to their terms and
provisions.
SECTION 3.05. Deposit of Redemption Price.
On or prior to the Redemption Date, the Company shall deposit with the
Paying Agent (or if the Company or an Affiliate is the Paying Agent, shall
segregate and hold in trust or cause such Affiliate to segregate and hold in
trust) money sufficient to pay the Redemption Price of, and accrued interest on,
all Debentures to be redeemed on that Redemption Date. The Paying Agent shall
return to the Company any money in excess of the amount sufficient to pay the
Redemption Price of, and accrued interest on, all Debentures to be redeemed.
SECTION 3.06. Debentures Redeemed in Part.
Upon surrender of a Debenture that is redeemed in part, the Trustee shall
authenticate for the Holder a new Debenture of the same series and in a
principal amount equal to the unredeemed portion of such Debenture.
ARTICLE 4. COVENANTS
SECTION 4.01. Payment of Debentures.
(a) The Company shall pay the principal of and premium, if any, and
interest (including interest accruing during an Extension Period and/or on or
after the filing of a petition in bankruptcy or reorganization relating to the
Company, whether or not a claim for post-filing interest is allowed in such
proceeding) on the Debentures on or prior to the dates and in the manner
provided in such Debentures or pursuant to this Junior Indenture. An installment
of principal, premium, if any, or interest shall be considered paid on the
applicable due date if on such date the Trustee or the Paying Agent holds, in
accordance with this Junior Indenture, money sufficient to pay all of such
installment then due. With respect to any Debenture, the Company shall pay
interest on overdue principal and interest on overdue installments of interest
(including interest accruing during an Extension Period and/or on or after the
filing of a petition in bankruptcy or reorganization relating to the Company,
whether or not a claim for post-filing interest is allowed in such proceeding),
to the extent lawful, at the rate per annum borne by such Debenture, compounded
quarterly. Interest on overdue interest shall accrue from the date such amounts
become overdue.
(b) Notwithstanding the provisions of Section 4.01(a) hereof or any other
provision herein to the contrary, the
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Company shall have the right in its sole and absolute discretion at any time and
from time to time while the Debentures of any series are outstanding, so long as
no Event of Default with respect to such series of Debentures has occurred and
is continuing, to defer payments of interest by extending the interest payment
period for such series of Debentures for the Extension Period specified pursuant
to Section 2.01 hereof for such series of Debentures, provided that such
Extension Period shall not extend beyond the Stated Maturity Date or Redemption
Date of any Debenture of such series, and provided further that at the end of
each Extension Period the Company shall pay all amounts then due on any Interest
Payment Date, including interest then accrued and unpaid (together with interest
thereon to the extent permitted by applicable law at the rate per annum provided
for such interest for such series of Debentures). Prior to the termination of an
Extension Period, the Company may shorten or may further extend the interest
payment period for such series of Debentures, provided that any such further
extension of the Extension Period, together with all previous extensions
thereof, may not exceed the maximum duration of the Extension Period for such
series of Debentures specified pursuant to Section 2.01 hereof or extend beyond
the Stated Maturity Date or Redemption Date of any Debenture of such series. The
Company shall give the Trustee notice of the Company's election to begin an
Extension Period for any series of Debentures and any shortening or extension
thereof at least one Business Day prior to the date the notice of the record or
payment date of the related distribution on the Trust Preferred Securities
issued by any Trust which is the Holder of the Debentures of such series or the
date payment of interest on such Debentures is required to be given to any
national securities exchange on which such Trust Preferred Securities or
Debentures are then listed or other applicable self-regulatory organization,
but in any event not less than two Business Days prior to the Record Date fixed
by the Company for the payment of such interest. The Company shall give or cause
the Trustee to give notice (a form of which shall be provided by the Company to
the Trustee) of the Company's election to begin an Extension Period to the
Holders by first-class mail, postage prepaid. Upon the termination of any such
Extension Period and the payment of all amounts then due on any Interest Payment
Date, the Company may elect to begin a new Extension Period subject to the
requirements set forth herein.
SECTION 4.02. Prohibition on Distributions, Etc.
The Company shall not, either directly or indirectly through a Subsidiary,
(i) declare or pay any dividends or distributions on, or redeem, purchase,
acquire or make a liquidation payment with respect to, any of its Capital Stock,
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(ii) make any payment of principal, interest or premium, if any, on or repay,
repurchase or redeem any of its debt securities (including other Debentures)
that rank pari passu with or junior in interest to any series of Debentures, or
(iii) make any guarantee payments with respect to any guarantee issued by the
Company if such guarantee ranks pari passu with or junior in interest to such
series of Debentures (other than (a) dividends or distributions in shares of, or
options, warrants or rights to subscribe for or purchase shares of its common
stock and exchanges or conversions of common stock of one class for common stock
of another class, (b) payments by the Company under any Trust Guarantee
Agreement and the Subsidiary Guarantees, and (c) purchases by the Company of its
common stock required to prevent the loss or secure the renewal or reinstatement
of any government license or franchise held by the Company or any of the
Subsidiaries) if at such time (i) there shall have occurred any event of which
the Company has actual knowledge that (a) with the giving of notice or the lapse
of time, or both, would constitute an Event of Default with respect to such
series of Debentures and (b) in respect of which the Company shall not have
taken reasonable steps to cure in accordance with this Junior Indenture, (ii)
the Company shall be in default with respect to its payment of any obligations
under any Trust Guarantee Agreement or (iii) the Company shall have given notice
of its election of an Extension Period for such Debentures or MECO or HELCO
shall have given notice of its election of an "Extension Period" with respect to
its respective Subsidiary Debentures pursuant to the MECO Indenture or the HELCO
Indenture, respectively, and, in each case, shall not have rescinded such
notice, or such Extension Period, or any extension thereof, shall be continuing.
SECTION 4.03. SEC Reports.
(a) The Company shall file with the Trustee, within 15 days after it files
them with the SEC, copies of its annual report and of the information, documents
and other reports (or copies of such portions of any of the foregoing as the SEC
may by rules and regulations prescribe) which the Company is required to file
with the SEC pursuant to Section 13 or 15(d) of the Exchange Act. If the
Company is not subject to the reporting requirements of Section 13 or 15(d) of
the Exchange Act, the Company shall file with the Trustee such information,
documents and other reports (or copies of such portions of any of the foregoing
as the SEC may by rules and regulations prescribe) which are specified in
Sections 13 or 15(d) of the Exchange Act. The Company shall also comply with
the provisions of Section 314(a) of the TIA.
(b) Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the
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Trustee's receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained
therein, including the Company's compliance with any of its covenants hereunder
(as to which the Trustee is entitled to rely exclusively on Officer's
Certificates).
SECTION 4.04. Compliance Certificates.
(a) The Company shall deliver to the Trustee, within 90 days after the end
of each of the Company's fiscal years, commencing with the Company's fiscal year
ending December 31, 1998, an Officer's Certificate stating whether or not the
signer knows of any Default or Event of Default. Such certificate shall contain
a certification from the principal executive officer, principal financial
officer or principal accounting officer of the Company as to his or her
knowledge of the Company's compliance with all conditions and covenants under
this Junior Indenture. For purposes of this Section 4.04(a), such compliance
shall be determined without regard to any period of grace or requirement of
notice provided under this Junior Indenture. If such Officer does know of such
a Default or Event of Default, the Officer's Certificate shall describe any such
Default or Event of Default, and its status. Such Officer's Certificate need
not comply with Sections 11.04 and 11.05 hereof.
(b) The Company shall deliver to the Trustee any information reasonably
requested by the Trustee in connection with the compliance by the Trustee or the
Company with the TIA.
(c) The Company shall deliver to the Trustee, as soon as possible and in
any event within five days after the Company becomes aware of the occurrence of
any Event of Default or an event which, with notice or the lapse of time or
both, would constitute an Event of Default, an Officer's Certificate setting
forth the details of such Event of Default or default and the action that the
Company proposes to take with respect thereto.
SECTION 4.05. Further Instruments and Acts.
Upon request of the Trustee, the Company shall execute and deliver such
further instruments and do such further acts as may be reasonably necessary or
proper to carry out more effectively the purposes of this Junior Indenture.
SECTION 4.06. Additional Sums.
If and so long as a Trust is the Holder of all Debentures of a particular
series, the Company shall pay to such Trust
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such Additional Sums on the Debentures of such series in proportion to the
amount of assets of such Trust made up by the Debentures of such series.
SECTION 4.07. Payment of Expenses of Trust.
If and so long as a Trust is the Holder of all Debentures of a particular
series, the Company covenants for the benefit of the Holders of such Debentures
to pay all of the obligations, costs and expenses of such Trust in accordance
with the terms of the trust agreement for said Trust and to pay the taxes of
said Trust (if any) in accordance with the terms of said trust agreement in
order to permit said Trust to make distributions on and redemptions of the
applicable Trust Preferred Securities in accordance with the terms of said trust
agreement.
SECTION 4.08. Ownership of Trust Common Securities.
If and so long as a Trust is the Holder of all Debentures of a particular
series, the Company shall (i) maintain, directly or indirectly, 100% ownership
of said Trust's Trust Common Securities, provided that certain successors to
the Company which are permitted as provided below may succeed to the Company's
ownership of said Trust Common Securities, (ii) not voluntarily dissolve, wind-
up or liquidate said Trust, except (a) in connection with a distribution of said
Debentures to the holders of said Trust's Trust Preferred Securities in
liquidation of said Trust or (b) in connection with certain mergers,
consolidations or amalgamations as permitted by said Trust's trust agreement,
and (iii) use its reasonable efforts, consistent with the terms and provisions
of said trust agreement, to cause said Trust to remain classified as a grantor
trust and not as an association taxable as a corporation for United States
federal income tax purposes.
ARTICLE 5. SUCCESSOR CORPORATION
SECTION 5.01. When the Company May Merge, Etc.
(a) The Company may not consolidate with or merge with or into, or sell,
convey, transfer or lease its properties and assets as an entirety or
substantially as an entirety (either in one transaction or a series of
transactions) to any Person and no Person shall consolidate or merge with or
into the Company, or sell, convey, transfer or lease its properties and assets
as an entirety or substantially as an entirety (either in one transaction or a
series of transactions) to the Company unless:
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(1) the Person formed by or surviving such consolidation or merger or
to which such sale, conveyance, transfer or lease shall have been made (the
"Successor") if other than the Company, (a) is organized under the laws of
the United States of America or any State thereof or the District of
Columbia, and (b) shall expressly assume by a supplemental Junior
Indenture, executed and delivered to the Trustee, in form satisfactory to
the Trustee, all the obligations of the Company under the Debentures and
this Junior Indenture;
(2) immediately prior to and after giving effect to such transaction
(and treating any Indebtedness which becomes an obligation of the Successor
Person or any Subsidiary as a result of such transaction as having been
incurred by such Person or such Subsidiary at the time of such
transaction), no Default or Event of Default, and no event which, after
notice or lapse of time or both, would become an Event of Default, shall
have occurred and be continuing;
(3) such transaction is permitted under each applicable Trust
Guarantee Agreement and does not give rise to a breach or violation of any
such Trust Guarantee Agreement; and
(4) the Company delivers to the Trustee an Officer's Certificate and
an Opinion of Counsel, each stating that such consolidation, merger, sale,
conveyance, transfer or lease and such supplemental Junior Indenture
complies with this Junior Indenture.
(b) The Successor will be the successor to the Company, and will be
substituted for, and may exercise every right and power and become the obligor
on the Debentures, with the same effect as if the Successor had been named as
the Company herein but, in the case of a sale, conveyance, transfer or lease of
all or substantially all of the assets of the Company, the predecessor Company
will not be released from its obligation to pay the principal of and premium, if
any, and interest on the Debentures.
ARTICLE 6. DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default.
(a) An "Event of Default" occurs with respect to the Debentures of any
series if one of the following shall have occurred and be continuing:
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(1) The Company defaults in the payment, when due and payable, of (a)
interest on any Debenture of that series and the default continues for a
period of 30 days; provided, that during an Extension Period for the
Debentures of that series, failure to pay interest on the Debentures of
that series shall not constitute a Default or Event of Default hereunder,
or (b) the principal of or premium, if any, on any Debentures of that
series when the same becomes due and payable on the Stated Maturity Date
thereof, upon acceleration, on any Redemption Date, or otherwise;
(2) The Company defaults in the performance of or fails to comply
with, in a material respect, any of its other covenants or agreements in
the Debentures of that series or this Junior Indenture or in any indenture
supplemental hereto or Officer's Certificate authorized by a Board
Resolution under which the Debentures of that series may have been issued
(other than a covenant or agreement which has been expressly included in
this Indenture solely for the benefit of one or more series of Debentures
other than such series) and such failure continues for 90 days after
receipt by the Company of a written "Notice of Default", provided that such
90-day period shall be automatically extended if corrective action is
initiated by the Company within such period and is being diligently
pursued;
(3) The Company, pursuant to or within the meaning of any Bankruptcy
Law:
(A) commences a voluntary case or proceeding;
(B) consents to the entry of an order for relief against it in an
involuntary case or proceeding;
(C) consents to the appointment of a Custodian of it or for all
or substantially all of its property, and such Custodian is not
discharged within 60 days;
(D) makes a general assignment for the benefit of its creditors;
or
(E) admits in writing its inability to pay its debts generally as
they become due; or
(4) A court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
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(A) is for relief against the Company in an involuntary case or
proceeding;
(B) appoints a Custodian of the Company for all or substantially
all of its properties;
(C) orders the liquidation of the Company; and
(D) in each case the order or decree remains unstayed and in
effect for 60 days.
(b) The foregoing will constitute an Event of Default whatever the reason
for any such Event of Default and whether it is voluntary or involuntary or is
effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body.
(c) The term "Bankruptcy Law" means Title 11 of the United States Code, or
any similar federal or state law for the relief of debtors. "Custodian" means
any receiver, trustee, assignee, liquidator, sequestrator, custodian or similar
official under any Bankruptcy Law.
(d) A Default under clause (2) above is not an Event of Default until (i)
the Trustee provides a written "Notice of Default" to the Company or the Holders
of at least 25% in aggregate principal amount of the Debentures of that series
at the time outstanding or, if that series of Debentures is held by a Trust, the
holders of at least 25% in aggregate liquidation preference of the outstanding
Trust Preferred Securities of that Trust, provide a written "Notice of Default"
to the Company and the Trustee and (ii) the Company does not cure such Default
within the time specified in clause (2) above (including any automatic
extensions thereof) after receipt of such notice. Any such notice must be in
writing, specify the Default, demand that it be remedied and state that such
notice is a "Notice of Default."
SECTION 6.02. Acceleration.
(a) If any Event of Default with respect to the Debentures of any series
other than an Event of Default under clause (3) or (4) of Section 6.01 hereof
occurs and is continuing, the Trustee or the Holders of at least 25% in
aggregate
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principal amount of the Debentures of that series then outstanding may
declare the principal of all the Debentures of that series due and payable,
provided that in the case of a series of Debentures then held by a Trust, if
upon an Event of Default with respect to the Debentures of that series the
Trustee has, or the Holders of at least 25% in aggregate principal amount of the
Debentures of that series have, failed to declare the principal of the
Debentures of that series to be immediately due and payable, the holders of at
least 25% in aggregate liquidation preference of the outstanding Trust Preferred
Securities of that Trust shall have such right by a notice in writing to the
Company and the Trustee. If an Event of Default specified in clause (3) or (4)
of Section 6.01 hereof occurs, the principal of and interest on all the
Debentures shall ipso facto become and be immediately due and payable without
any declaration or other act on the part of the Trustee or any Debentureholders.
Upon such an acceleration, such principal, together with all interest accrued
thereon, shall be due and payable immediately.
(b) The Holders of at least a majority in aggregate principal amount of the
Debentures of that series at the time outstanding, in each case, by notice to
the Trustee, may rescind and annul such an acceleration and waive its
consequences if the rescission, annulment and waiver would not conflict with any
judgment or decree and if all existing Events of Default with respect to such
series of Debentures have been cured or waived, except nonpayment of principal
that has become due solely because of acceleration, and a sum sufficient to pay
all matured installments of interest and principal due otherwise than by
acceleration has been deposited with the Trustee; provided that if the principal
of a series of Debentures has been declared due and payable by the holders of
the Trust Preferred Securities of a Trust, no rescission of acceleration will be
effective unless consented to by the holders of at least a majority in aggregate
liquidation preference of the Trust Preferred Securities of that Trust and
further provided that should the Holders of such Debentures fail to rescind or
annul such declaration and waive such default, the holders of a majority in
aggregate liquidation preference of the Trust Preferred Securities of a Trust
that holds such Debentures may make such rescission, annulment and waiver. No
such rescission shall affect any subsequent Default or impair any right
consequent thereto.
SECTION 6.03. Other Remedies.
(a) If an Event of Default occurs and is continuing, the Trustee may, in
its own name or as trustee of an express trust, institute, pursue and prosecute
any proceeding, including, without limitation, any action at law or suit in
equity or other judicial or administrative proceeding to collect the payment of
principal of or premium, if any, or interest on the Debentures of the series
that is in default, to enforce the performance of any provision of the
Debentures of that series or this Junior Indenture or to obtain any other
available remedy.
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(b) The Trustee may maintain a proceeding even if it does not possess any
of the Debentures or does not produce any of the Debentures in the proceeding.
A delay or omission by the Trustee, any Debentureholder or the holders of Trust
Preferred Securities in exercising any right or remedy accruing upon an Event of
Default shall not impair such right or remedy or constitute a waiver of, or
acquiescence in, such Event of Default. No remedy is exclusive of any other
remedy. All available remedies are cumulative.
SECTION 6.04. Waiver of Past Defaults.
If a Default or Event of Default with respect to a series of Debentures has
occurred and is continuing, the Holders of at least a majority in aggregate
principal amount of the Debentures of that series at the time outstanding, or,
if that series of Debentures is held by a Trust, the holders of at least a
majority in aggregate liquidation preference of the Trust Preferred Securities
of that Trust, in each case by notice to the Trustee and the Company, may waive
an existing Default or Event of Default and its consequences except a Default or
Event of Default in the payment of the principal of or premium, if any, or
interest on any Debenture of that series (unless such default has been cured and
a sum sufficient to pay all matured installments of interest and principal due
otherwise than by acceleration has been deposited with the Trustee) or a default
in respect of a covenant or provisions which under this Indenture cannot be
modified or amended without the consent of the Holder of each of such
outstanding Debentures. When a Default or Event of Default is waived, it is
deemed cured and shall cease to exist, but no such waiver shall extend to any
subsequent or other Default or Event of Default or impair any consequent right.
SECTION 6.05. Control by Majority.
The Holders of a majority in aggregate principal amount of the Debentures
of each series affected (with each such series voting as a class) may direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee or of exercising any trust or power conferred on the Trustee. If
the Debentures of such series are held by a Trust and the Trustee and the
trustee of such Trust have failed to so direct or to so exercise for 60 days,
the holders of at least 25% in aggregate liquidation preference of the
outstanding Trust Preferred Securities of that Trust may institute proceedings
to so direct or so exercise. However, the Trustee may refuse to follow any
direction that conflicts with law or this Junior Indenture or that the Trustee
determines in good faith is unduly prejudicial to the rights of other
Debentureholders or may involve the Trustee in personal
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liability. The Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction, including withholding notice to
the Holders of the Debentures of such series of continuing default (except in
the payment of the principal of (other than any mandatory sinking fund payment)
or premium, if any, or interest on any Debentures) if the Trustee considers it
in the interest of the Holders of the Debentures to do so.
SECTION 6.06. Limitation on Suits.
(a) Except as provided in Sections 6.07 and 6.13 hereof, no Holder of
Debentures and no holder of Trust Preferred Securities of a Trust which is the
Holder of all the Debentures of such series may pursue any remedy with respect
to this Junior Indenture or the Debentures of such series unless:
(1) the Holders of Debentures or the holders of such Trust Preferred
Securities give to the Trustee written notice stating that an Event of
Default with respect to the corresponding Debentures is continuing;
(2) the Holders of at least 25% in aggregate principal amount of the
Debentures of that series or the holders of at least 25% in aggregate
liquidation preference of such Trust Preferred Securities make a written
request to the Trustee to pursue a remedy;
(3) the Holders of Debentures or the holders of such Trust Preferred
Securities provide to the Trustee reasonable security and indemnity against
any loss, liability or expense satisfactory to the Trustee;
(4) the Trustee does not comply with the request within 60 days after
receipt of the notice, the request and the offer of security and indemnity;
and
(5) during such 60 day period, the Holders of at least a majority in
aggregate principal amount of the Debentures of that series or the holders
of at least a majority in aggregate liquidation preference of such Trust
Preferred Securities do not give the Trustee a direction inconsistent with
the request.
In addition, no holder of Trust Preferred Securities of the Trust which is the
Holder of that series of Debentures may pursue any remedy with respect to this
Junior Indenture or the Debentures unless the above conditions have been
complied with and the Property Trustee for such Trust has also failed to act for
60 days. In such a case, the Holders of at least 25% in aggregate liquidation
preference of the such outstanding Trust
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Preferred Securities may institute proceedings to pursue a remedy provided for
herein.
(b) A Holder of Debentures or a holder of Trust Preferred Securities may
not use this Junior Indenture to prejudice the rights of another Debentureholder
or a holder of Trust Preferred Securities or to obtain a preference or priority
over another Debentureholder or holder of Trust Preferred Securities.
SECTION 6.07. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Junior Indenture, the right of
any Holder to receive payment of the principal of and premium (if any) or
interest on the Debentures held by such Holder, on or after the respective due
dates expressed in the Debentures (in the case of interest, as the same may be
extended pursuant to Section 4.01(b) hereof) or any Redemption Date, is absolute
and unconditional and such right and the right to bring suit for the enforcement
of any such payment on or after such respective dates shall not be impaired or
affected adversely without the consent of such Holder.
SECTION 6.08. Collection Suit by the Trustee.
If an Event of Default described in Section 6.01(1) hereof occurs and is
continuing, the Trustee may recover judgment in its own name and as trustee of
an express trust against the Company or any obligor on the Debentures for the
whole amount owing with respect to the Debentures and the amounts provided for
in Section 7.07 hereof.
SECTION 6.09. The Trustee May File Proofs of Claim.
(a) In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or its properties or assets, the
Trustee shall be entitled and empowered, by intervention in such proceeding or
otherwise:
(1) to file and prove a claim for the whole amount of the principal of
and premium, if any, and interest on the Debentures and to file such other
papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and
counsel) and of the Holders allowed in such judicial proceeding; and
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(2) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same; and any
Custodian in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the
Holders, to pay the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel, and any other amounts due the Trustee under Section
7.07 hereof.
(b) Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Debentures
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 6.10. Priorities.
(a) If the Trustee collects any money pursuant to this Article 6, it shall,
subject to Article 10 hereof, pay out the money in the following order:
FIRST: to the Trustee for amounts due under Section 7.07 hereof;
SECOND: to Holders of Debentures in respect of which or for the benefit
of which such money has been collected for amounts due and unpaid on such
Debentures for the principal amount, Redemption Price or interest, if any,
as the case may be, ratably, without preference or priority of any kind,
according to such amounts due and payable on such Debentures; and
THIRD: the balance, if any, to the Company.
(b) Except as otherwise set forth in the Debentures, the Trustee may fix a
Record Date and payment date for any payment to Debentureholders pursuant to
this Section 6.10.
SECTION 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this Junior
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party
litigant (other than the Trustee) in the suit of an undertaking to pay
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the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys' fees and expenses, against any party
litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section 6.11 does not apply
to a suit by the Trustee, a suit by a Holder of Debentures or holder of Trust
Preferred Securities pursuant to Section 6.07 hereof or a suit by Holders of
Debentures of more than 10% in aggregate principal amount of the Debentures of
any series or, if a series of Debentures is held by a Trust, the holders of more
than 10% in aggregate liquidation preference of the Trust Preferred Securities
of that Trust.
SECTION 6.12. Waiver of Stay; Extension or Usury Laws.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law or any usury or
other law wherever enacted, now or at any time hereafter in force, that would
prohibit or forgive the Company from paying all or any portion of the principal
of or premium, if any, or interest on the Debentures as contemplated herein or
affect the covenants or the performance by the Company of its obligations under
this Junior Indenture; and the Company (to the extent that it may lawfully do
so) hereby expressly waives all benefit or advantage of any such law, and
covenants that it will not hinder, delay or impede the execution of any power
herein granted to the Trustee, but will suffer and permit the execution of every
such power as though no such law had been enacted.
SECTION 6.13. Suits by Holders of Trust Preferred Securities.
Notwithstanding anything else contained herein, if an Event of Default has
occurred and is continuing and such event is attributable to the failure of the
Company to pay interest or principal on Debentures held by a Trust on the date
such interest or principal is otherwise payable, a holder of Trust Preferred
Securities of such Trust may institute a direct action for payment against the
Company after such respective due date and this Indenture may not be amended to
remove the foregoing right to bring such a direct action without the prior
written consent of all the Holders of such Trust Preferred Securities affected
thereby. Notwithstanding any payment made to such holder of Trust Preferred
Securities in connection with a direct action, the Company shall remain
obligated to pay the principal of, premium on, if any, or interest on the
Debentures held by such Trust or the relevant Property Trustee and shall be
subrogated to the rights of the holders of such Trust Preferred Securities with
respect to payments on such Trust
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Preferred Securities to the extent of any payments made by the Company to such
holder in any direct action.
ARTICLE 7. THE TRUSTEE
SECTION 7.01. Duties of the Trustee.
(a) If an Event of Default occurs and is continuing with respect to the
Debentures of any series, the Trustee shall exercise the rights and powers
vested in it by this Junior Indenture with respect to that series and use the
same degree of care and skill in its exercise as a prudent person would exercise
or use under the circumstances in the conduct of his or her own affairs.
(b) Except during the continuance of an Event of Default with respect to
the Debentures of any series, (i) the Trustee need perform only those duties
with respect to that series that are specifically set forth in this Junior
Indenture or the TIA and no others; and (ii) in the absence of bad faith on its
part, the Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of this Junior
Indenture. However, in the case of any certificates or opinions which by any
provision hereof are specifically required to be furnished to the Trustee, the
Trustee shall examine the certificates and opinions to determine whether or not
they conform to the requirements of this Junior Indenture.
(c) The Trustee may not be relieved from liability for its own negligent
action, its own negligent failure to act or its own willful misconduct, except
that:
(1) this Section 7.01(c) does not limit the effect of Section 7.01(b)
hereof;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Trust Officer unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05 hereof.
(d) Every provision of this Junior Indenture that in any way relates to the
Trustee is subject to Section 7.01(a), (b), (c) and (e) and Section 7.02 hereof.
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(e) The Trustee may refuse to perform any duty or exercise any right or
power or extend or risk its own funds or otherwise incur any financial liability
unless it receives security and indemnity reasonably satisfactory to it against
any loss, liability or expense (including reasonable counsel fees).
(f) Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. Except as otherwise
agreed in writing, the Trustee shall not be liable for interest on any money
held by it hereunder.
SECTION 7.02. Rights of the Trustee.
(a) The Trustee may rely on any document believed by it to be genuine and
to have been signed or presented by the proper person. The Trustee need not
investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officer's Certificate and an Opinion of Counsel. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance on
such Officer's Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible for the
misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith which it reasonably believes to be authorized or within its
rights or powers.
(e) The Trustee may consult with counsel of its selection and the advice of
such counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon.
(f) The Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Junior Indenture at the request or direction of
any of the Holders pursuant to this Junior Indenture, unless such Holders shall
have offered to the Trustee reasonable security and indemnity against the costs,
expenses and liabilities (including reasonable counsel fees) which might be
incurred by it in compliance with such request or direction.
(g) The Trustee shall not be deemed to have notice of any Event of Default
unless a Trust Officer of the Trustee has actual knowledge thereof or unless
written notice of any event
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that is in fact such a default is received by the Trustee at the principal
corporate trust office of the Trustee, and such notice references the applicable
series of Debentures and this Indenture.
SECTION 7.03. Individual Rights of the Trustee.
The Trustee in its individual or any other capacity may become the owner or
pledgee of Debentures and may otherwise deal with the Company or its Affiliates
with the same rights it would have if it were not Trustee. Any Paying Agent,
Registrar or co-Registrar may do the same with like rights. However, the
Trustee must comply with Sections 7.10 and 7.11 hereof.
SECTION 7.04. The Trustee's Disclaimer.
The Trustee makes no representation as to the validity or adequacy of this
Junior Indenture or the Debentures. The Trustee shall not be accountable for
the Company's use of the proceeds from the Debentures, and the Trustee shall not
be responsible for any statement in this Junior Indenture or the Debentures or
any report or certificate issued by the Company hereunder or any registration
statement relating to the Debentures (other than the Trustee's Certificate of
Authentication and the Trustee's Statement of Eligibility on Form T-1), or the
determination as to which beneficial owners are entitled to receive any notices
hereunder.
SECTION 7.05. Notice of Defaults.
If a Default occurs and is continuing with respect to the Debentures of any
series and if it is known to the Trustee, the Trustee shall mail to each Holder
of a Debenture of that series notice of the Default within 90 days after the
occurrence thereof unless such Default shall have been cured or waived. Except
in the case of a Default described in Section 6.01(1) hereof, the Trustee may
withhold such notice if and so long as a committee of Trust Officers in good
faith determines that the withholding of such notice is in the interests of the
Holders of the Debentures of that series. The Trustee shall not be charged with
knowledge of any Default (except in the case of a Default under Section 6.01(1)
hereof) unless a responsible Trust Officer assigned to the Corporate Trust
Department of the Trustee shall have actual knowledge of the Default. The second
sentence of this Section 7.05 shall be in lieu of the proviso to TIA Section
315(b). Said proviso is hereby expressly excluded from this Junior Indenture, as
permitted by the TIA.
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SECTION 7.06. Reports by Trustee to Holders.
(a) Within 60 days after each May 31, beginning with the May 31 next
following the date of this Junior Indenture, the Trustee shall mail to each
Debentureholder, and such other holders that have submitted their names to the
Trustee for such purpose, a brief report dated as of such May 31 in accordance
with and to the extent required under TIA Section 313.
(b) A copy of each report at the time of its mailing to Debentureholders
shall be filed with the Company, the SEC and any securities exchange on which
the Debentures are listed. The Company agrees to promptly notify the Trustee
whenever the Debentures become listed on any securities exchange and of any
listing thereof.
SECTION 7.07. Compensation and Indemnity.
(a) The Company agrees:
(1) to pay to the Trustee from time to time such compensation as shall
be agreed in writing between the Company and the Trustee for all services
rendered by it hereunder (which compensation, to the fullest extent
permitted by applicable law, shall not be limited by any provision of law
in regard to the compensation of a trustee of an express trust);
(2) to reimburse the Trustee upon its request for reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance
with any provision of this Junior Indenture (including the reasonable
compensation and the expenses, and advances of its agents and counsel,
provided that prior to any Event of Default, the Trustee shall only have
one counsel at the same time), including all reasonable expenses and
advances incurred or made by the Trustee in connection with any Event of
Default or any membership on any creditors' committee, except any such
expense or advance as may be attributable to its negligence, willful
misconduct or bad faith; and
(3) to indemnify the Trustee, its officers, directors and
shareholders, for, and to hold it harmless against, any and all loss,
liability, damage, claim or expense, including taxes (other than taxes
based on the income of the Trustee), incurred without negligence or willful
misconduct on its part, arising out of or in connection with the acceptance
or administration of this trust, including the costs and expenses of
defending itself against any claim or liability in connection with
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the exercise or performance of any of its powers or duties hereunder.
(b) Before, after or during an Event of Default with respect to the
Debentures of a series, the Trustee shall have a claim and lien prior to the
Debentures of that series as to all property and funds held by it hereunder for
any amount owing it for its fees and expenses or any predecessor Trustee
pursuant to this Section 7.07, except with respect to funds held by the Trustee
or any Paying Agent in trust for the payment of principal of or premium, if any,
or interest on particular Debentures pursuant to Section 2.06 or Section 8.01
hereof.
(c) The Company's payment obligations pursuant to this Section 7.07 are not
subject to Article 10 of this Junior Indenture and shall survive the discharge
of this Junior Indenture. When the Trustee renders services or incurs expenses
after the occurrence of a Default specified in Section 6.01 hereof, the
compensation for services and expenses are intended to constitute expenses of
administration under any Bankruptcy Law.
SECTION 7.08. Replacement of Trustee.
(a) The Trustee may resign at any time, by so notifying the Company in
writing at least 30 days prior to the date of the proposed resignation;
provided, however, no such resignation shall be effective until a successor
Trustee has accepted its appointment pursuant to this Section 7.08. The
Holders of at least a majority in aggregate principal amount of the Debentures
at the time outstanding may remove the Trustee by so notifying the Trustee in
writing and may appoint a successor Trustee, which shall be subject to the
consent of the Company unless an Event of Default has occurred and is
continuing. The Trustee shall resign if:
(1) the Trustee fails to comply with Section 7.10 hereof;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or public officer takes charge of the Trustee or its
property; or
(4) the Trustee otherwise becomes incapable to act.
If the Trustee resigns or is removed or if a vacancy exists in the office of
Trustee for any reason, the Company shall promptly appoint a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment to the
retiring Trustee and to the Company. Thereupon the resignation
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or removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Junior Indenture. The successor Trustee shall mail a notice of its succession to
Debentureholders. Subject to payment of all amounts owing to the Trustee under
Section 7.07 hereof and subject further to its lien under Section 7.07, the
retiring Trustee shall promptly transfer all property held by it as Trustee to
the successor Trustee. If a successor Trustee does not take office within 30
days after the retiring Trustee resigns or is removed, the Company, the
resigning Trustee or the Holders of at least a majority in aggregate principal
amount of the Debentures at the time outstanding may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(b) If the Trustee fails to comply with Section 7.10 hereof, any
Debentureholder may petition any court of competent jurisdiction for its removal
and the appointment of a successor Trustee.
SECTION 7.09. Successor Trustee by Merger.
If the Trustee consolidates with, merges or converts into, or transfers all
or substantially all its corporate trust business or assets to another
corporation, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee.
SECTION 7.10. Eligibility; Disqualification.
The Trustee shall at all times satisfy the requirements of TIA Sections
310(a) to the extent applicable. The Trustee (or any Affiliate thereof which
has unconditionally guaranteed the obligations of the Trustee hereunder) shall
have a combined capital and surplus of at least $50,000,000 as set forth in its
most recently published annual report of condition. The Trustee shall comply
with TIA Section 310(b). In determining whether the Trustee has conflicting
interests as defined in TIA Section 310(b)(1), the provisions contained in the
proviso to TIA Section 310(b)(1) and the Trustee's Statement of Eligibility on
Form T-1 shall be deemed incorporated herein.
SECTION 7.11. Preferential Collection of Claims Against the Company.
If and when the Trustee shall be or become a creditor of the Company under
TIA Section 311(a), the Trustee shall be subject to the provisions of the TIA
regarding the collection
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of claims against the Company contained in TIA Section 311 to the extent
applicable.
ARTICLE 8. SATISFACTION AND DISCHARGE OF JUNIOR INDENTURE; DEFEASANCE OF
CERTAIN OBLIGATIONS; UNCLAIMED MONIES
SECTION 8.01. Satisfaction and Discharge of Junior Indenture.
(a) The Company shall be deemed to have paid, satisfied and discharged the
entire indebtedness on any series of the Debentures outstanding on the date when
all Debentures issued in such series not previously delivered to the Trustee for
cancellation as provided herein have become due and payable and the Company has
irrevocably deposited or caused to be irrevocably deposited with the Trustee or
any Paying Agent as trust funds in trust, specifically pledged as security for,
and dedicated solely to, the benefit of the Holders of the Debentures of such
series (1) cash (which may be held in a non-interest bearing account insured by
the Federal Deposit Insurance Corporation), in the currency or currencies in
which such Debentures are payable, in an amount, or (2) U.S. Government
Obligations, maturing as to principal and interest at such times and in such
amounts as will ensure the availability of cash, or (3) a combination thereof,
sufficient to pay the principal of and premium, if any, and interest on all
Debentures of such series then outstanding on the date of the deposit or to the
Stated Maturity Date, as the case may be, provided that in the case of
redemption, notice of redemption shall have been given or the Company shall have
irrevocably instructed the Trustee to give such notice; and further provided
that the following conditions shall have been met:
(1) no Default or Event of Default with respect to the Debentures of
such series has occurred and is continuing on the date of such deposit or
occurs as a result of such deposit;
(2) the Company has delivered to the Trustee an Officer's Certificate
certifying that there does not exist (i) a default in the payment of all or
any portion of any Senior Indebtedness or (ii) any other default affecting
Senior Indebtedness permitting its acceleration as the result of which the
maturity of Senior Indebtedness has been accelerated;
(3) the Company has delivered to the Trustee an Officer's Certificate
and an Opinion of Counsel, each stating that all conditions precedent
relating to the defeasance contemplated by this provision have been
complied with; and
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(4) the Company has delivered to the Trustee an Opinion of Counsel to
the effect that (A) the deposit shall not result in the Company, the
Trustee or, if the Debentures of such series are held by a Trust, such
Trust being deemed to be an "investment company" under the Investment
Company Act of 1940, as amended, and (B) such deposit creates a valid trust
in which the Holders of the Debentures of such series have the sole
beneficial interest or that the Holders of the Debentures of such series
have a nonavoidable first priority security interest in such trust.
Upon such deposit, provisions of this Junior Indenture with respect to such
series of Debentures shall no longer be in effect (except as to (1) the rights
of registration of transfer and exchange of Debentures of such series, (2) the
replacement of apparently mutilated, defaced, destroyed, lost or stolen
Debentures of such series, (3) the rights of the Holders of the Debentures of
such series to receive payments of the principal thereof and premium, if any,
and interest thereon, (4) the rights of the Holders of the Debentures of such
series as beneficiaries hereof with respect to the property so deposited with
the Trustee payable to all or any of them, (5) the obligation of the Company to
maintain an office or agency for payments on and registration of transfer of the
Debentures of such series, (6) the rights, obligations and immunities of the
Trustee hereunder, and (7) the obligations of the Company to the Trustee for
compensation and indemnity under Section 7.07 hereof); and the Trustee shall, at
the written request and expense of the Company, execute proper instruments
acknowledging the same.
(b) The Company shall be deemed to have paid, satisfied and discharged the
entire indebtedness on any series of the Debentures outstanding when all
Debentures issued in such series not previously delivered to the Trustee for
cancellation as provided herein will become due and payable at their Stated
Maturity Date within one year and shall be so deemed on the date the Company has
irrevocably deposited or caused to be irrevocably deposited with the Trustee or
any Paying Agent as trust funds in trust, specifically pledged as security for,
and dedicated solely to, the benefit of the Holders of the Debentures of such
series (1) cash (which may be held in a non-interest bearing account insured by
the Federal Deposit Insurance Corporation), in the currency or currencies in
which such Debentures are payable, in an amount, or (2) U.S. Government
Obligations, maturing as to principal and interest at such times and in such
amounts as will ensure the availability of cash, or (3) a combination thereof,
sufficient to pay the principal of and premium, if any, and interest on all
Debentures of such series then outstanding on the date of the deposit or to the
Stated Maturity Date, as the case may be,
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provided that in the case of redemption, notice of redemption shall have been
given or the Company shall have irrevocably instructed the Trustee to give such
notice; and further provided that the following conditions shall have been met:
(1) no Default or Event of Default with respect to the Debentures of
such series has occurred and is continuing on the date of such deposit or
occurs as a result of such deposit or, insofar as Section 6.01(a)(3) or
6.01(a)(4) hereof is concerned, at any time during the period ending on the
91st day after the date of such deposit (it being understood that this
condition shall not be satisfied until the expiration of such period);
(2) no event or condition shall exist that, pursuant to the provisions
of Section 10.02, would prevent the Company from making payments of the
principal of or interest on the date of such deposit or at any time during
the period ending on the 91st day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until the
expiration of such period):
(3) the Company has delivered to the Trustee an Officer's Certificate
certifying that there does not exist (i) a default in the payment of all or
any portion of any Senior Indebtedness or (ii) any other default affecting
Senior Indebtedness permitting its acceleration as the result of which the
maturity of Senior Indebtedness has been accelerated;
(4) the Company has delivered to the Trustee an Officer's Certificate
and an Opinion of Counsel, each stating that all conditions precedent
relating to the defeasance contemplated by this provision have been
complied with; and
(5) the Company has delivered to the Trustee (i) either a private
Internal Revenue Service ruling or, based upon a change in law since the
date of this Indenture, an Opinion of Counsel, in either case, to the
effect that the Holders of the Debentures of such series will not recognize
income, gain or loss for United States federal income tax purposes as a
result of such deposit, defeasance and discharge and will be subject to
United States federal income tax on the same amount and in the manner and
at the same times as would have been the case if such deposit, defeasance
and discharge had not occurred, and (ii) an Opinion of Counsel to the
effect that (A) the deposit shall not result in the Company, the Trustee
or, if the Debentures of such series are held by a Trust, such Trust being
deemed to be an "investment company" under the Investment Company Act of
1940, as
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amended, and (B) such deposit creates a valid trust in which the Holders of
the Debentures of such series have the sole beneficial interest or that the
Holders of the Debentures of such series have a nonavoidable first priority
security interest in such trust.
Upon such deposit, provisions of this Junior Indenture with respect to such
series of Debentures shall no longer be in effect (except as to (1) the rights
of registration of transfer and exchange of Debentures of such series, (2) the
replacement of apparently mutilated, defaced, destroyed, lost or stolen
Debentures of such series, (3) the rights of the Holders of the Debentures of
such series to receive payments of the principal thereof and premium, if any,
and interest thereon, (4) the rights of the Holders of the Debentures of such
series as beneficiaries hereof with respect to the property so deposited with
the Trustee payable to all or any of them, (5) the obligation of the Company to
maintain an office or agency for payments on and registration of transfer of the
Debentures of such series, (6) the rights, obligations and immunities of the
Trustee hereunder, and (7) the obligations of the Company to the Trustee for
compensation and indemnity under Section 7.07 hereof); and the Trustee shall, at
the written request and expense of the Company, execute proper instruments
acknowledging the same.
SECTION 8.02. Application by Trustee of Funds Deposited for Payment of
Debentures; Miscellaneous.
(a) Subject to Section 8.04 hereof, all monies deposited with the Trustee
pursuant to Section 8.01 hereof shall be held in trust and applied by it to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent), to the Holders of the Debentures of the series
for the payment or redemption of which such monies have been deposited with the
Trustee, of all sums due and to become due thereon for principal and interest;
but such money need not be segregated from other funds except to the extent
required by law.
(b) The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U. S. Government Obligations
deposited pursuant to Section 8.01 hereof or the principal and interest received
in respect thereof other than any such tax, fee or other charge which by law is
for the account of the Holders of outstanding Debentures.
SECTION 8.03. Repayment of Monies Held by Paying Agent.
In connection with the satisfaction and discharge of this Junior Indenture,
all monies then held by any Paying Agent
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under this Junior Indenture shall, upon demand of the Company, be repaid to it
or paid to the Trustee, and thereupon such Paying Agent shall be released from
all further liability with respect to such monies.
SECTION 8.04. Return of Monies Held by the Trustee and Paying Agent Unclaimed
for Two Years.
Any monies deposited with or paid to the Trustee or any Paying Agent for
the payment of the principal of and premium, if any, or interest on the
Debentures of any series and not applied but remaining unclaimed for two years
after the date when such principal, premium, if any, or interest shall have
become due and payable shall, unless otherwise required by mandatory provisions
of applicable escheat or abandoned or unclaimed property law, be repaid, upon
written request, to the Company by the Trustee or such Paying Agent, and the
Holders of such Debentures shall, unless otherwise required by mandatory
provisions of applicable escheat or abandoned or unclaimed property laws,
thereafter look only to the Company for any payment which such Holder may be
entitled to collect, and all liability of the Trustee or any Paying Agent with
respect to such monies shall thereupon cease.
ARTICLE 9. AMENDMENTS
SECTION 9.01. Without Consent of Holders.
From time to time, when authorized by a resolution of the Board of
Directors, the Company and the Trustee, without notice to or the consent of any
Holders of the Debentures, may amend, waive or supplement this Junior Indenture:
(i) to cure any ambiguity, defect or inconsistency;
(ii) to comply with Article 5 hereof;
(iii) to provide for uncertificated Debentures in addition to or in
place of certificated Debentures;
(iv) to comply with any requirement of the SEC in connection with
the qualification of this Junior Indenture under the TIA; or
(v) to set forth the terms and conditions, which shall not be
inconsistent with this Junior Indenture, of any series of Debentures (other
than the Series 1998 Debentures), that are to be issued hereunder and the
form of Debentures of such series;
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provided that any such action does not adversely affect the Holders of such
Debentures and, in the case of the outstanding Debentures of a series then held
by a Trust, any such action does not adversely affect the holders of the Trust
Preferred Securities of that Trust.
SECTION 9.02. With Consent of Holders.
(a) The Company and the Trustee may amend or supplement this Junior
Indenture in any manner not permitted by Section 9.01, or may waive future
compliance by the Company with any provisions of this Junior Indenture, with the
consent of the Holders of at least a majority in aggregate principal amount of
the Debentures of each series affected thereby. Such an amendment or waiver may
not, without the consent of each Holder of the Debentures affected thereby:
(1) reduce the principal amount of such Debentures;
(2) reduce the percentage of principal amount of such Debentures the
Holders of which must consent to an amendment of this Junior Indenture or a
waiver;
(3) change the stated maturity of the principal of or the interest on
or rate of interest of such Debentures; or
(4) extend the time of payment of interest on such Debentures, except
as provided herein;
provided that, in the case of the outstanding Debentures of a series then held
by a Trust, (i) no such amendment shall be made that adversely affects the
holders of the Trust Preferred Securities of that Trust, (ii) no termination of
the Indenture may occur, and (iii) no waiver of any Event of Default with
respect to the Debentures of that series or compliance with any covenant under
this Indenture shall be effective, in each case without the prior consent of the
holders of at least a majority of the aggregate liquidation preference of the
outstanding Trust Preferred Securities of that Trust or the holder of each such
Trust Preferred Security, as applicable.
(b) A supplemental Junior Indenture that changes or eliminates any covenant
or other provision of this Junior Indenture that has expressly been included
solely for the benefit of one or more particular series of Debentures, or which
modifies the rights of the Holders of Debentures of such series with respect to
such covenant or other provision, shall be deemed not to affect the rights under
this Junior Indenture of the Holders of Debentures of any other series.
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(c) It shall not be necessary for the consent of the Holders of Debentures
or holders of Trust Preferred Securities under this Section 9.02 to approve the
particular form of any proposed amendment, but it shall be sufficient if such
consent approves the substance thereof.
(d) If certain Holders agree to defer or waive certain obligations of the
Company hereunder with respect to Debentures held by them, such deferral or
waiver shall not affect the rights of any other Holder to receive the payment or
performance required hereunder in a timely manner.
(e) After an amendment or waiver under this Section 9.02 becomes effective,
the Company shall mail to each Holder a notice briefly describing the amendment
or waiver. Any failure of the Company to mail such notices, or any defect
therein, shall not, however, in any way impair or affect the validity of such
amendment or waiver.
SECTION 9.03. Compliance with Trust Indenture Act.
Every supplemental Junior Indenture executed pursuant to this Article 9
shall comply with the TIA.
SECTION 9.04. Revocation and Effect of Consents; Waivers and Actions.
(a) Until an amendment, waiver or other action by Holders becomes
effective, a consent to it or any other action by a Holder of a Debenture
hereunder is a continuing consent by the Holder and every subsequent Holder of
that Debenture or portion of the Debenture that evidences the same obligation as
the consenting Holder's Debenture, even if notation of the consent, waiver or
action is not made on such Debenture. However, any such Holder or subsequent
Holder may revoke the consent, waiver or action as to such Holder's Debenture or
portion of the Debenture if the Trustee receives the notice of revocation before
the consent of the requisite aggregate principal amount of such Debentures then
outstanding has been obtained and not revoked. After an amendment, waiver or
action becomes effective, it shall bind every Holder of the Debentures of the
related series, except as provided in Section 9.02 hereof.
(b) The Company may, but shall not be obligated to, fix a Record Date for
the purpose of determining the Persons entitled to consent to any amendment or
waiver. If a Record Date is fixed, then, notwithstanding the first two
sentences of the immediately preceding paragraph, only Holders of Debentures or
holders of Trust Preferred Securities, as applicable, on such Record Date or
their duly designated proxies, and only those Persons, shall be entitled to
consent to such amendment, supplement or waiver or to revoke any consent
previously given,
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whether or not such Persons continue to be such after such Record Date. No such
consent shall be valid or effective for more than 90 days after such Record
Date.
SECTION 9.05. Notation on or Exchange of Debentures.
Debentures of the related series authenticated and made available for
delivery after the execution of any supplemental Junior Indenture pursuant to
this Article 9 may, and shall, if required by the Trustee, bear a notation in
form approved by the Trustee as to any matter provided for in such supplemental
Junior Indenture. If the Company shall so determine, new Debentures so modified
as to conform, in the opinion of the Trustee and the Board of Directors, to any
such supplemental Junior Indenture may be prepared and executed by the Company
and authenticated and made available for delivery by the Trustee in exchange for
outstanding Debentures.
SECTION 9.06. Trustee to Execute Supplemental Junior Indentures.
The Trustee shall execute any supplemental Junior Indenture authorized
pursuant to this Article 9 if the supplemental Junior Indenture does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
If it does, the Trustee may, but need not, execute it. In executing such
supplemental Junior Indenture the Trustee shall be entitled to receive, and
shall be fully protected in relying upon, an Officer's Certificate and Opinion
of Counsel stating that such supplemental Junior Indenture is authorized or
permitted by this Junior Indenture.
SECTION 9.07. Effect of Supplemental Junior Indentures.
Upon the execution of any supplemental Junior Indenture under this Article
9, this Junior Indenture shall be modified in accordance therewith, and such
supplemental Junior Indenture shall form a part of this Junior Indenture for all
purposes and every Holder of Debentures of the related series theretofore or
thereafter authenticated and made available for delivery hereunder shall be
bound thereby.
ARTICLE 10. SUBORDINATION
SECTION 10.01. Debentures Subordinated to Senior Indebtedness.
Notwithstanding the provisions of Section 6.10 hereof or any other
provision herein or in any Debenture, each of the Company and the Trustee and,
by their acceptance thereof, the Holders of each series of Debentures (a)
covenant and agree that all payments by the Company of the principal of and
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premium, if any, and interest on such series of Debentures (other than any
series of Debentures which have been discharged pursuant to Article 8) shall be
junior and subordinated in accordance with the provisions of this Article 10 to
the prior payment in full, in cash or cash equivalents, of all amounts payable
on, under or in connection with Senior Indebtedness, and (b) acknowledge that
holders of Senior Indebtedness are or shall be relying on this Article 10.
SECTION 10.02. Priority and Payment of Proceeds in Certain Events; Remedies
Standstill.
(a) Upon any payment or distribution of the Company's assets, of any kind
or character, whether in cash, property or securities, to creditors upon any
dissolution or winding up or total or partial liquidation or reorganization of
the Company, whether voluntary or involuntary, or assignment for the benefit of
creditors, marshaling of assets or bankruptcy, insolvency, debt restructuring or
other similar proceedings in connection with any insolvency or bankruptcy
proceeding of the Company, any amounts payable on, under or in connection with
Senior Indebtedness (including any interest accruing on such Senior Indebtedness
subsequent to the commencement of a bankruptcy, insolvency or similar
proceeding) shall first be paid in full in cash, or payment provided for in cash
or cash equivalents, before the Holders or the Trustee on behalf of the Holders
or the holders of Trust Preferred Securities shall be entitled to receive from
the Company any payment of principal of or premium, if any, or interest on any
series of Debentures or distribution of any assets or securities.
(b) No direct or indirect payment by or on behalf of the Company of
principal of or premium, if any, or interest on any series of Debentures (other
than any series of Debentures which has been discharged pursuant to Article 8),
whether pursuant to the terms of such series of Debentures or upon acceleration
or otherwise, shall be made if, at the time of such payment, there exists (i) a
default in the payment of all or any portion of any Senior Indebtedness and the
Trustee has received written notice thereof from the Company, from holders of
Senior Indebtedness or from any trustee, representative or agent therefor, (ii)
any other default affecting Senior Indebtedness as a result of which the
maturity of Senior Indebtedness has been accelerated and the Trustee has
received written notice from the Company, from holders of Senior Indebtedness or
from any trustee, representative or agent therefor, or (iii) any judicial
proceedings are pending with respect to any such defaults, and such default
shall not have been cured or waived by or on behalf of the holders of such
Senior Indebtedness.
(c) If, notwithstanding the foregoing provisions prohibiting such payment
or distribution, the Trustee or any
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Holder shall have received any payment on account of the principal of or
premium, if any, or interest on any series of Debentures when such payment is
prohibited by this Section 10.02 and before all amounts payable on, under or in
connection with Senior Indebtedness are paid in full in cash or cash
equivalents, then and in such event (subject to the provisions of Section 10.08
hereof) such payment or distribution shall be received and held in trust for the
holders of Senior Indebtedness and, at the written direction of the trustee,
representative or agent for the holders of the Senior Indebtedness, shall be
paid to the holders of the Senior Indebtedness remaining unpaid to the extent
necessary to pay such Senior Indebtedness in full in cash or cash equivalents.
(d) Upon any payment or distribution of assets or securities referred to in
this Article 10, the Trustee and the Holders shall be entitled to rely upon any
order or decree of a court of competent jurisdiction in which such dissolution,
winding up, liquidation or reorganization proceedings are pending, and upon a
certificate of the receiver, trustee in bankruptcy, liquidating trustee, agent
or other Person making any such payment or distribution, delivered to the
Trustee for the purpose of ascertaining the Persons entitled to participate in
such distribution, the holders of Senior Indebtedness and other Indebtedness of
the Company, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this Article
10.
SECTION 10.03. Payments Which May Be Made Prior to Notice.
Nothing in this Article 10 or elsewhere in this Junior Indenture shall
prevent (i) the Company, except under the conditions described in Section 10.02
hereof, from making payments of principal of or premium, if any, or interest on
any series of Debentures or from depositing with the Trustee any monies for such
payments, or (ii) the application by the Trustee of any monies deposited with it
for the purpose of making such payments of principal of or premium, if any, or
interest on such series of Debentures, to the Holders entitled thereto, unless
at least one Business Day prior to the date when such payment would otherwise
(except for the prohibitions contained in Section 10.02 hereof) become due and
payable the Trustee shall have received the written notice provided for in
Section 10.02(b)(i) or (ii) hereof.
SECTION 10.04. Rights of Holders of Senior Indebtedness Not To Be Impaired.
(a) No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time or in any way be
prejudiced or impaired by
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any act, or failure to act, in good faith by any such holder, or by any
noncompliance by the Company with the terms and provisions and covenants herein
regardless of any knowledge thereof any such holder may have or otherwise be
charged with.
(b) The provisions of this Article 10 are intended to be for the benefit
of, and shall be enforceable directly by, the holders of Senior Indebtedness.
Notwithstanding anything to the contrary in this Article 10, to the extent any
Holders or the Trustee have paid over or delivered to any holder of Senior
Indebtedness any payment or distribution received on account of the principal of
or premium (if any) or interest on any series of Debentures to which any other
holder of Senior Indebtedness shall be entitled to share in accordance with
Section 10.02 hereof, no holder of Senior Indebtedness shall have a claim or
right against any Holders or the Trustee with respect to any such payment or
distribution or as a result of the failure to make payments or distributions to
such other holder of Senior Indebtedness.
SECTION 10.05. Trustee May Take Action to Effectuate Subordination.
Each Holder of a Debenture, by such Holder's acceptance thereof, authorizes
and directs the Trustee on such Holder's behalf to take such action as may be
required by the trustee, representative or agent for holders of Senior
Indebtedness or by the Company to effectuate, as between the holders of Senior
Indebtedness and the Holders, the subordination as provided in this Article 10
and appoints the Trustee such Holder's attorney-in-fact for any and all such
purposes.
SECTION 10.06. Subrogation.
(a) Upon the payment in full, in cash or cash equivalents, of all Senior
Indebtedness, Holders of each series of Debentures shall be subrogated to the
rights of the holders of such Senior Indebtedness to receive payments or
distributions of assets of the Company made on such Senior Indebtedness until
all series of Debentures shall be paid in full; and for the purposes of such
subrogation, no payments or distributions to holders of such Senior Indebtedness
of any cash property or securities to which Holders of any series of Debentures
would be entitled except for this Article 10, and no payment pursuant to this
Article 10 to holders of such Senior Indebtedness by Holders of such series of
Debentures, shall, as between the Company, its creditors other than holders of
such Senior Indebtedness and such Holders of such series of Debentures, be
deemed to be a payment by the Company to or on account of such Senior
Indebtedness, it being understood that the provisions of this Article 10 are
solely for the purpose of defining the relative rights of the holders of such
Senior
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Indebtedness, on the one hand, and such Holders of such series of Debentures, on
the other hand.
(b) If any payment or distribution to which Holders of any series of
Debentures would otherwise have been entitled but for the provisions of this
Article 10 shall have been applied, pursuant to this Article 10, to the payment
of all Senior Indebtedness then and in such case Holders of such series of
Debentures shall be entitled to receive from the holders of such Senior
Indebtedness at the time outstanding any payments or distributions received by
such holders of Senior Indebtedness in excess of the amount sufficient to pay,
in cash or cash equivalents, all such Senior Indebtedness in full.
SECTION 10.07. Obligations of Company Unconditional; Reinstatement.
(a) Nothing in this Article 10 or elsewhere in this Junior Indenture or in
any Debenture is intended to or shall impair, as between the Company and Holders
of any series of Debentures, the obligations of the Company, which are absolute
and unconditional, to pay to such Holders the principal of and premium, if any,
and interest on such series of Debentures as and when the same shall become due
and payable in accordance with their terms, or is intended to or shall affect
the relative rights of Holders of such series of Debentures and creditors of the
Company other than the holders of the Senior Indebtedness, nor shall anything
herein or therein prevent the Trustee or any Holder of such series of Debentures
or holder of Trust Preferred Securities, as applicable, from exercising all
remedies otherwise permitted by applicable law under this Junior Indenture,
subject to the rights, if any, under this Article 10 of the holders of such
Senior Indebtedness in respect of cash, property or securities of the Company
received upon the exercise of any such remedy.
(b) The failure to make a scheduled payment of principal of or premium, if
any, or interest on any series of Debentures by reason of Section 10.02 shall
not be construed as preventing the occurrence of an Event of Default under
Section 6.01 hereof; provided, however, that if (i) the conditions preventing
the making of such payment no longer exist, and (ii) Holders of such series of
Debentures are made whole with respect to such omitted payments, the Event of
Default relating thereto (including any failure to pay any accelerated amounts)
shall be automatically waived, and the provisions of this Junior Indenture shall
be reinstated as if no such Event of Default had occurred.
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SECTION 10.08. Trustee Entitled to Assume Payments Not Prohibited in Absence of
Notice.
(a) The Company shall give prompt written notice to the Trustee of any fact
known to the Company that would prohibit the making of any payment to or by the
Trustee in respect of any series of Debentures. Failure to give such notice
shall not affect the subordination of the Debentures to Senior Indebtedness.
Notwithstanding the provisions of this or any other provisions of this
Indenture, the Trustee or Paying Agent shall not be charged with the knowledge
of the existence of any default in the payment of all or a portion of any Senior
Indebtedness or any other default affecting Senior Indebtedness as a result of
which the maturity of the Senior Indebtedness has been accelerated, unless and
until the Trustee or Paying Agent shall have received written notice thereof
from the Company or one or more holders of Senior Indebtedness or from any
trustee, representative or agent therefor or unless the Trustee or Paying Agent
otherwise had actual knowledge thereof; and, prior to the receipt of any such
written notice or actual knowledge of a responsible Trust Officer in the
Corporate Trust Department of the Trustee or Paying Agent, the Trustee or Paying
Agent may conclusively assume that no such facts exist.
(b) Unless at least one Business Day prior to the date when by the terms of
this Junior Indenture any monies are to be deposited by the Company with the
Trustee or any Paying Agent for any purpose (including, without limitation, the
payment of the principal of or premium, if any, or interest on any Debenture),
the Trustee or Paying Agent shall have received with respect to such monies the
notice provided for in Section 10.02 or a responsible Trust Officer in the
Corporate Trust Department of the Trustee or Paying Agent shall have actual
knowledge of default in the payment of all or a portion of any Senior
Indebtedness or any other default affecting Senior Indebtedness as the result of
which the maturity of the Senior Indebtedness has been accelerated, the Trustee
or Paying Agent shall have full power and authority to receive and apply such
monies to the purpose for which they were received. Neither of them shall be
affected by any notice to the contrary, which may be received by either on or
after such date. The foregoing shall not apply to the Paying Agent if the
Company is acting as Paying Agent. Nothing in this Section 10.08 shall limit
the right of the holders of Senior Indebtedness to recover payments as
contemplated by Section 10.02 hereof. The Trustee or Paying Agent shall be
entitled to rely on the delivery to it of a written notice by a Person
representing himself or itself to be a holder of such Senior Indebtedness (or a
trustee, representative or agent on behalf of such holder) to establish that
such notice has been given by a holder of such Senior Indebtedness or a trustee,
representative or agent on behalf of any such holder. The Trustee shall not be
deemed to have any
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duty to the holders (and shall be fully protected in relying upon such notice)
of Senior Indebtedness.
SECTION 10.09. Right of Trustee to Hold Senior Indebtedness.
(a) The Trustee and any Paying Agent shall be entitled to all of the rights
set forth in this Article 10 in respect of any Senior Indebtedness at any time
held by them to the same extent as any other holder of such Senior Indebtedness,
and nothing in this Junior Indenture shall be construed to deprive the Trustee
or any Paying Agent of any of its rights as such holder.
(b) Nothing in this Article 10 shall apply to claims of, or payments to,
the Trustee under or pursuant to Section 7.07 hereof.
SECTION 10.10. Reliance on Judicial Order or Certificate of Liquidating Agent.
Upon any payment or distribution of assets of the Company referred to in
this Article 10, the Trustee, and the Holders of each series of Debentures shall
be entitled to rely upon any order or decree entered by any court of competent
jurisdiction in which such insolvency, bankruptcy, receivership, liquidation,
reorganization, dissolution, winding up or similar case or proceeding is
pending, or a certificate of the trustee in bankruptcy, liquidating trustee,
custodian, receiver, assignee for the benefit of creditors, agent or other
person making such payment or distribution, delivered to the Trustee or to the
Holders of such series of Debentures, for the purpose of ascertaining the
persons entitled to participate in such payment or distribution, the holders of
Senior Indebtedness and other indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article 10.
SECTION 10.11. Trustee Not Fiduciary for Holders of Senior Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to the holders of
Senior Indebtedness and shall not be liable to any such holders if the Trustee
shall in good faith mistakenly pay over or distribute to Holders of such series
of Debentures or to the Company or to any other person cash, property or
securities to which any holders of Senior Indebtedness shall be entitled by
virtue of this Article 10 or otherwise. With respect to the holders of Senior
Indebtedness, the Trustee undertakes to perform or to observe only such of its
covenants or obligations as are specifically set forth in this Article 10 and no
implied covenants or obligations with
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respect to holders of Senior Indebtedness shall be read into this Indenture
against the Trustee.
ARTICLE 11. MISCELLANEOUS
SECTION 11.01. Trust Indenture Act Controls.
If any provision of this Junior Indenture limits, qualifies or conflicts
with the duties imposed by operation of subsection (c) of Section 318 of the
TIA, the imposed duties shall control. The provisions of Sections 310 to 317,
inclusive, of the TIA that impose duties on any Person (including provisions
automatically deemed included in an Junior Indenture unless the Junior Indenture
provides that such provisions are excluded) are a part of and govern this Junior
Indenture, except as, and to the extent, they are expressly excluded from this
Junior Indenture, as permitted by the TIA.
SECTION 11.02. Notices.
(a) Any notice, request or other communication required or permitted to be
given hereunder shall be in writing and delivered, telecopied or mailed by
first-class mail, postage prepaid, addressed as follows:
if to the Company:
Hawaiian Electric Company, Inc.
900 Richards Street
Honolulu, Hawaii 96813
Facsimile No.: (808) 543-7966
Attention: Treasurer
if to the Trustee:
The Bank of New York
101 Barclay Street, 21st Floor
New York, New York 10286
Facsimile No.: (212) 815-5915
Attention: Corporate Trust Trustee
Administration
(b) The Company or the Trustee, by giving notice to the other, may
designate additional or different addresses for subsequent notices of
communications.
(c) Any notice or communication given to a Debentureholder shall be mailed
or delivered to the Debentureholder at the Debentureholder's address as it
appears on the Securities Register of the Registrar and shall be sufficiently
given if mailed within the time prescribed.
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(d) Failure to mail a notice or communication to a Debentureholder or any
defect in it shall not affect its sufficiency with respect to other
Debentureholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not received by the addressee.
(e) If the Company mails a notice or communication to the Debentureholders,
it shall mail a copy to the Trustee and each Registrar, Paying Agent or co-
Registrar.
SECTION 11.03. Communication by Holders with Other Holders.
Debentureholders may communicate, pursuant to TIA Section 312(b), with
other Debentureholders with respect to their rights under this Junior Indenture
or any series of Debentures. The Company, the Trustee, the Registrar, the
Paying Agent, if any, and anyone else shall have the protection of TIA Section
312(c).
SECTION 11.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take any
action under this Junior Indenture, the Company shall furnish to the Trustee:
(i) an Officer's Certificate (complying with Section 11.05 hereof)
stating that, in the opinion of such Officer, all conditions precedent to
the taking of such action have been complied with; and
(ii) if appropriate, an Opinion of Counsel (complying with Section
11.05 hereof) stating that, in the opinion of such counsel, all such
conditions precedent to the taking of such action have been complied with.
SECTION 11.05. Statements Required in Certificate or Opinion.
Each Officer's Certificate and Opinion of Counsel with respect to
compliance with a covenant or condition provided for in this Junior Indenture
shall include:
(i) a statement that each Person making such Officer's Certificate
or Opinion of Counsel has read such covenant or condition;
(ii) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
Officer's Certificate or Opinion of Counsel are based;
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(iii) a statement that, in the opinion of each such Person, such
Person has made such examination or investigation as is necessary to enable
such Person to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(iv) a statement as to whether or not, in the opinion of such Person,
such covenant or condition has been complied with; provided, however, that
with respect to matters of fact not involving any legal conclusion, an
Opinion of Counsel may rely on an Officer's Certificate or certificates of
public officials.
SECTION 11.06. Severability Clause.
If any provision in this Junior Indenture or in any series of Debentures
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 11.07. Rules by Trustee, Paying Agent and Registrar.
The Trustee may make reasonable rules for action by or for a meeting of
Debentureholders. The Registrar and Paying Agent may make reasonable rules for
their functions.
SECTION 11.08. Legal Holidays.
A "Legal Holiday" is any day other than a Business Day. If any specified
date (including a date for giving notice) is a Legal Holiday, the action to be
taken on such date shall be taken on the next succeeding day that is not a Legal
Holiday, and if such action is a payment in respect of any series of Debentures,
unless otherwise specified pursuant to Section 2.01 hereof no principal, premium
(if any) or interest installment shall accrue for the intervening period; except
that if any interest payment is due on a Legal Holiday and the next succeeding
day is in the next succeeding calendar year, such payment shall be made on the
Business Day immediately preceding such Legal Holiday.
SECTION 11.09. Governing Law.
This Junior Indenture and each series of Debentures shall be governed by
and construed in accordance with the internal laws of the State of New York.
SECTION 11.10. No Recourse Against Others.
No director, officer, employee or stockholder, as such, of the Company
shall have any liability for any obligations of the
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Company under the Debentures or this Junior Indenture or for any claim based on,
in respect of or by reason of such obligations or their creation. By accepting a
Debenture, each Debentureholder shall waive and release all such liability. The
waiver and release shall be part of the consideration for the issue of each
series of Debentures.
SECTION 11.11. Successors.
All agreements of the Company in this Junior Indenture and Debentures shall
bind its successors and assigns. All agreements of the Trustee in this Junior
Indenture shall bind its successors and assigns.
SECTION 11.12. Multiple Original Copies of this Junior Indenture.
The parties may sign any number of copies of this Junior Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement. Any signed copy shall be sufficient proof of this Junior Indenture.
SECTION 11.13. No Adverse Interpretation of Other Agreements.
This Junior Indenture may not be used to interpret another Junior
Indenture, loan or debt agreement of the Company or any subsidiary. Any such
Junior Indenture, loan or debt agreement may not be used to interpret this
Junior Indenture.
SECTION 11.14. Table of Contents; Headings, Etc.
The Table of Contents, Cross-Reference Table, and headings of the Articles
and Sections of this Junior Indenture have been inserted for convenience of
reference only, are not to be considered a part hereof, and shall in no way
modify or restrict any of the terms or provisions hereof.
SECTION 11.15. Benefits of this Junior Indenture.
Except as otherwise expressly provided herein with respect to holders of
Senior Indebtedness and holders of Trust Preferred Securities, nothing in this
Junior Indenture or in any series of Debentures, express or implied, shall give
to any person, other than the parties hereto and their successors hereunder and
the Holders of such series of Debentures, any benefit or any legal or equitable
right, remedy or claim under this Junior Indenture.
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SIGNATURES
IN WITNESS WHEREOF, the undersigned, being duly authorized, have executed
this Junior Indenture on behalf of the respective parties hereto as of the date
first above written.
HAWAIIAN ELECTRIC COMPANY, INC.
By: /s/ Paul Oyer
--------------------------------
Paul A. Oyer
Financial Vice President
and Treasurer
By: /s/ Marvin A. Hawthorne
--------------------------------
Marvin A. Hawthorne
Assistant Treasurer
THE BANK OF NEW YORK,
AS TRUSTEE
By: /s/ T.C. Knight
--------------------------------
Name: Thomas Knight
Title: Assistant Vice President
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EXHIBIT A
No. HE-1 $31,546,400
HAWAIIAN ELECTRIC COMPANY, INC.
7.30% JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURE,
SERIES 1998
Hawaiian Electric Company, Inc., a Hawaii corporation (the "Company",
which term includes any successor corporation under the Junior Indenture
hereinafter referred to), for value received, hereby promises to pay to The Bank
of New York, as Property Trustee (the "Property Trustee") for, and for the
benefit of, HECO Capital Trust II (the "Trust") or registered assigns, the
principal sum of Thirty-One Million Five Hundred Forty-Six Thousand Four Hundred
Dollars ($31,546,400) on December 15, 2028, or on such other date which may be
established by the Company in accordance with the terms of said Junior Indenture
but which may not, in any event, be a date earlier than December 15, 2003 or a
date later than December 15, 2047, and to pay interest on said principal sum
from December 15, 1998 or from the most recent Interest Payment Date (as defined
below) to which interest has been paid or duly provided for, quarterly in
arrears on March 31, June 30, September 30 and December 31, commencing March 31,
1999 (each, an "Interest Payment Date"), at the rate of 7.30% per annum until
the principal hereof shall have become due and payable, and on any overdue
principal and (to the extent that payment of such interest is enforceable under
applicable law) on any overdue installment of interest at the same rate per
annum. The amount of interest payable on any Interest Payment Date shall be
computed on the basis of a 360-day year of twelve 30-day months, and for any
period shorter than a full calendar month, interest will be computed on the
basis of the actual number of days elapsed in such period. In the event that any
Interest Payment Date is not a Business Day, then interest will be payable on
the next succeeding day that is a Business Day (and without any interest or
other payment in respect of any such delay), except that, if such Business Day
is in the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day (without any reduction in interest or other
payment in respect of such early payment), in each case with the same force and
effect as if made on the date such payment was originally payable. The interest
installment so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in the Junior Indenture, be paid to the
Person in whose name this Debenture is registered at the close of business on
the Regular Record Date for such interest installment, as more fully provided in
the Junior Indenture. Any such interest installment not punctually paid or duly
provided for shall forthwith cease to be payable to the Holder on such Regular
Record Date, and may be paid to the Person in whose name this Debenture is
registered at the close of business on a Special Record Date to be fixed by the
Trustee (as defined below) for the payment of such defaulted interest, notice
whereof shall be given to the Holders of the Series 1998 Debentures not less
than 7 calendar days prior to such Special Record Date, as more fully provided
in the Junior Indenture.
<PAGE>
Payment of the principal of and interest on this Debenture will be
made in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts. If this
Debenture is not held by a depository or the Property Trustee, payment of any
interest on this Debenture (other than on the Stated Maturity Date or Redemption
Date) shall be made at the office of the Trustee in the City of New York or at
the office of such Paying Agent or Paying Agents as the Company may designate
from time to time, except that at the option of the Company payment of any
interest may be made (i) by check mailed to the address of the person entitled
thereto as such address shall appear in the Securities Register or (ii) by
transfer to an account maintained by the person entitled thereto as specified in
the Securities Register, provided that proper and timely written transfer
instructions have been received by the Regular Record Date; provided, however,
that at the request of a Holder of at least $10,000,000 aggregate principal
amount of Series 1998 Debentures, interest on such Debentures will be payable by
wire transfer within the continental United States in immediately available
funds to the bank account number specified in writing by such Holder to the
Registrar prior to the Regular Record Date.
If this Debenture is not held by a depository or the Property Trustee,
the principal amount hereof, any premium and any interest due on the Stated
Maturity Date or a Redemption Date (other than an Interest Payment Date) will be
paid only upon surrender of this Debenture at the principal corporate office of
The Bank of New York, Paying Agent, in New York, New York, or at such other
office or agency of the Paying Agent as the Company shall designate by written
notice to the Holder of this Debenture.
As long as this Debenture is held by the Property Trustee or if this
Debenture is held by a depository, any payments of principal of and premium, if
any, and interest on this Debenture will be made pursuant to the terms of the
Junior Indenture.
2
<PAGE>
The indebtedness evidenced by this Debenture is, to the extent
provided in the Junior Indenture, subordinate and subject in right of payment to
the prior payment in full of all Senior Indebtedness, and this Debenture is
issued subject to the provisions of the Junior Indenture with respect thereto.
The Holder of this Debenture, by accepting the same, (a) agrees to and shall be
bound by such provisions, (b) authorizes and directs the Trustee on his behalf
to take such action as may be necessary or appropriate to acknowledge or
effectuate the subordination so provided and (c) appoints the Trustee his
attorney-in-fact for any and all such purposes. The Holder of this Debenture,
by his acceptance hereof, hereby waives all notice of the acceptance of the
subordination provisions contained herein and in the Junior Indenture by each
holder of Senior Indebtedness, whether now outstanding or hereafter incurred,
and waives reliance by each such holder upon said provisions.
This Debenture is one of a duly authorized series of Debentures of the
Company (herein sometimes referred to as the "Series 1998 Debentures"),
specified in the Junior Indenture, limited in aggregate principal amount to
$31,546,400, except if the Debenture Exchange has occurred, the aggregate
principal amount may not exceed $51,546,400, issued under and pursuant to a
Junior Indenture dated as of December 1, 1998 (the "Junior Indenture") executed
and delivered between the Company and The Bank of New York, as trustee (the
"Trustee"). The Series 1998 Debentures are initially being issued to the Trust,
to be held on behalf of the Trust by its property trustee (the "Property
Trustee"). Concurrently with the issuance of the Series 1998 Debentures, the
Trust is issuing its trust securities, representing common and preferred
undivided beneficial interests in the assets of the Trust and having an
aggregate liquidation preference equal to the aggregate principal amount of the
Series 1998 Debentures and of the Subsidiary Debentures issued by Hawaii
Electric Light Company, Inc. ("HELCO") and Maui Electric Company, Limited
("MECO"), including the Trust's 7.30% Cumulative Quarterly Income Preferred
Securities, Series 1998 (the "Trust Preferred Securities"). By the terms of the
Junior Indenture, Debentures are issuable in series which may vary as to amount,
date of maturity, rate of interest and in other respects as in the Junior
Indenture provided. Reference is made to the Junior Indenture for a description
of the rights, limitations of rights, obligations, duties and immunities
thereunder of the Trustee, the Company and Holders of the Debentures. Each term
used in this Debenture which is defined in the Junior Indenture and not defined
herein shall have the meaning assigned to it in the Junior Indenture.
3
<PAGE>
At the option of the Company, the Series 1998 Debentures are
redeemable prior to maturity (i) at any time on or after December 15, 2003, in
whole or in part, and (ii) if a Special Event shall occur and be continuing, in
whole (but not in part), in each case at 100% of the principal amount thereof
plus accrued and unpaid interest to the Redemption Date. A "Special Event"
shall mean either a "Tax Event" or an "Investment Company Event." A "Tax Event"
shall mean that the Company or the Trust shall have received an opinion of
counsel (which may be regular counsel to the Company or an Affiliate, but not an
employee thereof and which must be acceptable to the Property Trustee of the
Trust), rendered by a law firm having a recognized federal and state tax and
securities practice, to the effect that, as a result of a Tax Action, there is
more than an insubstantial risk that (i) the Trust is, or will be within 90 days
of the date of said opinion, subject to United States federal income tax with
respect to income received or accrued on the Debentures, (ii) interest payable
by the Company to the Trust on the 1998 Series Debentures or by MECO or HELCO to
the Trust on its Subsidiary Debentures is not, or within 90 days of the date of
said opinion will not be, deductible by such company, in whole or in part, for
United States federal income tax purposes or (iii) the Trustee, or will be
within 90 days of the date of said opinion, subject to more than a de minimis
amount of other taxes, duties, or other governmental charges. A "Tax Action"
includes (a) any amendment to or change (including any announced prospective
change) in the laws (or any regulations thereunder) of the United States, or of
any State or the District of Columbia, or of any political subdivision or taxing
authority thereof or therein, (b) any administrative pronouncement or action
that represents an official position (including a clarification of an official
position) of the governmental authority or regulatory body making such
administrative pronouncement or taking such action or (c) any judicial decision
interpreting, clarifying or applying such laws or regulations, in each case that
occurs or becomes effective on or after the date of original issuance of the
Trust Preferred Securities. An "Investment Company Event" shall mean the receipt
by the Company or the Trust of an opinion of counsel, rendered by a law firm
having a recognized federal securities practice, to the effect that, as a result
of the occurrence of a change in law or regulation or a change (including a
prospective change) in interpretation or application of law or regulation by any
legislative body, court, governmental agency or regulatory authority (a "Change
in 1940 Act Law"), there is more than an insubstantial risk that the Trust is or
will be considered an "investment company" that is required to be registered
under the Investment Company Act of 1940, as amended, which Change in 1940 Act
Law becomes
4
<PAGE>
effective on or after the date of original issuance of the Trust Preferred
Securities.
At least 30 days but not more than 60 days before the Redemption Date,
the Trustee shall mail or caused to be mailed a notice of redemption by first-
class mail, postage prepaid, to each Holder of Series 1998 Debentures to be
redeemed.
The Series 1998 Debentures shall not be subject to any sinking fund.
Series 1998 Debentures in denominations larger than $25 may be redeemed in part
but only in integral multiples of $25.
In the event of redemption of this Debenture in part only, a new
Series 1998 Debenture or Debentures for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof.
In case an Event of Default with respect to the Series 1998 Debentures
occurs and is continuing, the principal of and interest on the Series 1998
Debentures may (and, in certain circumstances, shall) be declared, and upon such
declaration shall become, due and payable, in the manner, with the effect and
subject to the conditions provided in the Junior Indenture.
The Junior Indenture contains provisions for defeasance within one
year of the Stated Maturity Date of the entire indebtedness of this Debenture
upon compliance by the Company with certain conditions set forth therein.
Subject to certain exceptions in the Junior Indenture which require
the consent of every Holder, the Company and the Trustee may amend the Junior
Indenture or may waive future compliance by the Company with any provisions of
the Junior Indenture, with the consent of the Holders of at least a majority in
aggregate principal amount of the Series 1998 Debentures if affected thereby,
provided that if the Series 1998 Debentures are held by the Trust, no such
amendment or waiver that adversely affects the holders of the Trust Preferred
Securities shall be effective without the prior consent of the holders of at
least a majority in aggregate liquidation preference of the outstanding Trust
Preferred Securities. Subject to certain exceptions in the Junior Indenture,
without the consent of any Debentureholder, the Company and the Trustee may
amend the Junior Indenture to cure any ambiguity, defect or inconsistency, to
bind a successor to the obligations of the Junior Indenture, to provide for
uncertificated Debentures in addition to certificated Debentures, or to comply
with any requirements of the
5
<PAGE>
Debentures and the Securities and Exchange Commission in connection with the
qualification of the Junior Indenture under the TIA, provided that any such
action does not adversely affect the rights of any Debentureholder and, in the
case of Series 1998 Debentures held by the Trust, the rights of any holder of
Trust Preferred Securities. Amendments bind all Holders and subsequent Holders.
No reference herein to the Junior Indenture and no provision of this
Debenture or the Junior Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
interest on this Debenture at the time and place and at the rate and in the
money herein prescribed.
So long as no Event of Default with respect to the Series 1998
Debentures has occurred and is continuing, the Company shall have the right at
any time and from time to time to extend the interest payment period of the
Series 1998 Debentures for up to 20 consecutive quarters (the "Extension
Period"), provided that no Extension Period shall extend beyond the Stated
Maturity Date or Redemption Date of any Series 1998 Debenture. At the end of
the Extension Period, the Company shall pay all interest then accrued and unpaid
(together with interest thereon at the rate specified for the Series 1998
Debentures, compounded quarterly, to the extent that payment of such interest is
enforceable under applicable law). During such Extension Period and during any
Extension Period with respect to the Subsidiary Debentures, subject to certain
exceptions contained in the Junior Indenture, the Company may not, either
directly or indirectly through a subsidiary, (i) declare or pay any dividends or
distributions on, or redeem, purchase, acquire or make a liquidation payment
with respect to any of its Capital Stock, (ii) make any payment of principal,
interest or premium, if any, on or repay, repurchase or redeem any of its debt
securities (including other Debentures) that rank pari passu with or junior in
interest to the Series 1998 Debentures, or (iii) make any guarantee payments
with respect to any guarantee issued by the Company if such guarantee ranks pari
passu with or junior in interest to the Series 1998 Debentures. Prior to the
termination of any such Extension Period, the Company may further extend such
Extension Period, provided that such Extension Period, together with all such
previous and further extensions, shall not exceed 20 consecutive quarters and
shall not extend beyond the Stated Maturity Date or Redemption Date of any
Series 1998 Debenture. At the termination of any such Extension Period and upon
the payment of all amounts then due, the Company may elect to begin a new
Extension Period, subject to the foregoing restrictions.
6
<PAGE>
Series 1998 Debentures are issuable only in registered form without
coupons in denominations of $25 and any integral multiple thereof. As provided
in the Junior Indenture and subject to certain limitations therein set forth,
this Debenture is exchangeable for a like aggregate principal amount of Series
1998 Debentures of a different authorized denomination, as requested by the
Holder surrendering the same.
As provided in the Junior Indenture and subject to certain limitations
therein set forth, this Debenture is transferable by the Holder hereof upon
surrender of this Debenture for registration of transfer at the office or agency
of the Registrar accompanied by a written instrument or instruments of transfer
in form satisfactory to the Registrar duly executed by the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Series 1998
Debentures of authorized denominations and for the same aggregate principal
amount will be issued to the designated transferee or transferees. No service
charge will be made for any such transfer, but the Company may require payment
of a sum sufficient to cover any tax or other governmental charge payable in
relation thereto.
Prior to presentment for registration of transfer of this Debenture,
the Company, the Trustee, any Paying Agent and any Registrar may deem and treat
the Holder hereof as the absolute owner hereof (whether or not this Debenture
shall be overdue and notwithstanding any notice of ownership or writing hereon
made by anyone other than the Registrar) for the purpose of receiving payment of
or on account of the principal hereof and interest due hereon and for all other
purposes, and neither the Company nor the Trustee nor any Paying Agent nor any
Registrar shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of or the
interest on this Debenture, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Junior Indenture, against any
incorporator, stockholder, officer or director, past, present or future, as
such, of the Company or of any predecessor or successor corporation, 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 Debenture shall not be valid until an authorized signatory of the
Trustee manually signs and dates the Trustee's Certificate of Authentication
below.
7
<PAGE>
This Debenture will be governed by and construed under the internal
laws of the State of New York.
IN WITNESS WHEREOF, the Company has caused this Debenture to be signed
manually or by facsimile by its duly authorized officers and its corporate seal
or a facsimile thereof to be affixed hereto or imprinted hereon.
HAWAIIAN ELECTRIC COMPANY, INC.
(SEAL) By:
----------------------------------
Paul A. Oyer
Financial Vice President
and Treasurer
By:
----------------------------------
Marvin A. Hawthorne
Assistant Treasurer
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
THIS IS ONE OF THE DEBENTURES, OF THE SERIES
DESIGNATED, REFERRED TO IN THE WITHIN-MENTIONED JUNIOR
INDENTURE.
THE BANK OF NEW YORK, as Trustee
By:
----------------------------
Authorized Signatory
Dated:
-------------------------
8
<PAGE>
ASSIGNMENT FORM
To assign this Debenture, fill in the form below: (I) or (we) assign
and transfer this Debenture to:
_______________________________________________________________
(Insert assignee's social security or tax I.D. number)
_______________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint ____________________ agent to transfer this Debenture on
the books of the Securities Register. The agent may substitute another to act
for him.
Dated: __________________ Signature: ______________________
(Sign exactly as your name appears on the other
side of this Debenture)
Signature Guaranty: ____________________
<PAGE>
EXHIBIT 4(e)
This Trust Preferred Security is a Book-Entry Trust Preferred
Securities Certificate within the meaning of the Trust Agreement hereinafter
referred to and is registered in the name of The Depository Trust Company (the
"Depository") or a nominee of the Depository. This Trust Preferred Security is
exchangeable for Trust Preferred Securities registered in the name of a person
other than the Depository or its nominee only in the limited circumstances
described in the Trust Agreement referred to herein and no transfer of this
Trust Preferred Security (other than a transfer of this Trust Preferred Security
as a whole by the Depository to a nominee of the Depository or by a nominee of
the Depository to the Depository or another nominee of the Depository) may be
registered except in limited circumstances.
Unless this Trust Preferred Security is presented by an authorized
representative of The Depository Trust Company, a New York corporation (55 Water
Street, New York) to HECO Capital Trust II or its agent for registration of
transfer, exchange or payment, and any Trust Preferred Security issued is
registered in the name of Cede & Co. or such other name as requested by an
authorized representative of The Depository Trust Company and any payment hereon
is made to Cede & Co. or to such other entity as is requested by an authorized
representative of The Depository Trust Company, ANY TRANSFER, PLEDGE, OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as
the registered owner hereof, Cede & Co., has an interest herein.
<PAGE>
CERTIFICATE NO. NO. OF PREFERRED SECURITIES
- --------------- ---------------------------
TP-1 2,000,000
CUSIP NO. AGGREGATE LIQUIDATION PREFERENCE
--------- --------------------------------
40415B209 $50,000,000
CERTIFICATE EVIDENCING TRUST PREFERRED SECURITIES
OF
HECO CAPITAL TRUST II
7.30% CUMULATIVE QUARTERLY INCOME TRUST PREFERRED SECURITIES,
SERIES 1998
(LIQUIDATION PREFERENCE $25 PER PREFERRED SECURITY)
HECO Capital Trust II, a statutory business trust created under the
laws of the State of Delaware (the "Trust"), hereby certifies that Cede & Co.
(the "Holder") is the registered owner of two million (2,000,000) preferred
securities of the Trust representing undivided preferred beneficial interests in
the assets of the Trust and designated the HECO Capital Trust II 7.30%
Cumulative Quarterly Income Trust Preferred Securities, Series 1998 (Liquidation
Preference $25 Per Preferred Security) (the "Trust Preferred Securities").
Subject to the terms of Section 5.11 of the Trust Agreement (as defined herein),
the Trust Preferred Securities are freely transferable on the books and records
of the Trust, in person or by a duly authorized attorney, upon surrender of this
certificate duly endorsed and in proper form for transfer as provided in Section
5.04 of the Trust Agreement. The designations, rights, privileges, restrictions,
preferences and other terms and provisions of the Trust Preferred Securities are
set forth in, and this certificate and the Trust Preferred Securities
represented hereby are issued under and shall in all respects be subject to the
terms and provisions of, the Amended and Restated Trust Agreement of the Trust
dated as of December 1, 1998, as the same may be amended from time to time (the
"Trust Agreement"). The Holder is entitled to the benefits of the Trust
Guarantee Agreement entered into by Hawaiian Electric Company, Inc., a Hawaii
corporation ("HECO"), and The Bank of New York, as trust guarantee trustee,
dated as of December 1, 1998 (the "Trust Guarantee") to the extent provided
therein, together with the benefits resulting from the obligations of HECO under
the Trust Agreement, its 7.30% Junior Subordinated Deferrable Interest
Debentures, Series 1998 (the "HECO Debentures") and the Junior Indenture related
thereto, and its full and unconditional guarantee, on a subordinated basis, of
the obligations of Maui Electric Company, Limited and
2
<PAGE>
Hawaii Electric Light Company, Inc. (the "Subsidiary Guarantees") under their
respective 7.30% Junior Subordinated Deferrable Interest Debentures, Series 1998
(the "MECO Debentures" and the "HELCO Debentures," respectively) and the Junior
Indentures related thereto. The Property Trustee will furnish a copy of the
aforementioned agreements and instruments to the Holder without charge upon
written request to the Trust at its principal place of business.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
Holders of Trust Preferred Securities shall be entitled to receive
cumulative cash distributions at a rate per annum of 7.30% of the stated
liquidation preference of $25 per Trust Preferred Security. Distributions on
the Trust Preferred Securities shall, from the date of original issue,
accumulate and be cumulative and shall be payable quarterly in arrears on March
31, June 30, September 30 and December 31 of each year, commencing on March 31,
1999. Amounts available to the Trust for distribution to the Holders of the
Trust Preferred Securities will be limited to payments received by the Trust on
the HECO Debentures and the MECO Debentures and the HELCO Debentures (or
payments by HECO pursuant to the Subsidiary Guarantees). Distributions not paid
on the scheduled payment date will accumulate and compound quarterly (to the
extent permitted by applicable law) at the rate of 7.30% per annum.
The amount of Distributions payable for any period will be computed
for any full quarterly Distribution period on the basis of a 360-day year of
twelve 30-day months, except for any period shorter than a full calendar month,
in which case the amount shall be computed on the basis of the actual number of
days elapsed in such period. If the Trust Preferred Securities are in book-
entry only form, Distributions will be payable to the holders of record of the
Trust Preferred Securities as they appear on the books and records of the Trust
on the Business Day prior to the relevant payment date. If the Trust Preferred
Securities are not in book-entry only form, the relevant record date shall be
the date which is 15 days prior to the relevant payment date, whether or not a
Business Day. If Distributions are not paid when scheduled, the accumulated
Distributions shall be paid to the holders of record of the Trust Preferred
Securities as they appear on the books and records of the Trust on the relevant
record date as determined under the Trust Agreement with respect to the actual
payment date for such Distributions. In the event that any date on which a
Distribution is payable is not a Business Day, payment of such Distribution
shall be made on the next succeeding day which is a Business Day (without any
additional
3
<PAGE>
Distributions or other payment in respect of any such delay) except that, if
such Business Day falls in the next succeeding calendar year, such payment shall
be made on the immediately preceding Business Day (without any reduction of
Distributions or other payments in respect of such early payment), in each case
with the same force and effect as if made on the date such payment was
originally payable.
The Trust Preferred Securities shall be redeemable as provided in the
Trust Agreement.
Unless otherwise expressly provided or unless the context otherwise
requires, capitalized terms or phrases used herein and not otherwise defined
herein shall have the meaning or meanings assigned to such terms or phrases in
the Trust Agreement.
IN WITNESS WHEREOF, the undersigned Administrative Trustees of the
Trust have executed this certificate this 15th day of December, 1998.
HECO CAPITAL TRUST II
By: /s/ Paul Oyer
----------------------------
Name: Paul A. Oyer
Administrative Trustee
By: /s/ Lorie Ann Nagata
----------------------------
Name: Lorie Ann Nagata
Administrative Trustee
CERTIFICATE OF AUTHENTICATION
This Certificate is one of the issue of Trust Preferred Securities
described in the Trust Agreement.
Date of Authentication: December 15, 1998.
THE BANK OF NEW YORK,
AS PROPERTY TRUSTEE
BY: /s/ T.C. Knight
----------------------------
Authorized Signatory
4
<PAGE>
EXHIBIT 4(g)
TRUST GUARANTEE AGREEMENT
BETWEEN
HAWAIIAN ELECTRIC COMPANY, INC.
(AS GUARANTOR)
AND
THE BANK OF NEW YORK
(AS TRUST GUARANTEE TRUSTEE)
DATED AS OF
DECEMBER 1, 1998
<PAGE>
CROSS-REFERENCE TABLE/1/
<TABLE>
<CAPTION>
SECTION OF SECTION OF
TRUST INDENTURE ACT GUARANTEE
OF 1939, AS AMENDED AGREEMENT
- ------------------- ----------
<S> <C>
310(a).............................................. 4.01(a)
310(b).............................................. 4.01(c)
310(c).............................................. Inapplicable
311(a).............................................. 2.02(b)
311(b).............................................. 2.02(b)
311(c).............................................. Inapplicable
312(a).............................................. 2.02(a)
312(b).............................................. 2.02(b)
313................................................. 2.03
314(a).............................................. 2.04
314(b).............................................. Inapplicable
314(c).............................................. 2.05
314(d).............................................. Inapplicable
314(e).............................................. 1.01, 2.05, 3.02
314(f).............................................. 2.01, 3.02
315(a).............................................. 3.01(d)
315(b).............................................. 2.07
315(c).............................................. 3.01
315(d).............................................. 3.01(d)
316(a).............................................. 1.01, 2.06, 5.04
316(b).............................................. 5.03
316(c).............................................. 8.02
317(a).............................................. Inapplicable
317(b).............................................. Inapplicable
318(a).............................................. 2.01(b)
</TABLE>
- --------------------
/1/ This Cross-Reference Table does not constitute part of the Trust Guarantee
Agreement and shall not affect the interpretation of any of its terms or
provisions.
<PAGE>
TRUST GUARANTEE AGREEMENT
This TRUST GUARANTEE AGREEMENT (this "Trust Guarantee"), dated as of
December 1, 1998, is executed and delivered by Hawaiian Electric Company, Inc.,
a Hawaii corporation (the "Guarantor or "HECO"), to The Bank of New York, a New
York banking corporation, as trustee (the "Trust Guarantee Trustee"), for the
benefit of the Holders (as defined herein) from time to time of the Trust
Preferred Securities (as defined herein) of HECO Capital Trust II, a Delaware
statutory business trust (the "Trust").
WHEREAS, pursuant to an Amended and Restated Trust Agreement for the Trust
(the "Trust Agreement"), dated as of December 1, 1998 among the Trustees named
therein, the Guarantor, as Depositor, and the Holders from time to time of
undivided beneficial interests in the assets of the Trust, the Trust is issuing
2,000,000 7.30% Cumulative Quarterly Income Trust Preferred Securities, Series
1998 (liquidation preference $25 per preferred security) (the "Trust Preferred
Securities") representing preferred undivided beneficial interests in the assets
of the Trust and having the terms set forth in the Trust Agreement;
WHEREAS, the Trust Preferred Securities will be issued by the Trust and the
proceeds thereof, together with the proceeds from the sale by the Trust of its
Common Securities, will be used to purchase the Debentures (as defined in the
Trust Agreement) which will be deposited with The Bank of New York, as Property
Trustee under the Trust Agreement, as Trust Property (as defined in the Trust
Agreement); and
WHEREAS, as incentive for the Holders to purchase Trust Preferred
Securities, the Guarantor desires irrevocably and unconditionally to agree, to
the extent set forth herein, to pay to the Holders the Guarantee Payments (as
defined herein) and to make certain other payments on the terms and conditions
set forth herein.
NOW, THEREFORE, in consideration of the purchase by each Holder of Trust
Preferred Securities, which purchase the Guarantor hereby agrees shall benefit
the Guarantor, the Guarantor executes and delivers this Trust Guarantee for the
benefit of the Holders from time to time of the Trust Preferred Securities.
1
<PAGE>
ARTICLE 1. DEFINITIONS AND INTERPRETATION
SECTION 1.01. Definitions and Interpretation.
(a) In this Trust Guarantee, unless the context otherwise requires:
(1) capitalized terms used in this Trust Guarantee but not defined in
the preamble above have the respective meanings assigned to them in this
Section 1.01;
(2) capitalized terms used in this Trust Guarantee but not otherwise
defined herein shall have the respective meanings assigned to such terms in
the Trust Agreement as in effect on the date hereof;
(3) a term defined anywhere in this Trust Guarantee has the same
meaning throughout;
(4) all references to "this Trust Guarantee" are to this Trust
Guarantee Agreement as modified, supplemented or amended from time to time;
(5) all references in this Trust Guarantee to Articles and Sections
are to Articles and Sections of this Trust Guarantee unless otherwise
specified;
(6) a term defined in the Trust Indenture Act has the same meaning
when used in this Trust Guarantee unless otherwise defined in this Trust
Guarantee or unless the context otherwise requires;
(7) a reference to the singular includes the plural and vice versa;
and
(8) the masculine, feminine or neuter genders used herein shall
include the masculine, feminine and neuter genders.
(b) As used herein:
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
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"Common Securities" means the common securities representing common
undivided beneficial interests in the assets of the Trust and having the
rights provided therefor in the Trust Agreement.
"Covered Person" means any Holder or beneficial owner of Trust
Preferred Securities.
"Extension Period" has the meaning specified in Section 1.01 of each
of the Indentures.
"Event of Default" means a default by the Guarantor on any of its
payment or other obligations under this Trust Guarantee; provided that,
except with respect to a default resulting from a failure to pay any
Guarantee Payment, the Guarantor shall have received written notice of
default and shall not have cured such default within 60 days after receipt
of such notice.
"Guarantee Payments" means the following payments, without
duplication, with respect to the Trust Preferred Securities, to the extent
not paid or made by or on behalf of the Trust: (i) any accumulated and
unpaid Distributions required to be paid on the Trust Preferred Securities,
to the extent the Trust shall have funds on hand available therefor at such
time, (ii) the redemption price, including all accumulated and unpaid
Distributions to the date of redemption (the "Redemption Price"), with
respect to the Trust Preferred Securities called for redemption by the
Trust, to the extent the Trust shall have funds on hand available therefor
at such time, and (iii) upon a voluntary or involuntary termination,
winding-up or liquidation of the Trust, unless Distributable HECO
Debentures are distributed to the Holders, the lesser of (aa) the aggregate
of the liquidation preference of $25 per Trust Preferred Security plus
accumulated and unpaid Distributions on the Trust Preferred Securities to
the date of payment, to the extent the Trust shall have funds on hand
available therefor at such time and (bb) the amount of assets of the Trust
remaining available for distribution to Holders (in either case, the
"Liquidation Distribution").
"Holder" means a Person in whose name a Trust Preferred Security is
registered in the Securities Register; provided, however, that in
determining whether the holders of the requisite percentage of Trust
Preferred Securities have given any request, notice, consent or waiver
hereunder, "Holder" shall not include the Guarantor, the Trust Guarantee
Trustee or any Affiliate of the Guarantor or the Trust Guarantee Trustee.
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"Indemnified Person" means the Trust Guarantee Trustee, any Affiliate
of the Trust Guarantee Trustee, or any officers, directors, shareholders,
members, partners, employees, representatives, nominees, custodians or
agents of the Trust Guarantee Trustee.
"Indentures" means (i) the Junior Indenture dated as of December 1,
1998, between HECO and The Bank of New York, as trustee thereunder (the
"HECO Indenture"), (ii) the Junior Indenture dated as of December 1, 1998
among Maui Electric Company, Limited ("MECO"), a Hawaii corporation, HECO
(as guarantor of the obligations of MECO thereunder) and The Bank of New
York, as trustee thereunder (the "MECO Indenture"), and (iii) the Junior
Indenture dated as of December 1, 1998 among Hawaii Electric Light Company,
Inc. ("HELCO"), a Hawaii corporation, HECO (as guarantor of the obligations
of HELCO thereunder) and The Bank of New York, as trustee thereunder (the
"HELCO Indenture"), in each case as amended and supplemented; and
"Indenture" means any of the Indentures.
"List of Holders" has the meaning specified in Section 2.02(a).
"Majority in Liquidation Preference of the Trust Preferred Securities"
means, except as provided by the Trust Indenture Act, a vote by the
Holders, of more than 50% of the aggregate liquidation preference of all
then outstanding Trust Preferred Securities (excluding any Trust Preferred
Securities held by the Guarantor, the Trust Guarantee Trustee or any
Affiliate of the Guarantor or the Trust Guarantee Trustee).
"Officer's Certificate" means a certificate signed by the Chairman,
the President, any Vice President, the Treasurer, any Assistant Treasurer,
the Secretary or any Assistant Secretary of the Guarantor.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Trust Guarantee Trustee or the Guarantor or an Affiliate of
the Guarantor, or an employee of any thereof, who shall be acceptable to
the Trust Guarantee Trustee.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization, government or any agency or political
subdivision thereof or any other entity.
"Responsible Officer" means, with respect to the Trust Guarantee
Trustee, any Vice President, any Assistant
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Vice President, any trust officer or assistant trust officer or any other
officer of the corporate trust department of the Trust Guarantee Trustee
customarily performing functions similar to those performed by any of the
above designated officers and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of that officer's knowledge of and familiarity with the particular
subject.
"Securities Register" has the meaning set forth in Section 5.04 of the
Trust Agreement.
"Senior Indebtedness" means Senior Indebtedness as defined in the HECO
Indenture.
"Successor Trust Guarantee Trustee" means a successor Trust Guarantee
Trustee possessing the qualifications to act as Trust Guarantee Trustee
under Section 4.01.
"Trust Guarantee Trustee" means The Bank of New York, until a
Successor Trust Guarantee Trustee has been appointed and has accepted such
appointment pursuant to the terms of this Trust Guarantee and thereafter
means each such Successor Trust Guarantee Trustee.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed; provided,
--------
however, that in the event the Trust Indenture Act of 1939 is amended after
-------
such date, "Trust Indenture Act" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939, as so amended.
ARTICLE 2. TRUST INDENTURE ACT
SECTION 2.01. Trust Indenture Act; Application.
(a) This Trust Guarantee is subject to the provisions of the Trust
Indenture Act that are required to be part of this Trust Guarantee and shall, to
the extent applicable, be governed by such provisions.
(b) If and to the extent that any provision of this Trust Guarantee
limits, qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
SECTION 2.02. List of Holders.
(a) The Guarantor shall furnish or cause to be furnished to the Trust
Guarantee Trustee (i) semiannually, on or before
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January 15 and July 15 of each year, a list, in such form as the Trust Guarantee
Trustee may reasonably require, of the names and addresses of the Holders ("List
of Holders") as of a date not more than 15 days prior to the delivery thereof,
and (ii) at such other times as the Trust Guarantee Trustee may request in
writing, within 30 days after the receipt by the Guarantor of any such request,
a List of Holders as of a date not more than 15 days prior to the time such list
is furnished, in each case to the extent such information is in the possession
or control of the Guarantor and is not identical to a previously supplied List
of Holders or has not otherwise been received by the Trust Guarantee Trustee in
its capacity as such. The Trust Guarantee Trustee may destroy any List of
Holders previously given to it on receipt of a new List of Holders.
(b) The Trust Guarantee Trustee shall comply with its obligations under
Sections 311(a), Section 311(b) and Section 312(b) of the Trust Indenture Act.
SECTION 2.03. Reports by the Trust Guarantee Trustee.
Within 60 days after May 31 of each year, the Trust Guarantee Trustee shall
provide to the Holders such reports as are required by Section 313 of the Trust
Indenture Act, if any, in the form and in the manner provided by Section 313 of
the Trust Indenture Act. The Trust Guarantee Trustee shall also comply with the
requirements of Section 313(d) of the Trust Indenture Act.
SECTION 2.04. Periodic Reports to Trust Guarantee Trustee.
The Guarantor shall provide to the Trust Guarantee Trustee, the Securities
and Exchange Commission and the Holders such documents, reports and information,
if any, as required by Section 314 of the Trust Indenture Act and the compliance
certificate required by Section 314 of the Trust Indenture Act in the form and
manner and at the times required by Section 314 of the Trust Indenture Act.
Delivery of such reports, information and documents to the Trust Guarantee
Trustee is for informational purposes only and the Trust Guarantee Trustee's
receipt thereof shall not constitute constructive notice of any information
contained therein, including the Guarantor's compliance with any of its
covenants hereunder (as to which the Trust Guarantee Trustee is entitled to rely
exclusively on Officer's Certificates).
SECTION 2.05. Evidence of Compliance with Conditions Precedent.
The Guarantor shall provide to the Trust Guarantee Trustee such evidence of
compliance with such conditions precedent, if
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any, provided for in this Trust Guarantee that relate to any of the matters set
forth in Section 314(c) of the Trust Indenture Act. Each Officer's Certificate
and Opinion of Counsel delivered with respect to compliance with a condition or
covenant provided for in this Trust Guarantee shall include:
(a) a statement that the officer or attorney signing the Officer's
Certificate or Opinion of Counsel has read the covenant or condition and
the definition relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by such officer or attorney in rendering the
Officer's Certificate or Opinion of Counsel and upon which the statements
contained therein are based;
(c) a statement that such officer or attorney has made such
examination or investigation as, in such officer's or attorney's opinion,
is necessary to enable such officer or attorney to express an informed
opinion as to whether or not such covenant or condition has been complied
with; and
(d) a statement as to whether, in the opinion of such officer or
attorney, such condition or covenant has been complied with.
SECTION 2.06. Events of Default; Waiver.
The Holders of a Majority in Liquidation Preference of the Trust Preferred
Securities may, by vote, on behalf of the holders of Debentures, waive any past
Event of Default and its consequences. Upon such waiver, any such Event of
Default shall cease to exist, and any Event of Default arising therefrom shall
be deemed to have been cured, for every purpose of this Trust Guarantee, but no
such waiver shall extend to any subsequent or other default or Event of Default
or impair any right consequent therefrom.
SECTION 2.07. Event of Default; Notice.
(a) The Trust Guarantee Trustee shall, within 90 days after the occurrence
of an Event of Default, transmit by mail, first class postage prepaid, to the
Holders, notices of all Events of Default known to the Trust Guarantee Trustee,
unless such defaults have been cured before the giving of such notice, provided,
that, except in the case of a default in the payment of a Guarantee Payment, the
Trust Guarantee Trustee shall be protected in withholding such notice if and so
long as the board of directors, the executive committee or a trust committee of
directors and/or Responsible Officers of the Trust
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Guarantee Trustee in good faith determine that the withholding of such notice is
in the interests of the Holders.
(b) The Trust Guarantee Trustee shall not be deemed to have knowledge of
any Event of Default unless a Responsible Officer of the Trust Guarantee Trustee
shall have received written notice of such Event of Default.
ARTICLE 3. POWERS, DUTIES AND RIGHTS OF THE TRUST GUARANTEE TRUSTEE
SECTION 3.01. Powers and Duties of the Trust Guarantee Trustee.
(a) This Trust Guarantee shall be held by the Trust Guarantee Trustee for
the benefit of the Holders, and the Trust Guarantee Trustee shall not transfer
this Trust Guarantee to any Person except a Holder exercising his or her rights
pursuant to Section 5.04 or to a Successor Trust Guarantee Trustee on acceptance
by such Successor Trust Guarantee Trustee of its appointment to act as Successor
Trust Guarantee Trustee. The right, title and interest of the Trust Guarantee
Trustee shall automatically vest in any Successor Trust Guarantee Trustee upon
acceptance by such Successor Trust Guarantee Trustee of its appointment
hereunder and such vesting and cessation of title shall be effective whether or
not conveyancing documents have been executed and delivered pursuant to the
appointment of such Successor Trust Guarantee Trustee.
(b) If an Event of Default actually known to a Responsible Officer of the
Trust Guarantee Trustee has occurred and is continuing, the Trust Guarantee
Trustee shall enforce this Trust Guarantee for the benefit of the Holders.
(c) The Trust Guarantee Trustee, during the period before the occurrence
of any Event of Default and during the period after the curing of all Events of
Default that may have occurred, shall undertake to perform only such duties as
are specifically set forth in this Trust Guarantee, and no implied covenants
shall be read into this Trust Guarantee against the Trust Guarantee Trustee. In
case an Event of Default has occurred and is continuing (and has not been cured
or waived pursuant to Section 2.06), the Trust Guarantee Trustee shall exercise
such of the rights and powers vested in it by this Trust Guarantee, and use the
same degree of care and skill in its exercise thereof, as a prudent person would
exercise or use in the conduct of his or her own affairs.
(d) No provision of this Trust Guarantee shall be construed to relieve the
Trust Guarantee Trustee from liability
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for its own negligent action, its own negligent failure to act or its own
willful misconduct, except that:
(1) during the period prior to the occurrence of any Event of Default
and during the period after the curing or waiving of all such Events of
Default that may have occurred:
(A) the duties and obligations of the Trust Guarantee Trustee
shall be determined solely by the express provisions of this Trust
Guarantee, and the Trust Guarantee Trustee shall not be liable except
for the performance of such duties and obligations as are specifically
set forth in this Trust Guarantee; and
(B) in the absence of bad faith on the part of the Trust
Guarantee Trustee, the Trust Guarantee Trustee may conclusively rely,
as to the truth of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions furnished to the
Trust Guarantee Trustee and conforming to the requirements of this
Trust Guarantee; but in the case of any such certificates or opinions
that by any provision hereof or of the Trust Indenture Act are
specifically required to be furnished to the Trust Guarantee Trustee,
the Trust Guarantee Trustee shall be under a duty to examine the same
to determine whether or not they conform to the requirements of this
Trust Guarantee or the Trust Indenture Act;
(2) the Trust Guarantee Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Trust Guarantee
Trustee, unless it shall be proved that the Trust Guarantee Trustee was
negligent in ascertaining the pertinent facts upon which such judgment was
made;
(3) the Trust Guarantee Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in accordance
with the direction of the Holders of a Majority in Liquidation Preference
of the Trust Preferred Securities relating to the time, method and place of
conducting any proceeding for any remedy available to the Trust Guarantee
Trustee, or exercising any trust or power conferred upon the Trust
Guarantee Trustee under this Trust Guarantee; and
(4) no provision of this Trust Guarantee shall require the Trust
Guarantee Trustee to expend or risk its own funds or otherwise incur
personal financial liability
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in the performance of any of its duties or in the exercise of any of its
rights or powers, if the Trust Guarantee Trustee shall have reasonable
grounds for believing that the repayment of such funds or liability is not
reasonably assured to it under the terms of this Trust Guarantee or
reasonable indemnity against such risk or liability is not reasonably
assured to it.
SECTION 3.02. Certain Rights of Trust Guarantee Trustee.
(a) Subject to the provisions of Section 3.01:
(1) The Trust Guarantee Trustee may rely and shall be fully protected
in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or
other paper or document believed by it to be genuine and to have been
signed, sent or presented by the proper party or parties.
(2) Any direction or act of the Guarantor contemplated by this Trust
Guarantee shall be sufficiently evidenced by an Officer's Certificate
unless otherwise prescribed herein.
(3) Whenever, in the administration of this Trust Guarantee, the
Trust Guarantee Trustee shall deem it desirable that a matter be proved or
established before taking, suffering or omitting to take any action
hereunder, the Trust Guarantee Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad faith on its part,
request and rely upon an Officer's Certificate which, upon receipt of such
request from the Trust Guarantee Trustee, shall be promptly delivered by
the Guarantor.
(4) The Trust Guarantee Trustee may consult with legal counsel of its
selection, and the advice or Opinion of Counsel with respect to legal
matters shall be full and complete authorization and protection in respect
of any action taken, suffered or omitted to be taken by it hereunder in
good faith and in accordance with such advice or opinion. Such legal
counsel may be legal counsel to the Guarantor or any of its Affiliates and
may be one of its employees. The Trust Guarantee Trustee shall have the
right at any time to seek instructions concerning the administration of
this Trust Guarantee from any court of competent jurisdiction.
(5) The Trust Guarantee Trustee shall be under no obligation to
exercise any of the rights or powers vested
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in it by this Trust Guarantee at the request or direction of any Holder,
unless such Holder shall have provided to the Trust Guarantee Trustee such
reasonable indemnity as would satisfy a reasonable person in the position
of the Trust Guarantee Trustee against the costs, expenses (including
attorneys' fees and expenses) and liabilities that might be incurred by it
in complying with such request or direction; provided that nothing
contained in this Section 3.02(a)(5) shall be taken to relieve the Trust
Guarantee Trustee, upon the occurrence of an Event of Default, of its
obligation to exercise the rights and powers vested in it by this Trust
Guarantee.
(6) The Trust Guarantee Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Trust Guarantee Trustee,
in its discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit.
(7) The Trust Guarantee Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through its agents or attorneys, and the Trust Guarantee Trustee shall not
be responsible for any misconduct or negligence on the part of any such
agent or attorney appointed with due care by it hereunder.
(8) Whenever in the administration of this Trust Guarantee the Trust
Guarantee Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other action
hereunder, the Trust Guarantee Trustee (i) may request instructions from
the Holders, (ii) may refrain from enforcing such remedy or right or taking
such other action until such instructions are received, and (iii) shall be
protected in acting in accordance with such instructions.
(9) The Trust Guarantee Trustee shall have no duty to see to any
recording, filing or registration of any instrument (or any rerecording,
refiling or reregistration thereof).
(10) Any action taken by the Trust Guarantee Trustee or its agents
hereunder shall bind the Holders, and the signature of the Trust Guarantee
Trustee or its agents alone shall be sufficient and effective to perform
any such action. No third party shall be required to inquire as to the
authority of the Trust Guarantee Trustee to so
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act or as to its compliance with any of the terms and provisions of this
Trust Guarantee, both of which shall be conclusively evidenced by the Trust
Guarantee Trustee or its agent taking such action.
(11) The Trust Guarantee Trustee shall not be liable for any action
taken, suffered, or omitted to be taken by it in good faith and reasonably
believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Trust Guarantee.
(b) No provision of this Trust Guarantee shall be deemed to impose any
duty or obligation on the Trust Guarantee Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it in any
jurisdiction in which it shall be illegal, or in which the Trust Guarantee
Trustee shall be unqualified or incompetent in accordance with applicable law,
to perform any such act or acts or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Trust Guarantee
Trustee shall be construed to be a duty to act in accordance with such power and
authority.
SECTION 3.03. Not Responsible for Recitals or Issuance of the Trust Guarantee.
The recitals contained in this Trust Guarantee shall be taken as the
statements of the Guarantor, and the Trust Guarantee Trustee does not assume any
responsibility for their correctness. The Trust Guarantee Trustee makes no
representation as to the validity or sufficiency of this Trust Guarantee.
SECTION 3.04. Compensation and Reimbursement.
The Guarantor covenants and agrees to pay to the Trust Guarantee Trustee
from time to time, and the Trust Guarantee Trustee shall be entitled to, such
compensation as the Guarantor and the Trust Guarantee Trustee shall from time to
time agree (which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust) for all services rendered by it
in the execution of the trusts hereby created and in the exercise and
performance of any of the powers and duties hereunder of the Trust Guarantee
Trustee, and the Guarantor will pay or reimburse the Trust Guarantee Trustee
upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trust Guarantee Trustee in accordance with any of the
provisions of this Trust Guarantee (including the reasonable compensation and
the expenses and disbursements of its counsel and of all persons not regularly
in its employ) except any such expense,
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disbursement or advance as may arise from its willful misconduct, negligence or
bad faith.
ARTICLE 4. TRUST GUARANTEE TRUSTEE
SECTION 4.01. Trust Guarantee Trustee; Eligibility.
(a) Until such time as this Trust Guarantee shall be terminated in
accordance with the provisions of Section 7.01, there shall at all times be a
Trust Guarantee Trustee which shall:
(1) not be an Affiliate of the Guarantor; and
(2) be a Person that is eligible pursuant to the Trust Indenture Act
to act as such and has a combined capital and surplus of at least fifty
million U.S. dollars ($50,000,000), and shall be a corporation meeting the
requirements of Section 310(a) of the Trust Indenture Act. If such
corporation publishes reports of condition at least annually, pursuant to
law or to the requirements of the supervising or examining authority, then,
for the purposes of this Section and to the extent permitted by the Trust
Indenture Act, the combined capital and surplus of such corporation shall
be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published.
(b) If at any time the Trust Guarantee Trustee shall cease to be eligible
to so act under Section 4.01(a), the Trust Guarantee Trustee shall immediately
resign in the manner and with the effect set out in Section 4.02(c).
(c) If the Trust Guarantee Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act, the
Trust Guarantee Trustee and Guarantor shall in all respects comply with the
provisions of Section 310(b) of the Trust Indenture Act. In determining whether
the Trust Guarantee Trustee has a "conflicting interest" within the meaning of
Section 310(b)(1) of the Trust Indenture Act, the provisions contained in the
proviso to Section 310(b)(1) of the Trust Indenture Act and the Trust Guarantee
Trustee's Statement of Eligibility on Form T-1 shall be deemed incorporated
herein.
SECTION 4.02. Appointment, Removal and Resignation of the Trust Guarantee
Trustee.
(a) Subject to Section 4.02(b), the Trust Guarantee Trustee may be
appointed or removed without cause at any time by the Guarantor.
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(b) The Trust Guarantee Trustee shall not be removed until a Successor
Trust Guarantee Trustee has accepted such appointment and assumed the applicable
obligations hereunder by written instrument executed by such Successor Trust
Guarantee Trustee and delivered to the Guarantor.
(c) The Trust Guarantee Trustee may resign from office (without need for
prior or subsequent accounting) by an instrument in writing executed by the
Trust Guarantee Trustee and delivered to the Guarantor, which resignation shall
not take effect until a Successor Trust Guarantee Trustee has been appointed and
has accepted such appointment by instrument in writing executed by such
Successor Trust Guarantee Trustee and delivered to the Guarantor and the
resigning Trust Guarantee Trustee.
(d) If no Successor Trust Guarantee Trustee shall have been appointed and
accepted appointment as provided in this Section 4.02 within 60 days after
delivery to the Guarantor of an instrument of resignation, the resigning Trust
Guarantee Trustee may petition, at the expense of the Guarantor, any court of
competent jurisdiction for appointment of a Successor Trust Guarantee Trustee.
Such court may thereupon, after prescribing such notice, if any, as it may deem
proper, appoint a Successor Trust Guarantee Trustee.
(e) No Trust Guarantee Trustee shall be liable for the acts or omission to
act of any Successor Trust Guarantee Trustee.
ARTICLE 5. GUARANTEE
SECTION 5.01. Guarantee.
The Guarantor irrevocably and unconditionally agrees to pay in full to the
Holders of the outstanding Trust Preferred Securities the Guarantee Payments
(without duplication of amounts theretofore paid by or on behalf of the Trust
pursuant to the Trust Agreement), as and when due, regardless of any defense,
right of set-off or counterclaim which the Trust may have or assert. The
Guarantor's obligation to make a Guarantee Payment may be satisfied by direct
payment of the required amounts by the Guarantor to the Holders or by causing
the Trust to pay such amounts to the Holders.
SECTION 5.02. Waiver of Notice and Demand.
The Guarantor hereby waives notice of acceptance of the Trust Guarantee and
of any liability to which it applies or may apply, presentment, demand for
payment, any right to require a proceeding first against the Trust Guarantee
Trustee, the Trust
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or any other Person before proceeding against the Guarantor, protest, notice of
nonpayment, notice of dishonor, notice of redemption and all other notices and
demands.
SECTION 5.03. Obligations Not Affected.
(a) The obligations, covenants, agreements and duties of the Guarantor
under this Trust Guarantee shall in no way be affected or impaired by reason of
the happening from time to time of any of the following:
(1) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Trust of any express or implied agreement,
covenant, term or condition relating to the Trust Preferred Securities to
be performed or observed by the Trust;
(2) the extension of time for the payment by the Trust of all or any
portion of the Distributions (other than an extension of time for payment
of Distributions that results from an Extension Period on the Debentures as
permitted in the applicable Indenture), Redemption Price, Liquidation
Distribution or any other sums payable under the terms of the Trust
Preferred Securities or the extension of time for the performance of any
other obligation under, arising out of, or in connection with, the Trust
Preferred Securities;
(3) any failure, omission, delay or lack of diligence on the part of
the Holders to enforce, assert or exercise any right, privilege, power or
remedy conferred on the Holders pursuant to the terms of the Trust
Preferred Securities, or any action on the part of the Trust granting
indulgence or extension of any kind;
(4) the voluntary or involuntary liquidation, termination, 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;
(5) any invalidity of, or defect or deficiency in, the Trust
Preferred Securities;
(6) the settlement or compromise of any obligation guaranteed hereby
or hereby incurred; or
(7) to the extent permitted by law, any other circumstance whatsoever
that might otherwise constitute a legal or equitable discharge or defense
of a guarantor, it being the intent of this Section 5.03 that the
obligations
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of the Guarantor hereunder shall be irrevocable, absolute and unconditional
under any and all circumstances.
(b) There shall be no obligation of the Holders to give notice to, or
obtain the consent of, the Guarantor with respect to the happening of any of the
foregoing.
SECTION 5.04. Rights of Holders.
The Guarantor expressly acknowledges that: (i) this Trust Guarantee will
be deposited with the Trust Guarantee Trustee to be held for the benefit of the
Holders; (ii) the Trust Guarantee Trustee has the right to enforce this Trust
Guarantee on behalf of the Holders; (iii) the Holders of a Majority in
Liquidation Preference of the Trust Preferred Securities have the right to
direct the time, method and place of conducting of any proceeding for any remedy
available to the Trust Guarantee Trustee in respect of this Trust Guarantee or
exercising any trust or power conferred upon the Trust Guarantee Trustee under
this Trust Guarantee; and (iv) any Holder may institute a legal proceeding
directly against the Guarantor to enforce the Trust Guarantee Trustee's rights
under this Trust Guarantee, without first instituting a legal proceeding against
the Trust, the Trust Guarantee Trustee or any other Person or entity. The
Guarantor waives any right or remedy to require that any action be brought first
against the Trust, the Trust Guarantee Trustee or any other Person or entity
before proceeding directly against the Guarantor.
SECTION 5.05. Guarantee of Payment.
This Trust Guarantee creates a guarantee of payment and not of collection.
This Trust Guarantee will not be discharged except by payment of the Guarantee
Payments in full (without duplication of amounts theretofore paid by or on
behalf of the Trust pursuant to the Trust Agreement) or upon distribution of the
HECO Distributable Debentures to Holders as provided in the Trust Agreement.
SECTION 5.06. Subrogation.
The Guarantor shall be subrogated to all (if any) rights of the Holders
against the Trust in respect of any amounts paid to the Holders by the Guarantor
under this Trust Guarantee and shall have the right to waive payment by the
Trust pursuant to Section 5.01; provided, however, that the Guarantor shall not
(except to the extent required by mandatory provisions of law) be entitled to
enforce or exercise any rights which it may acquire by way of subrogation or any
indemnity, reimbursement or other agreement, in all cases as a result of payment
under this Trust Guarantee, if, at the time of any such payment, any amounts are
due and unpaid under this Trust Guarantee. If any
16
<PAGE>
amount shall be paid to the Guarantor in violation of the preceding sentence,
the Guarantor agrees to hold such amount in trust for the Holders and to pay
over such amount to the Holders.
SECTION 5.07. Independent Obligations.
The Guarantor acknowledges that its obligations hereunder are independent
of the obligations of the Trust with respect to the Trust Preferred Securities
and that the Guarantor shall be liable as principal and as debtor hereunder to
make Guarantee Payments pursuant to the terms of this Trust Guarantee
notwithstanding the occurrence of any event referred to in subsections (1)
through (7), inclusive, of Section 5.03.
ARTICLE 6. SUBORDINATION AND RANKING
SECTION 6.01. Subordination.
This Trust Guarantee shall constitute an unsecured obligation of the
Guarantor and shall rank subordinate and junior in right of payment to all
Senior Indebtedness of the Guarantor.
SECTION 6.02. Pari Passu Guarantees.
This Trust Guarantee shall rank pari passu with any similar trust guarantee
agreements issued by the Guarantor on behalf of the holders of securities
similar to the Trust Preferred Securities issued by any similar trusts in the
past or future.
ARTICLE 7. TERMINATION
SECTION 7.01. Termination.
This Trust Guarantee shall terminate and be of no further force and effect
upon (i) full payment of the Redemption Price for all Trust Preferred
Securities, (ii) the distribution of the HECO Distributable Debentures to the
Holders or (iii) full payment of the amounts payable in accordance with the
Trust Agreement upon liquidation of the Trust. Notwithstanding the foregoing,
this Trust Guarantee will continue to be effective or will be reinstated, as the
case may be, if at any time any Holder must restore payment of any sums paid
with respect to Trust Preferred Securities or this Trust Guarantee.
17
<PAGE>
ARTICLE 8. INDEMNIFICATION
SECTION 8.01. Indemnification.
The Guarantor agrees to indemnify each Indemnified Person for, and to hold
each Indemnified Person harmless against, any and all loss, liability, damage,
claim or expense, including taxes (other than taxes based on the income of such
Indemnified Person) incurred without willful misconduct, gross negligence or bad
faith on its part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs and
expenses (including reasonable legal fees and expenses) of defending itself
against, or investigating, any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder. The
obligation to indemnify as set forth in this Section 8.01 shall survive the
termination of this Trust Guarantee or the earlier resignation or removal of the
Trust Guarantee Trustee. The Trust Guarantee Trustee will not claim or exact
any lien or charge on any Guarantee Payments as a result of any amount due to it
under this Trust Guarantee.
ARTICLE 9. MISCELLANEOUS
SECTION 9.01. Successors and Assigns.
All guarantees and agreements contained in this Trust Guarantee shall bind
the successors, assigns, receivers, trustees and representatives of the
Guarantor and shall inure to the benefit of the Holders of the Trust Preferred
Securities then outstanding. The Guarantor may not consolidate with or merge
with or into, or sell, convey, transfer or lease its properties and assets as an
entirety or substantially as an entirety (either in one transaction or a series
of transactions) to, any Person unless permitted under Article 5 of the HECO
Indenture. In connection with a consolidation, merger or sale involving the
Guarantor that is permitted under Article 5 of the HECO Indenture, the Person
formed by or surviving such consolidation or merger or to which such sale,
conveyance, transfer or lease shall have been made, if other than the Guarantor,
shall expressly assume all of the obligations of the Guarantor hereunder and
under the Trust Agreement.
SECTION 9.02. Amendments.
Except with respect to any changes which do not adversely affect the rights
of the Holders in any material respect (in which case no consent of the Holders
will be required), this Trust Guarantee may only be amended with the prior
approval of the Holders of a Majority in Liquidation Preference of the
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<PAGE>
Trust Preferred Securities. The provisions of Article 6 of the Trust Agreement
concerning meetings of the Holders shall apply to the giving of such approval.
SECTION 9.03. Notices.
(a) Any notice, request or other communication required or permitted to be
given hereunder shall be in writing and delivered, telecopied or mailed by first
class mail, postage prepaid, as follows:
(1) if given to the Guarantor, to the address set forth below or such
other address as the Guarantor may give notice of to the Trust, the Trust
Guarantee Trustee and the Holders:
Hawaiian Electric Company, Inc.
900 Richards Street
Honolulu, Hawaii 96813
Facsimile No: (808) 543-7966
Attention: Treasurer
(2) if given to the Trust, in care of the Property Trustee at the
address set forth below or such other address as the Trust may give notice
of to the Guarantor, the Trust Guarantee Trustee and the Holders:
HECO Capital Trust II
c/o The Bank of New York
101 Barclay Street, 21st Floor
New York, New York 10286
Facsimile No: (212) 815-5915
Attention: Corporate Trust Trustee
Administration
with a copy to:
Hawaiian Electric Company, Inc.
900 Richards Street
Honolulu, Hawaii 96813
Facsimile No.: (808) 543-7966
Attention: Treasurer
(3) if given to the Trust Guarantee Trustee, to the address set forth
below or such other address as the Trust Guarantee Trustee may give notice
of to the Guarantor, the Trust and the Holders:
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<PAGE>
The Bank of New York
101 Barclay Street, 21st Floor
New York, New York 10286
Facsimile No: (212) 815-5915
Attention: Corporate Trust Trustee
Administration
with a copy to:
Hawaiian Electric Company, Inc.
900 Richards Street
Honolulu, Hawaii 96813
Facsimile No.: (808) 543-7966
Attention: Treasurer
(4) if given to any Holder, at the address set forth in the
Securities Register.
(b) All notices hereunder shall be deemed to have been given when received
in person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address of which no notice was given,
such notice or other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
SECTION 9.04. Benefit.
This Trust Guarantee is solely for the benefit of the Holders and is not
separately transferable from the Trust Preferred Securities.
SECTION 9.05. Governing Law.
THIS TRUST GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AS APPLIED TO CONTRACTS MADE
AND PERFORMED WITHIN THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAW
PRINCIPLES THEREOF.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
20
<PAGE>
THIS TRUST GUARANTEE is executed as of the day and year first above
written.
HAWAIIAN ELECTRIC COMPANY, INC., as Guarantor
By: /s/ Paul Oyer
--------------------------------
Paul A. Oyer
Financial Vice President
and Treasurer
By: /s/ Marvin A. Hawthorne
--------------------------------
Marvin A. Hawthorne
Assistant Treasurer
THE BANK OF NEW YORK,
as Trust Guarantee Trustee
By: /s/ T.C. Knight
--------------------------------
Name: Thomas C. Knight
Title: Assistant Vice President
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<PAGE>
EXHIBIT 4(h)
MAUI ELECTRIC COMPANY, LIMITED
and
HAWAIIAN ELECTRIC COMPANY, INC., as Guarantor
and
THE BANK OF NEW YORK, as Trustee
JUNIOR INDENTURE
Dated as of December 1, 1998
Providing for the Issuance of
Junior Subordinated Deferrable Interest Debentures in Series
including
7.30% Junior Subordinated Deferrable Interest Debentures,
Series 1998
<PAGE>
JUNIOR INDENTURE (this "Indenture" or "Junior Indenture"), dated as of
December 1, 1998, by and among Maui Electric Company, Limited, a corporation
duly organized and existing under the laws of the State of Hawaii (the
"Company"), Hawaiian Electric Company, Inc., a corporation duly organized and
existing under the laws of the State of Hawaii ("HECO"), and The Bank of New
York, a New York banking corporation, as trustee (the "Trustee").
WHEREAS, the Company may from time to time issue, authenticate and deliver
securities under this Indenture, in one or more series (the "Debentures").
WHEREAS, the Company is a wholly owned subsidiary of HECO.
WHEREAS, HECO may from time to time create or establish one or more
statutory business trusts for the purpose of issuing undivided beneficial
interests in the assets thereof (the "Trust Securities") and using the proceeds
thereof to acquire the Junior Subordinated Deferrable Interest Debentures of
HECO and HECO's subsidiaries, including any of the Company's Debentures.
WHEREAS, HECO, as depositor, The Bank of New York, as Property Trustee (the
"Property Trustee II"), The Bank of New York, as Delaware Trustee (the "Delaware
Trustee II"), and the Administrative Trustees named therein have heretofore duly
declared and established HECO Capital Trust II, a Delaware business trust
("Trust II"), by entering into a Trust Agreement dated as of October 7, 1998
(the "Original Trust Agreement") and by executing and filing with the Secretary
of State of the State of Delaware a Certificate of Trust on October 15, 1998.
WHEREAS, the Original Trust Agreement has been amended and restated
pursuant to an Amended and Restated Trust Agreement dated as of December 1, 1998
among HECO, as depositor, the Property Trustee II, the Delaware Trustee II, the
Administrative Trustees named therein and the holders, from time to time, of
undivided beneficial interests in the assets of Trust II (the "Trust II
Agreement").
WHEREAS, HECO has authorized the issuance of its 7.30% Junior Subordinated
Deferrable Interest Debentures, Series 1998 (the "HECO Series 1998 Debentures")
to be purchased by Trust II with the proceeds from the issuance and sale of the
Trust Securities of Trust II and HECO has duly authorized the execution and
delivery of a related Junior Indenture dated as of December 1, 1998 by and
between HECO and The Bank of New York, a New York banking corporation, as
trustee (the "HECO Junior Indenture").
<PAGE>
WHEREAS, the Company has authorized the issuance of its 7.30% Junior
Subordinated Deferrable Interest Debentures, Series 1998 (the "Series 1998
Debentures") to be purchased by Trust II with a portion of the proceeds from the
issuance and sale of the Trust Securities of Trust II, and the Company has duly
authorized the execution and delivery of this Junior Indenture.
WHEREAS, HECO has authorized the execution and delivery of this Junior
Indenture to provide for the Guarantee (as hereinafter defined) with respect to
any series of Debentures, and has performed all acts necessary to make its
guarantee the valid obligation of HECO.
WHEREAS, all things necessary to make the securities issued hereunder, when
duly issued and executed by the Company and authenticated and delivered
hereunder, the valid obligations of the Company, and to make this Junior
Indenture a valid and binding agreement of the Company, enforceable against the
Company in accordance with its terms, have been done.
NOW THEREFORE, each of the Company, the Trustee and HECO, intending to be
legally bound hereby, agrees as follows for the benefit of the other parties and
for the equal and ratable benefit of the Holders (as hereinafter defined) of the
securities issued hereunder, including the Series 1998 Debentures:
ARTICLE 1. DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"Additional Sums" means the additional amounts, as provided in Section 4.06
hereof, as may be necessary in order that the amount of distributions then due
and payable by any Trust on its outstanding Trust Securities shall not be
reduced as a result of any additional taxes, duties or other governmental
charges to which such Trust has become subject.
"Affiliate" of any specified Person means any other Person, directly or
indirectly, controlling or controlled by or under direct or indirect common
control with such specified Person. When used with respect to any Person,
"control" means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
2
<PAGE>
"Board of Directors" means the Board of Directors of the Company or any
committee thereof duly authorized to act on behalf of such Board.
"Board Resolution" means (i) a copy of a resolution certified by the
Secretary or the Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification and delivered to the Trustee or (ii) a certificate signed by an
authorized officer or officers to whom the Board of Directors has delegated its
authority, and in each case, delivered to the Trustee.
"Business Day" means any day that is not a Saturday, a Sunday or a day on
which banking institutions in the City of New York are authorized or required by
law or executive order to close.
"Capital Lease Obligations" of a Person means any obligation which is
required to be classified and accounted for as a capital lease on the face of a
balance sheet of such Person prepared in accordance with GAAP.
"Capital Stock" means any and all shares, interests, rights to purchase,
warrants, options, participation or other equivalents of or interests in
(however designated) corporate stock.
"Company" means Maui Electric Company, Limited, a Hawaii corporation, or
any successor thereto.
"Company Order" means a written request or order signed in the name of the
Company by an Officer of the Company and delivered to the Trustee.
"Covered Person" means any Holder or beneficial owner of the Debentures.
"Debenture Exchange" means the issuance of HECO Series 1998 Debentures in
exchange for Debentures of the Company held by Trust II pursuant to Section
2.05(b) of the Trust II Agreement.
"Debentureholder" or "Holder" means a Person in whose name a Debenture is
registered on the Registrar's books.
"Debentures" shall mean any of the securities of any series issued,
authenticated and delivered under this Junior Indenture.
3
<PAGE>
"Default" means any event which is, or after notice or passage of time, or
both, would be, an Event of Default pursuant to Section 6.01 hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Extension Period", with respect to any series of Debentures, means the
period during which the Company may elect to extend the interest payment period
on such series of the Debentures pursuant to Section 4.01(b) hereof; provided
that no Extension Period shall extend beyond the Stated Maturity Date or the
Redemption Date of any Debenture of such series.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board.
"Guarantee" means the guaranty by HECO of the obligations of the Company as
provided for in Article 11 hereof.
"Guarantee Event of Default" means a default by the Guarantor on any of its
payment or other obligations under the Guarantee; provided, that except with
respect to a default resulting from a failure to pay any Guarantee Payment, the
Guarantor shall have received notice of default and shall not have cured such
default within 60 days after receipt of such notice.
"Guarantee Payments" means, with respect to any series of Debentures, to
the extent not paid or made by the Company, the due and punctual payment of the
principal of and premium, if any, and interest on such series of Debentures,
when and as the same shall become due and payable, whether at maturity by reason
of acceleration or otherwise, according to the terms of such series of
Debentures and of this Junior Indenture.
"Guarantor" means HECO.
"Guaranteed Obligations" means, with respect to any series of Debentures,
all indebtedness, liabilities, obligations, covenants and duties of, and all
terms and conditions to be observed by, the Company (including in its capacity
as a "debtor in possession" under any Bankruptcy Law) due or owing to, or in
favor or for the benefit of, the Trustee (or any other Person that becomes the
Trustee by reason of any succession or assignment at any time) or the Holders
under this Indenture, including the Company's obligations to make Guarantee
Payments with respect to such series of Debentures,
4
<PAGE>
in each case whether or not an allowable claim against the Company under any
Bankruptcy Law, or otherwise enforceable against the Company, and including, in
any event, interest accruing after the filing of any petition in bankruptcy or
for reorganization relating to the Company whether or not such claim for post-
petition interest is allowed in such proceeding.
"HECO" means Hawaiian Electric Company, Inc., a corporation organized under
the laws of the Kingdom of Hawaii, or any successor thereto.
"HECO Junior Indenture" means the Junior Indenture, dated as of December 1,
1998, by and between HECO and The Bank of New York, a New York banking
corporation, as trustee thereunder, as amended or supplemented from time to time
in accordance with the terms thereof, including the provisions of the TIA that
are deemed to be a part thereof.
"HECO Series 1998 Debentures" means HECO's 7.30% Junior Subordinated
Deferrable Interest Debentures, Series 1998 issued under the HECO Junior
Indenture.
"Holder" or "Debentureholder" means a Person in whose name a Debenture is
registered on the Registrar's books.
"Indebtedness" means, without duplication, with respect to the Company,
whether recourse is to all or a portion of the assets of the Company and whether
or not contingent, (i) every obligation of the Company for money borrowed; (ii)
every obligation of the Company evidenced by bonds, debentures, notes or other
similar instruments, including obligations incurred in connection with the
acquisition of property, assets or businesses; (iii) every reimbursement
obligation of the Company with respect to letters of credit, bankers'
acceptances or similar facilities issued for the account of the Company; (iv)
every obligation of the Company issued or assumed as the deferred purchase price
of property or services (but excluding trade accounts payable or accrued
liabilities arising in the ordinary course of business); (v) Capital Lease
Obligations of the Company; and (vi) every obligation of the type referred to in
clauses (i) through (v) above of another Person and all dividends of another
Person the payment of which, in either case, the Company has guaranteed or is
responsible or liable, directly or indirectly, as obligor or otherwise.
"Indemnified Person" means the Trustee, any Affiliate of the Trustee, or
any officers, directors, shareholders, members, partners, employees,
representatives, nominees, custodians or agents of the Trustee.
5
<PAGE>
"Indenture" or "Junior Indenture" means this Junior Indenture, as amended
or supplemented from time to time in accordance with the terms hereof, including
the provisions of the TIA that are deemed to be a part hereof.
"Interest Payment Date", when used with respect to the Debentures of any
series, means the stated maturity of any installment of interest on the
Debentures of that series.
"Issue Date", with respect to a series of Debentures, means the date on
which the Debentures of such series are originally issued.
"Junior Indenture" means this Junior Indenture, as amended or supplemented
from time to time in accordance with the terms hereof, including the provisions
of the TIA that are deemed to be a part hereof.
"Officer" means, with respect to any corporation, the Chairman of the
Board, the President, any Vice President, the Treasurer, any Assistant
Treasurer, the Secretary or any Assistant Secretary of such corporation.
"Officer's Certificate" means a written certificate containing the
applicable information specified in Sections 12.04 and 12.05 hereof, signed in
the name of the Company by any one or more of its Officers, and delivered to the
Trustee.
"Opinion of Counsel" means a written opinion containing the applicable
information specified in Sections 12.04 and 12.05 hereof, by legal counsel (who
may be counsel to the Company) and is reasonably acceptable to the Trustee.
"Paying Agent" means any Person authorized by the Company to pay the
principal of and premium, if any, and interest on the Debentures of any series
on behalf of the Company.
"Person" means any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated
organization, government or any agency or political subdivision thereof or any
other entity.
"Predecessor Debentures" of any particular Debenture means every previous
Debenture evidencing all or a portion of the same debt as that evidenced by such
particular Debenture; and for purposes of this definition, any Debenture
authenticated and delivered under Section 2.09 hereof in exchange for or in lieu
of a mutilated, destroyed, lost or stolen Debenture shall be deemed to evidence
the same debt as the mutilated, destroyed, lost or stolen Debenture.
6
<PAGE>
"Property Trustee II" means The Bank of New York and its successors and
assigns, as property trustee under the Trust II Agreement.
"Record Date", with respect to any series of the Debentures, means the
Regular Record Date, the Special Record Date or any date set to determine the
Holders of Debentures of such series entitled to vote, consent, make a request
or exercise any other right associated with such series of Debentures.
"Redemption Date", with respect to any Debentures of any series to be
redeemed, means the date specified for the redemption thereof in accordance with
the terms thereof and pursuant to Article 3 of this Junior Indenture.
"Redemption Price", with respect to any Debentures of any series to be
redeemed, means the price at which such Debenture is to be redeemed in
accordance with the terms thereof and pursuant to Article 3 of this Junior
Indenture.
"Regular Record Date", with respect to an interest payment on any
Debentures of any series, means the date specified for the determination of
Holders entitled to receive payment of interest on the next succeeding Interest
Payment Date in accordance with the terms thereof or this Indenture.
"SEC" or "Commission" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Indebtedness" means, with respect to the Company, the principal of
(and premium, if any) and interest, if any (including interest accruing on or
after the filing of any petition in bankruptcy or for reorganization relating to
the Company whether or not such claim for post-petition interest is allowed in
such proceeding), on Indebtedness, whether incurred on or prior to the date of
this Indenture or thereafter incurred, unless, in the instrument creating or
evidencing the same or pursuant to which the same is outstanding, it is provided
that such obligations are not superior in right of payment to the Debentures or
to other Indebtedness which is pari passu with, or subordinated to, the
Debentures; provided, however, that Senior Indebtedness shall not be deemed to
include (i) any Indebtedness of the Company which, when incurred and without
respect to any election under Section 1111(b) of the Bankruptcy Code, was
without recourse to the Company, (ii) any Indebtedness of the Company to any of
its subsidiaries, (iii) Indebtedness to any employee of the
7
<PAGE>
Company, (iv) any liability for taxes, and (v) indebtedness or monetary
obligations to trade creditors or assumed by the Company or any of its
subsidiaries in the ordinary course of business in connection with the obtaining
of materials or services.
"Series 1998 Debentures" means any of the Company's 7.30% Junior
Subordinated Deferrable Interest Debentures, Series 1998 issued under this
Junior Indenture.
"Special Record Date" for the payment of any Defaulted Interest on the
Debentures of any series means the date determined pursuant to Section 2.03(c)
hereof.
"Stated Maturity Date", with respect to any Debenture or any installment of
principal thereof, means the date specified for such Debenture as the fixed date
on which the principal of such Debenture or such installment is due and payable,
as such date may be shortened or extended pursuant to the terms thereof or this
Indenture.
"Subsidiary" means any corporation, association, partnership, trust or
other business entity of which more than 50% of the total voting power of shares
of Capital Stock or other interests (including partnership interests) entitled
(without regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof is at the time owned or controlled,
directly or indirectly, by (i) the Company, (ii) the Company and one or more
Subsidiaries or (iii) one or more Subsidiaries.
"TIA" means the Trust Indenture Act of 1939, as amended and as in effect on
the date of this Junior Indenture; provided, however, that if the TIA is amended
after such date, TIA means, to the extent required by any such amendment, the
TIA as so amended.
"Trust" means any statutory business trust created by the Company to issue
Trust Securities and to use the proceeds from the sale thereof to purchase
Debentures.
"Trust Common Securities" means common securities of a Trust, representing
undivided beneficial interests, excluding the interests represented by Trust
Preferred Securities, in the assets of such Trust.
"Trust II" means HECO Capital Trust II, a Delaware statutory business trust
created under the Delaware Business Trust Act, Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C. (S) 3801, et seq.
8
<PAGE>
"Trust II Agreement" means the Amended and Restated Trust Agreement dated
as of December 1, 1998, among the Company, as depositor, the Property Trustee
II, the Delaware Trustee II and the Administrative Trustees named therein and
the holders, from time to time, of undivided beneficial interests in the assets
of Trust II, as the same may be amended and modified from time to time.
"Trust II Common Securities" means the Trust Common Securities of Trust II,
representing the undivided beneficial interests, excluding the interests
represented by Trust II Preferred Securities, in the assets of Trust II.
"Trust II Guarantee Agreement" means the Trust Guarantee Agreement dated as
of December 1, 1998 from HECO, as guarantor, to The Bank of New York, as Trust
Guarantee Trustee, with respect to the Trust II Preferred Securities.
"Trust II Preferred Securities" means the Trust Preferred Securities of
Trust II, representing the undivided preferred beneficial interests, with
certain preferences, in the assets of Trust II, having a liquidation preference
of $25 per security and having rights provided therefor in the Trust II
Agreement.
"Trust Officer", when used with respect to the Trustee, means any Vice
President, any Assistant Vice President, any trust officer, or assistant trust
officer or any other officer of the corporate trust department of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of that
officer's knowledge of and familiarity with the particular subject.
"Trust Preferred Securities" means preferred securities of a Trust,
representing undivided beneficial interests in the assets of such Trust with a
preference under certain circumstances with respect to cash distributions and
amounts payable on liquidation, redemption or otherwise.
"Trust Securities" means the undivided beneficial interests in the assets
of a Trust.
"Trustee" means The Bank of New York, solely in its capacity as Trustee
under this Junior Indenture, unless and until a successor replaces it pursuant
to the applicable provisions of this Junior Indenture and, thereafter, shall
mean such successor.
"U.S. Government Obligations" means direct obligations (or certificates
representing an ownership interest in such obligations) of the United States of
America (including any
9
<PAGE>
agency or instrumentality thereof) for the payment of which the full faith and
credit of the United States of America is pledged and which are not callable at
the issuer's option.
SECTION 1.02. Other Definitions.
<TABLE>
<CAPTION>
TERM DEFINED IN SECTION
---- ------------------
<S> <C>
"Act".......................................... 1.05(a)
"Bankruptcy Law"............................... 6.01(c)
"Custodian".................................... 6.01(c)
"Defaulted Interest"........................... 2.03(c)
"Depository"................................... 2.12(a)
"Event of Default"............................. 6.01(a)
"Global Debenture"............................. 2.12(a)
"Legal Holiday"................................ 12.08
"Notice of Default"............................ 6.01(a)
"Registrar".................................... 2.05(a)
"Securities Register".......................... 2.05(a)
"Special Event"................................ 3.01(a)
"Successor".................................... 5.01(a)
</TABLE>
SECTION 1.03. Incorporation by Reference of Trust Indenture Act.
Whenever this Junior Indenture refers to a provision of the TIA, such
provision is incorporated by reference in and made a part of this Junior
Indenture. The following TIA terms used in this Junior Indenture have the
following meanings:
"Junior Indenture securities" means the Debentures.
"Junior Indenture security holder" means a Debentureholder or Holder.
"Junior Indenture to be qualified" means this Junior Indenture.
"Junior Indenture trustee" or "institutional trustee" means the
Trustee.
"Obligor" on the Junior Indenture securities means the Company and any
other obligor on the Debentures.
All other TIA terms used in this Junior Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rules have the
meanings assigned to them by such definitions.
10
<PAGE>
SECTION 1.04. Rules of Construction.
Unless the context otherwise requires:
(a) Each capitalized term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning assigned to
it in accordance with GAAP;
(c) "or" is not exclusive;
(d) "including" means including, without limitation;
(e) words in the singular include the plural, and words in the plural
include the singular; and
(f) "herein," "hereof" and other words of similar import refer to this
Junior Indenture as a whole and not to any particular Article, Section or
other subdivision.
SECTION 1.05. Acts of Holders and Holders of Trust Preferred Securities.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Junior Indenture to be given or taken by
Holders or by holders of Trust Preferred Securities may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Holders or holders of Trust Preferred Securities, as applicable, in person
or by an agent duly appointed in writing and, except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of Holders or holders of Trust Preferred Securities signing such
instrument or instruments. Proof of execution of any such instrument or of a
writing appointing any such agent shall be sufficient for any purpose of this
Junior Indenture and conclusive in favor of the Trustee and the Company, if made
in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any manner which the Trustee deems
sufficient.
(c) The ownership of Debentures shall be proved by the Securities
Register.
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(d) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Debenture shall bind every future Holder of
the same Debenture and the Holder of every Debenture issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Debenture.
(e) If the Company solicits from the Holders any request, demand,
authorization, direction, notice, consent, waiver or other Act, the Company may,
at its option, by or pursuant to a resolution of its Board of Directors, fix in
advance a Record Date for the determination of Holders entitled to give such
request, demand, authorization, direction, notice, consent, waiver or other Act,
but the Company shall have no obligation to do so. If such a Record Date is
fixed, such request, demand, authorization, direction, notice, consent, waiver
or other Act may be given before or after such Record Date, but only Holders of
record at the close of business on such Record Date shall be deemed to be
Holders for the purposes of determining whether Holders of the requisite
proportion of outstanding Debentures have authorized or agreed or consented to
such request, demand, authorization, direction, notice, consent, waiver or other
Act, and for that purpose the outstanding Debentures shall be computed as of
such Record Date.
ARTICLE 2. THE DEBENTURES; THE SERIES 1998 DEBENTURES
SECTION 2.01. Issue of Debentures Generally.
(a) The aggregate principal amount of any series of Debentures which may
be authenticated and delivered under this Junior Indenture is unlimited.
(b) The Debentures may be issued in one or more series as from time to
time shall be authorized by the Board of Directors pursuant to one or more
indentures supplemental hereto or Officer's Certificates authorized pursuant to
Board Resolutions. The Debentures of each series shall be pari passu with any
and all other notes, debentures and other evidences of indebtedness of the
Company that shall contain or have applicable thereto subordination provisions
substantially identical in effect to the subordination provisions set forth in
Section 10.01 hereof providing for such indebtedness being junior and
subordinate in right of payment to all Senior Indebtedness.
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(c) The Debentures of each series and the Trustee's Certificate of
Authentication shall be substantially in the form attached to this Junior
Indenture as Exhibit A or, in the case of any series other than the Series 1998
Debentures, substantially in the forms to be attached as exhibits to an
indenture supplemental hereto or an Officer's Certificate authorized pursuant to
a Board Resolution creating such series with such inclusions, omissions and
variations as to letters, years, numbers or other marks of identification or
designation and such legends or endorsements printed, lithographed or engraved
thereon as the Company may deem appropriate and as are not inconsistent with the
provisions of this Junior Indenture, or as may be required to comply with any
law or with any rule or regulation made pursuant thereto or with any rule or
regulation of any securities exchange on which such Debentures may be listed, or
to conform to usage.
(d) Other series of Debentures may differ from the Series 1998 Debentures,
and as and between series, in respect of any or all of the following matters:
(1) designation;
(2) Stated Maturity Date or Dates, which may be serial, and the
Company's option, if any, to shorten or extend the Stated Maturity Date or
Dates;
(3) interest rate or method of determination of the interest rate;
(4) the basis upon which interest shall be computed if other than a
360-day year composed of twelve 30-day months;
(5) Interest Payment Dates and Regular Record Dates therefor;
(6) the maximum duration of the Extension Period;
(7) Issue Date or Dates and interest accrual provisions;
(8) authorized denominations;
(9) the place or places for the payment of principal (and premium,
if any) and interest;
(10) the aggregate principal amount of Debentures of such series
which may be issued;
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(11) the optional and mandatory redemption provisions, if any;
(12) provisions, if any, for any sinking or analogous fund;
(13) the currency or currencies in which the principal of and
premium, if any, and interest on the Debentures may be paid by the Company;
(14) if the Debentures of any series will be issued as Global
Debentures pursuant to Section 2.12 hereof, the identity of the Depository
and any other terms relating thereto to the extent not set forth in Section
2.12 hereof; and
(15) any other provisions expressing or referring to the terms and
conditions upon which the Debentures of such series are to be issued under
this Junior Indenture which are not in conflict with the provisions of this
Junior Indenture;
in each case as determined by the Board of Directors and specified in an
indenture supplemental hereto or in an Officer's Certificate authorized pursuant
to a Board Resolution creating such series.
SECTION 2.02. Terms and Form of the Series 1998 Debentures.
(a) The Series 1998 Debentures shall be designated "Maui Electric Company,
Limited, 7.30% Junior Subordinated Deferrable Interest Debentures, Series 1998."
The Series 1998 Debentures and the Trustee's Certificate of Authentication shall
be substantially in the form of Exhibit A attached hereto. The Series 1998
Debentures shall initially be represented by a single certificate registered in
the name of The Bank of New York as Property Trustee II for the benefit of Trust
II. The terms and provisions contained in the Series 1998 Debentures shall
constitute, and are hereby expressly made, a part of this Junior Indenture. The
Company, the Trustee and the Guarantor, by their execution and delivery of this
Junior Indenture, expressly agree to such terms and provisions and to be bound
thereby.
(b) The Series 1998 Debentures shall be issued at 100% of their principal
amount.
(c) The aggregate principal amount of Series 1998 Debentures outstanding
at any time may not exceed $10,000,000, except as provided in Section 2.09
hereof. The Series 1998
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Debentures shall be authenticated and delivered upon receipt by the Trustee of
the items specified in Section 2.04(d) hereof.
(d) The Stated Maturity Date of the Series 1998 Debentures is December 15,
2028. Upon the shortening or extension of the fixed date on which the principal
of the HECO Series 1998 Debentures is due and payable pursuant to the HECO
Junior Indenture, the Stated Maturity Date for the Series 1998 Debentures shall
be shortened or extended at the same time for the same period as the HECO Series
1998 Debentures, without any action on the part of the Company or any other
Person.
(e) The interest rate for the Series 1998 Debentures is 7.30% per annum.
The Interest Payment Dates for the Series 1998 Debentures are March 31, June 30,
September 30 and December 31 of each year, commencing March 31, 1999. In the
event that any date on which interest is payable on the Series 1998 Debentures
is not a Business Day, then payment of the interest payable on such date will be
made on the next succeeding day that is a Business Day (and without any interest
or other payment in respect of any such delay), except that if such Business Day
is in the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day (without any reduction in interest or other
payments in respect of such early payment), in each case with the same force and
effect as if made on the date such payment was originally payable. The Regular
Record Date for each Interest Payment Date for the Series 1998 Debentures shall
be the close of business on the Business Day immediately preceding such Interest
Payment Date; provided that in the event that the Series 1998 Debentures are
issued in definitive form while they are not held by Trust II, the Regular
Record Date for each Interest Payment Date for the Series 1998 Debentures shall
be the close of business on the date that is 15 days prior to such Interest
Payment Date, whether or not such date is a Business Day.
(f) Each Series 1998 Debenture shall bear interest from its Issue Date or
from the most recent Interest Payment Date to which interest has been paid or
duly provided for with respect to such Series 1998 Debenture; except that, so
long as there is no existing Defaulted Interest or Extension Period on the
Series 1998 Debentures, any Series 1998 Debenture authenticated by the Trustee
between the Regular Record Date for any Interest Payment Date and such Interest
Payment Date shall bear interest from such Interest Payment Date.
(g) Defaulted Interest on any Series 1998 Debenture shall bear additional
interest at the rate per annum of 2% thereof compounded quarterly (to the extent
permitted by applicable law).
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(h) Overdue principal of any Series 1998 Debenture shall bear interest at
a rate per annum equal to the interest rate per annum payable on such Series
1998 Debenture.
(i) Interest on any Series 1998 Debenture which has been deferred pursuant
to Section 4.01(b) hereof shall bear interest (to the extent that the payment of
such interest shall be legally enforceable) at a rate per annum equal to the
interest rate per annum payable on such Series 1998 Debenture, compounded
quarterly from the most recent Interest Payment Date therefor.
(j) The Series 1998 Debentures shall be redeemable prior to maturity as
provided in Section 3.01(a) hereof.
(k) The Series 1998 Debentures shall be issuable only in registered form
without coupons and only in denominations of $25 and any integral multiple
thereof.
(l) The maximum Extension Period for the Series 1998 Debentures shall be
20 consecutive quarters.
(m) The Guarantee with respect to the Series 1998 Debentures shall
terminate as set forth in Section 11.11 hereof and, in addition, shall terminate
upon the distribution of the Distributable Debentures (as defined in the HECO
Junior Indenture) to the holders of the Trust II Preferred Securities.
SECTION 2.03. Payment of Principal and Interest.
(a) Unless otherwise specified pursuant to Section 2.01(d) hereof,
interest on the Debentures shall be computed on the basis of a 360-day year
composed of twelve 30-day months, except that for any period shorter than a full
calendar month, interest will be computed on the basis of the actual number of
days elapsed in such period.
(b) Unless otherwise provided with respect to a series of Debentures,
(1) the principal and Redemption Price of and interest on each
Debenture shall be payable 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;
(2) the principal and Redemption Price of any Debenture and
interest payable on the Stated Maturity Date (if other than an Interest
Payment Date) or Redemption Date shall be payable upon surrender of such
Debenture at the office or agency of any Paying Agent therefor;
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provided, however, that payments of such principal, Redemption Price or
interest in respect of the Series 1998 Debentures to Trust II as the sole
holder thereof or in respect of Global Debentures shall be made in
immediately available funds to Property Trustee II on behalf of Trust II or
to the Depository pursuant to Section 2.12 hereof, as the case may be; and
(3) interest on any Debenture (other than on the Stated Maturity
Date or Redemption Date) shall be paid on each Interest Payment Date
therefor to the Holder thereof at the close of business on the Regular
Record Date therefor, such interest to be payable at the option of the
Company by (i) check mailed to the address of the Person entitled thereto
as such address appears on the Securities Register or (ii) by transfer to
an account maintained by the person entitled thereto as specified in the
Securities Register; provided that proper and timely transfer instructions
have been received ten Business Days prior to the Regular Record Date;
provided however, that (aa) at the written request of the Holder of at
least $10,000,000 aggregate principal amount of Debentures received by the
Registrar not later than ten Business Days prior to the Regular Record Date
for such Interest Payment Date, such interest accrued on such Debenture
will be payable by wire transfer within the continental United States in
immediately available funds to the bank account number of such Holder
specified in such request and entered on the Securities Register by the
Registrar and (bb) payments of such interest made in respect of the Series
1998 Debentures to Trust I as the sole holder thereof or in respect of
Global Debentures shall be made in immediately available funds to Property
Trustee II on behalf of Trust II or the Depository pursuant to Section 2.12
hereof, as the case may be.
(c) Except as specified pursuant to Section 2.01 or Section 4.01(b)
hereof, interest on any Debenture which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person in
whose name that Debenture (or one or more Predecessor Debentures) is registered
at the close of business on the Regular Record Date for such interest. Any
interest (as used in this Indenture, the term "interest" shall include quarterly
interest payments, interest on quarterly interest payments not paid on the
applicable Interest Payment Date, and Additional Sums, as applicable) on any
Debenture which is payable, but is not punctually paid or duly provided for, on
any Interest Payment Date (herein called "Defaulted Interest") shall forthwith
cease to be payable to the Holder on the relevant Regular Record Date by virtue
of having been such Holder, and such Defaulted
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Interest may be paid by the Company, at its election in each case, as provided
in Clause (1) and (2) below:
(1) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Debentures (or their respective
Predecessor Debentures) are registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest, which shall
be fixed in the following manner. The Company shall, not less than 15
Business Days prior to the date of the proposed payment, notify the Trustee
and the Paying Agent in writing of the amount of Defaulted Interest
proposed to be paid on each Debenture and the date of the proposed payment,
and at the same time the Company shall deposit with the Paying Agent an
amount of money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements satisfactory
to the Paying Agent for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit of
the Persons entitled to such Defaulted Interest as in this Clause provided.
The Special Record Date for the payment of such Defaulted Interest shall be
the close of business on the tenth calendar day prior to the date of the
proposed payment. The Trustee shall, in the name and at the expense of the
Company, cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be given to the Holders thereof,
not less than 7 calendar days prior to such Special Record Date. Notice of
the proposed payment of such Defaulted Interest and the Special Record Date
therefor having been given, such Defaulted Interest shall be paid to the
Persons in whose names the Debentures (or their respective Predecessor
Debentures) are registered at the close of business on such Special Record
Date and shall no longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Debentures in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Debentures may be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee and the Paying Agent of the
proposed payment pursuant to this Clause, such manner of payment shall be
deemed practicable by the Paying Agent.
(d) Subject to the foregoing provisions of this Section, each Debenture
delivered under this Junior Indenture upon registration of transfer of or in
exchange for or in lieu of any other Debenture shall carry the rights to
interest accrued
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and unpaid, and to accrue, which were carried by such other Debenture.
SECTION 2.04. Execution, Authentication and Delivery.
(a) The Debentures shall be executed on behalf of the Company by any two
of its Chairman, its President, its Financial Vice President or any of its
Assistant Treasurers, under its corporate seal imprinted or reproduced thereon.
The signature of any such Officer on the Debentures may be manual or facsimile.
(b) Debentures bearing the manual or facsimile signatures of individuals
who were at any time the proper Officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Debentures or did not
hold such offices at the date of such Debentures.
(c) No Debenture shall be entitled to any benefit under this Junior
Indenture or be valid or obligatory for any purpose unless there appears on such
Debenture a Certificate of Authentication duly executed by the Trustee by manual
signature of an authorized signatory, and such Certificate of Authentication
upon any Debenture shall be conclusive evidence, and the only evidence, that
such Debenture has been duly authenticated and made available for delivery
hereunder.
(d) The Trustee shall authenticate and deliver Debentures of a series, for
original issue, at one time or from time to time in accordance with the Company
Order referred to below, upon receipt by the Trustee of:
(1) a Board Resolution approving the form or forms and terms of such
Debentures;
(2) a Company Order requesting the authentication and delivery of
such Debentures;
(3) unless previously delivered, this Junior Indenture, and, with
respect to each series of Debentures other than the Series 1998 Debentures,
an indenture supplemental hereto or an Officer's Certificate authorized
pursuant to a Board Resolution setting forth the form of such Debentures
and establishing the terms thereof;
(4) the Debentures of such series, executed on behalf of the Company
in accordance with Section 2.04(a) hereof;
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(5) an Officer's Certificate certifying that no Default or Event of
Default has occurred and is continuing; and
(6) an Opinion of Counsel to the effect that:
(A) the form or forms and the terms of such Debentures have been
duly authorized by the Company and have been established in conformity with
the provisions of this Junior Indenture; and
(B) such Debentures, when authenticated and delivered by the
Trustee and issued and delivered by the Company in the manner and subject
to any conditions specified in such Opinion of Counsel, will have been duly
issued under this Junior Indenture and will constitute valid and legally
binding obligations of the Company, entitled to the benefits provided by
this Junior Indenture, and enforceable against the Company in accordance
with their terms, subject, as to enforcement to laws relating to or
affecting generally the enforcement of creditors' rights, including,
without limitation, bankruptcy and insolvency laws and to general
principles of equity (whether considered in a proceeding in equity or at
law); and
(C) that this Junior Indenture or any supplemental Junior
Indenture referred to in clause (3) above has been duly authorized,
executed and delivered by the Company and is a valid instrument legally
binding upon the Company, enforceable against the Company in accordance
with its terms, subject as to enforcement to laws relating to or affecting
creditors' rights, including, without limitation, bankruptcy and insolvency
laws and to general principles of equity (whether considered in a
proceeding in equity or at law); and
(D) that all consents, approvals and orders of any commission,
governmental authority or agency required in connection with the issuance
and delivery of such Debentures have been obtained.
(e) The Trustee shall act as the initial authenticating agent.
Thereafter, the Trustee may appoint an authenticating agent. An authenticating
agent may authenticate Debentures whenever the Trustee may do so. Each
reference in this Junior Indenture to authentication by the Trustee includes
authentication by such agent. The Company shall pay any
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authenticating agent appointed by the Trustee reasonable compensation for its
services. The provisions set forth in Section 7.02, Section 7.03, Section 7.04
and Section 7.07 hereof shall be applicable to any authenticating agent.
(f) The Trustee shall have the right to decline to authenticate and
deliver any Debentures under this Section 2.04 if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken or if the Trustee
in good faith shall determine that such action would expose the Trustee to
personal liability to existing Holders.
SECTION 2.05. Registrar and Paying Agent.
(a) The Company shall maintain or cause to be maintained, within or
outside the State of New York, an office or agency where Debentures of any
series may be presented for registration of transfer or for exchange
("Registrar") for each place of payment for such series of Debentures, a Paying
Agent at whose office such series of Debentures may be presented or surrendered
for payment, and an office or agency where notices and demands to or upon the
Company in respect of the Debentures and this Junior Indenture may be served.
The Registrar shall keep a register (the "Securities Register") of such series
of Debentures and of their transfer and exchange. The Company may have one or
more co-Registrars and one or more additional Paying Agents. The term Registrar
includes any additional registrar and the term Paying Agent includes any
additional paying agent. The principal corporate trust office of the Trustee in
New York, New York, shall initially be the Registrar for the Series 1998
Debentures and agent for service of notice or demands on the Company, and the
Trustee shall initially be the Paying Agent for the Series 1998 Debentures.
(b) The Company shall enter into an appropriate agency agreement with any
Registrar, Paying Agent or co-Registrar (if not the Company or the Trustee or an
affiliate of the Trustee). The agreement shall implement the provisions of this
Junior Indenture that relate to such agent. The Company shall give prompt
written notice to the Trustee and to the Holders of any change of location of
such office or agency. If at any time the Company shall fail to maintain or
cause to be maintained any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the address of the Trustee set
forth in Section 12.02 hereof. The Company shall notify the Trustee of the name
and address of any such agent. If the Company fails to maintain a Registrar,
Paying Agent or agent for service of notices or demands, the Trustee shall act
as such and shall be entitled to appropriate compensation therefor pursuant to
Section 7.07 hereof. The
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Company or any Affiliate of the Company may act as Paying Agent, Registrar or
co-Registrar or agent for service of notices and demands.
(c) The Company may also from time to time designate one or more other
offices or agencies where Debentures of any series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations. The Company will give prompt written notice to the Trustee and to
the Holders of any such designation or rescission and of any change in location
of any such other office or agency.
SECTION 2.06. Paying Agent to Hold Money in Trust.
(a) Except as otherwise provided herein, prior to or on each due date of
the principal of and premium (if any) and interest on any Debenture, the Company
shall deposit with the Paying Agent a sum of money sufficient to pay such
principal, premium (if any) and interest so becoming due. The Company shall
require each Paying Agent (other than the Trustee or the Company) to agree in
writing that such Paying Agent shall hold in trust for the benefit of Holders or
the Trustee all money held by the Paying Agent for the payment of principal of
and premium (if any) and interest on the Debentures and shall notify the Trustee
of any Default by the Company in making any such payment. At any time during
the continuance of any such Default, the Paying Agent shall, upon the request of
the Trustee, forthwith pay to the Trustee all money so held in trust and account
for any money disbursed by it. The Company at any time may require a Paying
Agent to pay all money held by it to the Trustee and to account for any money
disbursed by it. Upon doing so, the Paying Agent shall have no further
liability for the money so paid over to the Trustee. If the Company, a
Subsidiary or an Affiliate of either of them acts as Paying Agent, it shall
segregate the money held by it as Paying Agent and hold it as a separate trust
fund.
(b) The Companies may at any time designate additional Paying Agents or
rescind the designation of any Paying Agent; however, the Companies shall at all
times be required to maintain a Paying Agent in each place of payment for any
series of Debentures.
(c) Any monies deposited with the Trustee or any Paying Agent, or then
held by the Company in trust, for the payment of the principal of and premium,
if any, or interest on any series of Debentures and remaining unclaimed for two
years after such principal, premium, if any, or interest has become due and
payable shall, at the written request of the Company, be repaid to the Company
and the Holder of such Debentures shall
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thereafter look, as a general unsecured creditor, only to the Company for
payment thereof.
SECTION 2.07. Debentureholder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Debentureholders. If the Trustee is not the Registrar, the Company shall cause
to be furnished to the Trustee on or before the Record Date for each Interest
Payment Date and at such other times as the Trustee may request in writing,
within five Business Days of such request, a list, in such form as the Trustee
may reasonably require of the names and addresses of Debentureholders.
SECTION 2.08. Transfer and Exchange.
(a) When Debentures are presented to the Registrar or a co- Registrar with
a request to register the transfer or to exchange them for an equal aggregate
principal amount of Debentures of the same series of other authorized
denominations having the same date of original issuance and Stated Maturity Date
and bearing the same interest rate, the Registrar shall register the transfer or
make the exchange as requested if its reasonable requirements for such
transactions are met. To permit registrations of transfer and exchanges, the
Company shall execute and the Trustee shall authenticate Debentures, all at the
Registrar's request.
(b) Every Debenture presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company or the Registrar) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Registrar duly executed by the Holder or his attorney duly
authorized in writing.
(c) The Company shall not require payment of a service charge for any
registration of transfer or exchange of Debentures, but the Company may require
payment of a sum sufficient to pay all taxes, assessments or other governmental
charges that may be imposed in connection with the registration of the transfer
or exchange of Debentures from the Debentureholder requesting such transfer or
exchange (other than any exchange of a temporary Debenture for a definitive
Debenture not involving any change in ownership).
(d) In the event of any redemption, (i) the Company shall not be required
to issue any Debenture or to make, and the Registrar need not register,
transfers or exchanges of any Debenture for a period beginning at the opening of
business 15 days before the mailing of a notice of redemption of Debentures
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and ending at the close of business on the day of such mailing or (ii) the
Company shall not be required to make, and the Registrar need not register,
transfers or exchanges of any Debenture selected, called or being called for
redemption, except, in the case of any Debenture to be redeemed in part, the
portion thereof not to be redeemed.
SECTION 2.09. Replacement Debentures.
(a) If (i) any mutilated Debenture is surrendered to the Company or the
Trustee, or (ii) the Company and the Trustee receive evidence to their
satisfaction of the destruction, loss or theft of any Debenture, and there is
delivered to the Company and the Trustee such bond or indemnity as may be
required by them to save each of them harmless, then, in the absence of notice
to the Company or the Trustee that such Debenture has been acquired by a bona
fide purchaser, the Company shall execute in exchange for any such mutilated
Debenture or in lieu of any such destroyed, lost or stolen Debenture, a new
Debenture of the same series and of like tenor and principal amount, bearing a
number not contemporaneously outstanding, and the Trustee shall authenticate and
make such new Debenture available for delivery.
(b) In case any such mutilated, destroyed, lost or stolen Debenture has
become or is about to become due and payable, or is about to be redeemed by the
Company pursuant to Article 3 hereof, the Company in its discretion may, instead
of issuing a new Debenture, pay or purchase such Debenture, as the case may be.
(c) Upon the issuance of any new Debentures under this Section 2.09, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) in connection
therewith.
(d) Every new Debenture issued pursuant to this Section 2.09 in lieu of
any mutilated, destroyed, lost or stolen Debenture shall constitute an original
additional contractual obligation of the Company (whether or not the mutilated,
destroyed, lost or stolen Debenture shall be at any time enforceable) and shall
be entitled to all benefits of this Junior Indenture equally and ratably with
any and all other Debentures duly issued hereunder.
(e) The provisions of this Section 2.09 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Debentures.
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SECTION 2.10. Outstanding Debentures; Determinations of Holders' Action.
(a) Debentures outstanding at any time are all the Debentures
authenticated by the Trustee except for those canceled by it, those delivered to
it for cancellation, those mutilated, destroyed, lost or stolen Debentures
referred to in Section 2.09 hereof, those redeemed by the Company pursuant to
Article 3 hereof, and those described in this Section 2.10 as not outstanding.
A Debenture does not cease to be outstanding because the Company or an Affiliate
thereof holds the Debenture; provided, however, that in determining whether the
Holders of the requisite principal amount of Debentures have given or concurred
in any request, demand, authorization, direction, notice, consent or waiver
hereunder, Debentures actually known by the Trustee to be owned by the Company
or an Affiliate (other than any Trust so long as any of the Trust Preferred
Securities of such Trust are outstanding) shall be disregarded and deemed not to
be outstanding.
(b) Subject to the foregoing, only Debentures outstanding at the time of
such determination shall be considered in any such determination (including
determinations pursuant to Articles 3, 6 and 9).
(c) If a Debenture is replaced pursuant to Section 2.09 hereof, it ceases
to be outstanding unless the Trustee receives proof satisfactory to it that the
replaced Debenture is held by a bona fide purchaser.
(d) If the Paying Agent (other than the Company) holds, in accordance with
this Junior Indenture, at the Stated Maturity Date or on a Redemption Date,
money sufficient to pay the Debentures payable on that date, then immediately on
the Stated Maturity Date or such Redemption Date, as the case may be, such
Debentures shall cease to be outstanding, and interest, if any, on such
Debentures shall cease to accrue.
SECTION 2.11. Temporary Debentures.
(a) The Company may execute temporary Debentures, and upon the Company's
Order, the Trustee shall authenticate and make such temporary Debentures
available for delivery. Temporary Debentures shall be printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
in the same series and principal amount and of like tenor as the definitive
Debentures in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the Officers of the
Company executing such Debentures may determine, as conclusively evidenced by
their execution of such Debentures.
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(b) After the preparation of definitive Debentures, the temporary
Debentures shall be exchangeable for definitive Debentures of the same series
upon surrender of the temporary Debentures at the office or agency of the
Company designated for such purpose pursuant to Section 2.05 hereof, without
charge to the Holders thereof. Upon surrender for cancellation of any one or
more temporary Debentures, the Company shall execute a like principal amount of
definitive Debentures of the same series of authorized denominations, and the
Trustee, upon receipt of a Company Order, shall authenticate and make such
Debentures available for delivery in exchange therefor. Until so exchanged, the
temporary Debentures shall in all respects be entitled to the same benefits
under this Junior Indenture as definitive Debentures.
SECTION 2.12. Book-Entry System.
(a) In order to utilize a book-entry-only system for all or any portion of
the Debentures of any series, all or a portion of the Debentures of any series
may be issued in the form of one or more fully registered Debentures of the same
series for the aggregate principal amount of such Debentures of each Issue Date,
interest rate and Stated Maturity Date (a "Global Debenture"), which Global
Debenture shall be registered in the name of a depository (the "Depository")
selected by the Company or in the name of such Depository's nominee. Each
Global Debenture shall be delivered by the Trustee to the Depository or pursuant
to the Depository's instruction and shall bear a legend substantially to the
following effect: "Except as otherwise provided in Section 2.12 of the Junior
Indenture, this Debenture may be transferred, in whole but not in part, only to
another nominee of the Depository or to a successor Depository or to a nominee
of such successor Depository."
(b) Notwithstanding any other provision of this Section 2.12 or of Section
2.08 hereof, a Global Debenture may be transferred in whole but not in part and
in the manner provided in Section 2.08 hereof only to a nominee of such
Depository or by a nominee of such Depository to such Depository or another
nominee of such Depository or by the Depository or any nominee to a successor
Depository or any nominee of such successor.
(c) So long as the Depository for a Global Debenture, or its nominee, is
the registered owner of such Global Debenture, such Depository or such nominee,
as the case may be, shall be considered the sole owner or Holder of the
Debenture represented by such Global Debenture for all purposes under this
Indenture. Except as provided below, owners of beneficial interests in a Global
Debenture shall not be entitled to have any of the individual Debentures of the
series represented by
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such Global Debenture registered in their names, shall not receive or be
entitled to receive physical delivery of any such Debenture in definitive form
and shall not be considered the owners or Holders thereof under this Indenture.
(d) Payments of principal of and premium, if any, and interest on
individual Debentures represented by a Global Debenture registered in the name
of a Depository or its nominee shall be made to the Depository or its nominee,
as the case may be, as the registered owner of the Global Debenture representing
such Debentures. None of the Company, the Trustee, any Paying Agent or the
Registrar for such Debenture shall have any responsibility or liability for any
aspect of the records relating to or payments made on account of beneficial
ownership interests of the Global Debenture representing such Debenture or for
maintaining, supervising or reviewing any records relating to such beneficial
ownership interests.
(e) If (i) at any time the Depository for Global Debentures of any series
of Debentures notifies the Company that it is unwilling or unable to continue as
Depository for such Global Debentures and no successor depository shall have
been appointed within 90 days after the Company receives such notice, or if at
any time the Depository ceases to be a clearing agency registered under the
Exchange Act or other applicable statute or regulation at a time when the
Depository is required to be so registered to act as such depository, (ii) the
Company determines in its sole discretion, that the Debentures of any series
shall no longer be represented by one or more Global Debentures and delivers to
the Trustee an Officer's Certificate evidencing such determination, or (iii) an
Event of Default with respect to such Global Debenture occurs and is continuing,
then the provisions of this Section 2.12 shall no longer apply to the Debentures
of such series. In such event, the Company will execute and the Trustee, upon
receipt of an Officer's Certificate evidencing such determination by the
Company, will authenticate and deliver Debentures of such series and of like
tenor in definitive registered form, in authorized denominations, and in
aggregate principal amount equal to the principal amount of the Global
Debentures of such series in exchange for such Global Debentures. Upon the
exchange of Global Debentures for such Debentures in definitive registered form
without coupons, in authorized denominations, the Global Debentures shall be
canceled by the Trustee. Such Debentures in definitive registered form issued in
exchange for Global Debentures pursuant to this Section 2.12 shall be registered
in such names and in such authorized denominations as the Depository, pursuant
to instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The
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Trustee shall deliver such Debentures to the Persons in whose names such
Debentures are so registered.
(f) Members of or participants in the Depository shall have no rights
under this Junior Indenture with respect to any Global Debenture held on their
behalf by the Depository, and such Depository or its nominee, as the case may
be, may be treated by the Company, the Trustee, and any agent of the Company or
the Trustee as the Holder of such Global Debentures for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Trustee, or any agent of the Company or the Trustee, from giving effect to any
written certification, proxy or other authorization furnished by the Depository
or impair, as between the Depository and its members or participants, the
operation of customary practices governing exercise of the rights of a Holder of
any Debenture, including without limitation the granting of proxies or other
authorization of participants to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action which a Holder
is entitled to give or take under this Junior Indenture.
SECTION 2.13. Cancellation.
All Debentures surrendered for payment, redemption by the Company pursuant
to Article 3 hereof or registration of transfer or exchange shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly canceled by the Trustee. The Company may at any time
deliver to the Trustee for cancellation any Debentures previously authenticated
and made available for delivery hereunder which the Company may have acquired in
any manner whatsoever, and all Debentures so delivered shall be promptly
canceled by the Trustee. The Company may not reissue or issue new Debentures to
replace Debentures it has paid or delivered to the Trustee for cancellation. No
Debentures shall be authenticated in lieu of or in exchange for any Debentures
canceled as provided in this Section 2.13, except as expressly permitted by this
Junior Indenture. All canceled Debentures held by the Trustee shall be returned
by the Trustee to the Company.
SECTION 2.14. CUSIP Numbers.
The Company in issuing any series of Debentures may use "CUSIP" numbers (if
then generally in use), and, if so, the Trustee shall use "CUSIP" numbers in
notices of redemption as a convenience to Holders; provided that any such notice
may state that no representation is made as to the correctness of such numbers
either as printed on such series of Debentures or as contained in any notice of
redemption and that reliance may be
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placed only on the other identification numbers printed on such series of
Debentures, and any such redemption shall not be affected by any defect in or
omission of such numbers. The Company will promptly notify the Trustee of any
change in the CUSIP numbers.
ARTICLE 3. REDEMPTION
SECTION 3.01. Redemption; Notice to Trustee.
(a) At any time on or after December 15, 2003, at the option of the
Company, the Series 1998 Debentures shall be redeemable in whole or in part.
Notwithstanding the foregoing, if a Special Event (as defined in the HECO Junior
Indenture) shall occur and be continuing, then, if HECO opts to redeem the HECO
Series 1998 Debentures pursuant to the HECO Junior Indenture, the Series 1998
Debentures shall be redeemable in whole (but not in part), on the same terms and
at the same time as the HECO Series 1998 Debentures. In the case of any
redemption, the Series 1998 Debentures shall be redeemable at 100% of the
principal amount thereof plus accrued and unpaid interest to the Redemption
Date. The Series 1998 Debentures shall not be subject to any sinking fund.
Series 1998 Debentures in denominations larger than $25 may be redeemed in part
but only in integral multiples of $25.
(b) The redemption terms for any additional series of Debentures shall be
as specified in an indenture supplemental hereto or in an Officer's Certificate
authorized by a Board Resolution creating such series of Debentures.
(c) If any or all of the Debentures are to be redeemed pursuant to Section
3.01 (a) or (b) hereof, the Company shall deliver to the Trustee at least 45
days prior to the Redemption Date a Company Order specifying the series and
principal amount of Debentures to be redeemed and the Redemption Date and
Redemption Price for such Debentures. Such Company Order shall be accompanied
by a Board Resolution authorizing such redemption. If the Debentures of a
series are held by a Trust, the Company shall also deliver a copy of such
Company Order to the Property Trustee for such Trust.
SECTION 3.02. Selection of Debentures to be Redeemed.
If less than all the outstanding Debentures of a series are to be redeemed
at any time, the Trustee shall select the Debentures of such series to be
redeemed by lot or by any other method the Trustee considers fair and
appropriate. The Trustee shall make the selection at least 30 but not more than
60 days before the Redemption Date from outstanding Debentures of such
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series not previously called for redemption. Provisions of this Junior Indenture
that apply to Debentures called for redemption also apply to portions of
Debentures called for redemption. The Trustee shall notify the Company promptly
of the Debentures or portions of Debentures to be redeemed.
SECTION 3.03. Notice of Redemption.
(a) At least 30 days but not more than 60 days before the Redemption Date,
the Trustee, in the Company's name and at the Company's expense, shall mail or
cause to be mailed a notice of redemption by first-class mail, postage prepaid,
to each Holder of Debentures to be redeemed at such Holder's last address as it
appears in the Securities Register.
(b) The notice of redemption shall identify the Debentures to be redeemed,
the provision of the Debentures or this Junior Indenture pursuant to which the
Debentures called for redemption are being redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) the name and address of the Paying Agent;
(4) that payment of the Redemption Price of Debentures called for
redemption will be made only upon surrender of such Debentures to the
Paying Agent;
(5) if fewer than all the outstanding Debentures of any series are to
be redeemed, the identification and principal amounts of the particular
Debentures to be redeemed and that, on and after the Redemption Date, upon
surrender of such Debentures, a new Debenture or Debentures of the same
series and of like tenor and in a principal amount equal to the unredeemed
portion thereof will be issued; and
(6) that, unless the Company defaults in paying the Redemption Price
of the Debentures called for redemption, plus accrued interest thereon to
the Redemption Date, interest will cease to accrue on such Debentures on
and after the Redemption Date.
(c) Any notice of redemption given in the manner provided herein shall be
conclusively presumed to have been given, whether or not such notice is actually
received. Failure to mail any notice or defect in the mailed notice or the
mailing thereof in respect of any Debenture shall not affect the validity of the
redemption of any other Debenture.
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SECTION 3.04. Effect of Notice of Redemption.
After notice of redemption has been given, Debentures called for redemption
shall become due and payable on the Redemption Date and at the Redemption Price
and from and after the Redemption Date (unless the Company shall default in the
payment of the Redemption Price and accrued interest, in which event interest
shall continue to accrue at the same rate until the Redemption Price is paid in
full), such Debentures shall cease to bear interest. Upon the later of the
Redemption Date and the date such Debentures are surrendered to the Paying
Agent, such Debentures shall be paid at the Redemption Price, plus accrued
interest to the Redemption Date; provided that installments of interest on
Debentures with an Interest Payment Date which is on or prior to the Redemption
Date shall be payable to the Holders of such Debentures, or one or more
Predecessor Debentures, registered as such at the close of business on the
Regular Record Dates therefor according to their terms and provisions.
SECTION 3.05. Deposit of Redemption Price.
On or prior to the Redemption Date, the Company shall deposit with the
Paying Agent (or if the Company or an Affiliate is the Paying Agent, shall
segregate and hold in trust or cause such Affiliate to segregate and hold in
trust) money sufficient to pay the Redemption Price of, and accrued interest on,
all Debentures to be redeemed on that Redemption Date. The Paying Agent shall
return to the Company any money in excess of the amount sufficient to pay the
Redemption Price of, and accrued interest on, all Debentures to be redeemed.
SECTION 3.06. Debentures Redeemed in Part.
Upon surrender of a Debenture that is redeemed in part, the Trustee shall
authenticate for the Holder a new Debenture of the same series and in a
principal amount equal to the unredeemed portion of such Debenture.
ARTICLE 4. COVENANTS
SECTION 4.01. Payment of Debentures.
(a) The Company shall pay the principal of and premium, if any, and
interest (including interest accruing during an Extension Period and/or on or
after the filing of a petition in bankruptcy or reorganization relating to the
Company, whether or not a claim for post-filing interest is allowed in such
proceeding) on the Debentures on or prior to the dates and in the manner
provided in such Debentures or pursuant to this Junior Indenture. An
installment of principal, premium, if any, or interest shall be considered paid
on the applicable due
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date if on such date the Trustee or the Paying Agent holds, in accordance with
this Junior Indenture, money sufficient to pay all of such installment then due.
With respect to any Debenture, the Company shall pay interest on overdue
principal and interest on overdue installments of interest (including interest
accruing during an Extension Period and/or on or after the filing of a petition
in bankruptcy or reorganization relating to the Company, whether or not a claim
for post-filing interest is allowed in such proceeding), to the extent lawful,
at the rate per annum borne by such Debenture, compounded quarterly. Interest on
overdue interest shall accrue from the date such amounts become overdue.
(b) Notwithstanding the provisions of Section 4.01(a) hereof or any other
provision herein to the contrary, the Company shall have the right in its sole
and absolute discretion at any time and from time to time while the Debentures
of any series are outstanding, so long as no Event of Default with respect to
such series of Debentures has occurred and is continuing, to defer payments of
interest by extending the interest payment period for such series of Debentures
for the Extension Period specified pursuant to Section 2.01 hereof for such
series of Debentures; provided that such Extension Period shall not extend
beyond the Stated Maturity Date or Redemption Date of any Debenture of such
series, and provided further that at the end of each Extension Period the
Company shall pay all amounts then due on any Interest Payment Date, including
interest then accrued and unpaid (together with interest thereon to the extent
permitted by applicable law at the rate per annum provided for such interest for
such series of Debentures). Prior to the termination of an Extension Period, the
Company may shorten or may further extend the interest payment period for such
series of Debentures; provided that any such further extension of the Extension
Period, together with all previous extensions thereof, may not exceed the
maximum duration of the Extension Period for such series of Debentures specified
pursuant to Section 2.01 hereof or extend beyond the Stated Maturity Date or
Redemption Date of any Debenture of such series. The Company shall give the
Trustee notice of the Company's election to begin an Extension Period for any
series of Debentures and any shortening or extension thereof at least one
Business Day prior to the date the notice of the record or payment date of the
related distribution on the Trust Preferred Securities issued by any Trust which
is the Holder of the Debentures of such series or the date payment of interest
on such Debentures is required to be given to any national securities exchange
on which such Trust Preferred Securities or Debentures are then listed or other
applicable self-regulatory organization, but in any event not less than two
Business Days prior to the Record Date fixed by the Company for the payment of
such interest.
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The Company shall give or cause the Trustee to give notice (a form of which
shall be provided by the Company to the Trustee) of the Company's election to
begin an Extension Period to the Holders by first-class mail, postage prepaid.
Upon the termination of any such Extension Period and the payment of all amounts
then due on any Interest Payment Date, the Company may elect to begin a new
Extension Period subject to the requirements set forth herein.
SECTION 4.02. Prohibition on Distributions, Etc.
The Company shall not, either directly or indirectly through a Subsidiary,
(i) declare or pay any dividends or distributions on, or redeem, purchase,
acquire or make a liquidation payment with respect to, any of its Capital Stock,
(ii) make any payment of principal, interest or premium, if any, on or repay,
repurchase or redeem any of its debt securities (including other Debentures)
that rank pari passu with or junior in interest to any series of Debentures, or
(iii) make any guarantee payments with respect to any guarantee issued by the
Company if such guarantee ranks pari passu with or junior in interest to such
series of Debentures (other than (a) dividends or distributions in shares of, or
options, warrants or rights to subscribe for or purchase shares of its common
stock and exchanges or conversions of common stock of one class for common stock
of another class, and (b) purchases by the Company of its common stock required
to prevent the loss or secure the renewal or reinstatement of any government
license or franchise held by the Company) if at such time (i) there shall have
occurred any event of which the Company has actual knowledge that (a) with the
giving of notice or the lapse of time, or both, would constitute an Event of
Default with respect to such series of Debentures and (b) in respect of which
the Company shall not have taken reasonable steps to cure in accordance with
this Junior Indenture, or (ii) the Company shall have given notice of its
election of an Extension Period for such Debentures and shall not have rescinded
such notice, or such Extension Period, or any extension thereof, shall be
continuing.
SECTION 4.03. SEC Reports.
(a) The Company shall file with the Trustee, within 15 days after it files
them with the SEC, copies of its annual report and of the information, documents
and other reports (or copies of such portions of any of the foregoing as the SEC
may by rules and regulations prescribe) which the Company is required to file
with the SEC pursuant to Section 13 or 15(d) of the Exchange Act. If the Company
is not subject to the reporting requirements of Section 13 or 15(d) of the
Exchange Act, the Company shall file with the Trustee such information,
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documents and other reports (or copies of such portions of any of the foregoing
as the SEC may by rules and regulations prescribe) which are specified in
Sections 13 or 15(d) of the Exchange Act; provided, however, that this
requirement shall be satisfied if HECO files reports with the SEC that include
the operations of the Company on a consolidated basis. The Company shall also
comply with the provisions of Section 314(a) of the TIA.
(b) Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officer's Certificates).
SECTION 4.04. Compliance Certificates.
(a) The Company shall deliver to the Trustee, within 90 days after the end
of each of the Company's fiscal years, commencing with the Company's fiscal year
ending December 31, 1998, an Officer's Certificate stating whether or not the
signer knows of any Default or Event of Default. Such certificate shall contain
a certification from the principal executive officer, principal financial
officer or principal accounting officer of the Company as to his or her
knowledge of the Company's compliance with all conditions and covenants under
this Junior Indenture. For purposes of this Section 4.04(a), such compliance
shall be determined without regard to any period of grace or requirement of
notice provided under this Junior Indenture. If such Officer does know of such a
Default or Event of Default, the Officer's Certificate shall describe any such
Default or Event of Default, and its status. Such Officer's Certificate need not
comply with Sections 12.04 and 12.05 hereof.
(b) The Company shall deliver to the Trustee any information reasonably
requested by the Trustee in connection with the compliance by the Trustee or the
Company with the TIA.
(c) The Company shall deliver to the Trustee, as soon as possible and in
any event within five days after the Company becomes aware of the occurrence of
any Event of Default or an event which, with notice or the lapse of time or
both, would constitute an Event of Default, an Officer's Certificate setting
forth the details of such Event of Default or default and the action that the
Company proposes to take with respect thereto.
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SECTION 4.05. Further Instruments and Acts.
Upon request of the Trustee, the Company shall execute and deliver such
further instruments and do such further acts as may be reasonably necessary or
proper to carry out more effectively the purposes of this Junior Indenture.
SECTION 4.06. Additional Sums.
If and so long as a Trust is the Holder of all Debentures of a particular
series, the Company shall pay to such Trust such Additional Sums on the
Debentures of such series in proportion to the amount of assets of such Trust
made up by the Debentures of such series.
SECTION 4.07. Payment of Expenses of Trust.
If and so long as a Trust is the Holder of all Debentures of a particular
series, the Company covenants for the benefit of the Holders of such Debentures
to pay all of the obligations, costs and expenses of such Trust in accordance
with the terms of the trust agreement for said Trust and to pay the taxes of
said Trust (if any) in accordance with the terms of said trust agreement in
order to permit said Trust to make distributions on and redemptions of the
applicable Trust Preferred Securities in accordance with the terms of said trust
agreement.
SECTION 4.08. Ownership of Trust Common Securities.
If and so long as a Trust is the Holder of all Debentures of a particular
series, the Company shall (i) maintain, directly or indirectly, 100% ownership
of said Trust's Trust Common Securities; provided that certain successors to the
Company which are permitted as provided below may succeed to the Company's
ownership of said Trust Common Securities, (ii) not voluntarily dissolve, wind-
up or liquidate said Trust, except (a) in connection with a distribution of said
Debentures to the holders of said Trust's Trust Preferred Securities in
liquidation of said Trust or (b) in connection with certain mergers,
consolidations or amalgamations as permitted by said Trust's trust agreement,
and (iii) use its reasonable efforts, consistent with the terms and provisions
of said trust agreement, to cause said Trust to remain classified as a grantor
trust and not as an association taxable as a corporation for United States
federal income tax purposes.
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ARTICLE 5. SUCCESSOR CORPORATION
SECTION 5.01. When the Company May Merge, Etc.
(a) The Company may not consolidate with or merge with or into, or sell,
convey, transfer or lease its properties and assets as an entirety or
substantially as an entirety (either in one transaction or a series of
transactions) to any Person and no Person shall consolidate or merge with or
into the Company, or sell, convey, transfer or lease its properties and assets
as an entirety or substantially as an entirety (either in one transaction or a
series of transactions) to the Company unless:
(1) the Person formed by or surviving such consolidation or merger or
to which such sale, conveyance, transfer or lease shall have been made (the
"Successor") if other than the Company, (i) is organized under the laws of
the United States of America or any state thereof or the District of
Columbia, and (ii) shall expressly assume by a supplemental Junior
Indenture, executed and delivered to the Trustee, in form satisfactory to
the Trustee, all the obligations of the Company under the Debentures and
this Junior Indenture;
(2) immediately prior to and after giving effect to such transaction
(and treating any Indebtedness which becomes an obligation of the Successor
Person as a result of such transaction as having been incurred by such
Person at the time of such transaction), no Default or Event of Default,
and no event which, after notice or lapse of time or both, would become an
Event of Default, shall have occurred and be continuing;
(3) such transaction is permitted under the Trust II Agreement (if
applicable) and does not give rise to a breach or violation of the Trust II
Agreement (if applicable); and
(4) the Company delivers to the Trustee an Officer's Certificate and
an Opinion of Counsel, each stating that such consolidation, merger, sale,
conveyance, transfer or lease and such supplemental Junior Indenture
complies with this Junior Indenture.
(b) The Successor will be the successor to the Company, and will be
substituted for, and may exercise every right and power and become the obligor
on the Debentures, with the same effect as if the Successor had been named as
the Company herein but, in the case of a sale, conveyance, transfer or lease of
all or substantially all of the assets of the Company, the
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predecessor Company will not be released from its obligation to pay the
principal of and premium, if any, and interest on the Debentures.
ARTICLE 6. DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default.
(a) An "Event of Default" occurs with respect to the Debentures of any
series if one of the following shall have occurred and be continuing:
(1) The Company defaults in the payment, when due and payable, of (i)
interest on any Debenture of that series and the default continues for a
period of 30 days; provided, that during an Extension Period for the
Debentures of that series, failure to pay interest on the Debentures of
that series shall not constitute a Default or Event of Default hereunder,
or (ii) the principal of or premium, if any, on any Debentures of that
series when the same becomes due and payable on the Stated Maturity Date
thereof, upon acceleration, on any Redemption Date, or otherwise;
(2) The Company defaults in the performance of or fails to comply
with, in a material respect, any of its other covenants or agreements in
the Debentures of that series or this Junior Indenture or in any indenture
supplemental hereto or Officer's Certificate authorized by a Board
Resolution under which the Debentures of that series may have been issued
(other than a covenant or agreement which has been expressly included in
this Indenture solely for the benefit of one or more series of Debentures
other than such series) and such failure continues for 90 days after
receipt by the Company of a written "Notice of Default"; provided that such
90-day period shall be automatically extended if corrective action is
initiated by the Company within such period and is being diligently
pursued;
(3) The Company or HECO, pursuant to or within the meaning of any
Bankruptcy Law:
(A) commences a voluntary case or proceeding;
(B) consents to the entry of an order for relief against it in
an involuntary case or proceeding;
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(C) consents to the appointment of a Custodian of it or for all
or substantially all of its property, and such Custodian is not
discharged within 60 days;
(D) makes a general assignment for the benefit of its creditors;
or
(E) admits in writing its inability to pay its debts generally
as they become due; or
(4) A court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(A) is for relief against the Company or HECO in an involuntary
case or proceeding;
(B) appoints a Custodian of the Company or HECO for all or
substantially all of its properties;
(C) orders the liquidation of the Company or HECO; and
(D) in each case the order or decree remains unstayed and in
effect for 60 days.
(b) The foregoing will constitute an Event of Default whatever the reason
for any such Event of Default and whether it is voluntary or involuntary or is
effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body.
(c) The term "Bankruptcy Law" means Title 11 of the United States Code, or
any similar federal or state law for the relief of debtors. "Custodian" means
any receiver, trustee, assignee, liquidator, sequestrator, custodian or similar
official under any Bankruptcy Law.
(d) A Default under clause (2) above is not an Event of Default until (i)
the Trustee provides a written "Notice of Default" to the Company or the
Holders of at least 25% in aggregate principal amount of the Debentures of that
series at the time outstanding or, if that series of Debentures is held by a
Trust, the holders of at least 25% in aggregate liquidation preference of the
outstanding Trust Preferred Securities of that Trust, provide a written "Notice
of Default" to the Company and the Trustee and (ii) the Company does not cure
such Default within the time specified in clause (2) above (including any
automatic extensions thereof) after receipt of such notice. Any such notice must
be in writing, specify the
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Default, demand that it be remedied and state that such notice is a "Notice of
Default."
SECTION 6.02. Acceleration.
(a) If any Event of Default with respect to the Debentures of any series
other than an Event of Default under clause (3) or (4) of Section 6.01 hereof
occurs and is continuing, the Trustee or the Holders of at least 25% in
aggregate principal amount of the Debentures of that series then outstanding may
declare the principal of all the Debentures of that series due and payable;
provided that in the case of a series of Debentures then held by a Trust, if
upon an Event of Default with respect to the Debentures of that series the
Trustee has, or the Holders of at least 25% in aggregate principal amount of the
Debentures of that series have, failed to declare the principal of the
Debentures of that series to be immediately due and payable, the holders of at
least 25% in aggregate liquidation preference of the outstanding Trust Preferred
Securities of that Trust shall have such right by a notice in writing to the
Company and the Trustee. If an Event of Default specified in clause (3) or (4)
of Section 6.01 hereof occurs, the principal of and interest on all the
Debentures shall ipso facto become and be immediately due and payable without
any declaration or other act on the part of the Trustee or any Debentureholders.
Upon such an acceleration, such principal, together with all interest accrued
thereon, shall be due and payable immediately.
(b) The Holders of at least a majority in aggregate principal amount of
the Debentures of that series at the time outstanding, in each case, by notice
to the Trustee, may rescind and annul such an acceleration and waive its
consequences if the rescission, annulment and waiver would not conflict with any
judgment or decree and if all existing Events of Default with respect to such
series of Debentures have been cured or waived, except nonpayment of principal
that has become due solely because of acceleration, and a sum sufficient to pay
all matured installments of interest and principal due otherwise than by
acceleration has been deposited with the Trustee; provided that if the principal
of a series of Debentures has been declared due and payable by the holders of
the Trust Preferred Securities of a Trust, no rescission of acceleration will be
effective unless consented to by the holders of at least a majority in aggregate
liquidation preference of the Trust Preferred Securities of that Trust and
further provided that should the Holders of such Debentures fail to rescind or
annul such declaration and waive such default, the holders of a majority in
aggregate liquidation preference of the Trust Preferred Securities of a Trust
that holds such Debentures may make such rescission, annulment and
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waiver. No such rescission shall affect any subsequent Default or impair any
right consequent thereto.
SECTION 6.03. Other Remedies.
(a) If an Event of Default occurs and is continuing, the Trustee may, in
its own name or as trustee of an express trust, institute, pursue and prosecute
any proceeding, including, without limitation, any action at law or suit in
equity or other judicial or administrative proceeding to collect the payment of
principal of or premium, if any, or interest on the Debentures of the series
that is in default, to enforce the performance of any provision of the
Debentures of that series or this Junior Indenture or to obtain any other
available remedy.
(b) The Trustee may maintain a proceeding even if it does not possess any
of the Debentures or does not produce any of the Debentures in the proceeding.
A delay or omission by the Trustee, any Debentureholder or the holders of Trust
Preferred Securities in exercising any right or remedy accruing upon an Event of
Default shall not impair such right or remedy or constitute a waiver of, or
acquiescence in, such Event of Default. No remedy is exclusive of any other
remedy. All available remedies are cumulative.
SECTION 6.04. Waiver of Past Defaults.
If a Default or Event of Default with respect to a series of Debentures has
occurred and is continuing, the Holders of at least a majority in aggregate
principal amount of the Debentures of that series at the time outstanding, or,
if that series of Debentures is held by a Trust, the holders of at least a
majority in aggregate liquidation preference of the Trust Preferred Securities
of that Trust, in each case by notice to the Trustee and the Company, may waive
an existing Default or Event of Default and its consequences except a Default or
Event of Default in the payment of the principal of or premium, if any, or
interest on any Debenture of that series (unless such default has been cured and
a sum sufficient to pay all matured installments of interest and principal due
otherwise than by acceleration has been deposited with the Trustee) or a default
in respect of a covenant or provisions which under this Indenture cannot be
modified or amended without the consent of the Holder of each of such
outstanding Debentures. When a Default or Event of Default is waived, it is
deemed cured and shall cease to exist, but no such waiver shall extend to any
subsequent or other Default or Event of Default or impair any consequent right.
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SECTION 6.05. Control by Majority.
The Holders of a majority in aggregate principal amount of the Debentures
of each series affected (with each such series voting as a class) may direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee or of exercising any trust or power conferred on the Trustee. If
the Debentures of such series are held by a Trust and the Trustee and the
trustee of such Trust have failed to so direct or to so exercise, the holders of
at least 25% in aggregate liquidation preference of the outstanding Trust
Preferred Securities of that Trust may institute proceedings to so direct or so
exercise. However, the Trustee may refuse to follow any direction that
conflicts with law or this Junior Indenture or that the Trustee determines in
good faith is unduly prejudicial to the rights of other Debentureholders or may
involve the Trustee in personal liability. The Trustee may take any other
action deemed proper by the Trustee which is not inconsistent with such
direction, including withholding notice to the Holders of the Debentures of such
series of continuing default (except in the payment of the principal of (other
than any mandatory sinking fund payment) or premium, if any, or interest on any
Debentures) if the Trustee considers it in the interest of the Holders of the
Debentures to do so.
SECTION 6.06. Limitation on Suits.
(a) Except as provided in Sections 6.07 and 6.13 hereof, no Holder of
Debentures and no holder of Trust Preferred Securities of a Trust which is the
Holder of all the Debentures of such series may pursue any remedy with respect
to this Junior Indenture or the Debentures of such series unless:
(1) the Holders of Debentures or the holders of such Trust Preferred
Securities give to the Trustee written notice stating that an Event of
Default with respect to the corresponding Debentures is continuing;
(2) the Holders of at least 25% in aggregate principal amount of the
Debentures of that series or the holders of at least 25% in aggregate
liquidation preference of such Trust Preferred Securities make a written
request to the Trustee to pursue a remedy;
(3) the Holders of Debentures or the holders of such Trust Preferred
Securities provide to the Trustee reasonable security and indemnity against
any loss, liability or expense satisfactory to the Trustee;
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(4) the Trustee does not comply with the request within 60 days after
receipt of the notice, the request and the offer of security and indemnity;
and
(5) during such 60-day period, the Holders of at least a majority in
aggregate principal amount of the Debentures of that series or the holders
of at least a majority in aggregate liquidation preference of such Trust
Preferred Securities do not give the Trustee a direction inconsistent with
the request.
In addition, no holder of Trust Preferred Securities of the Trust which is the
Holder of that series of Debentures may pursue any remedy with respect to this
Junior Indenture or the Debentures unless the above conditions have been
complied with and the Property Trustee for such Trust has also failed to act for
60 days. In such a case, the Holders of at least 25% in aggregate liquidation
preference of such outstanding Trust Preferred Securities may institute
proceedings to pursue a remedy provided for herein.
(b) A Holder of Debentures or a holder of Trust Preferred Securities may
not use this Junior Indenture to prejudice the rights of another Debentureholder
or a holder of Trust Preferred Securities or to obtain a preference or priority
over another Debentureholder or holder of Trust Preferred Securities.
SECTION 6.07. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Junior Indenture, the right of
any Holder to receive payment of the principal of and premium (if any) or
interest on the Debentures held by such Holder, on or after the respective due
dates expressed in the Debentures (in the case of interest, as the same may be
extended pursuant to Section 4.01(b) hereof) or any Redemption Date, is absolute
and unconditional and such right and the right to bring suit for the enforcement
of any such payment on or after such respective dates shall not be impaired or
affected adversely without the consent of such Holder.
SECTION 6.08. Collection Suit by the Trustee.
If an Event of Default described in Section 6.01(1) hereof occurs and is
continuing, the Trustee may recover judgment in its own name and as trustee of
an express trust against the Company or any obligor on the Debentures for the
whole amount owing with respect to the Debentures and the amounts provided for
in Section 7.07 hereof.
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SECTION 6.09. The Trustee May File Proofs of Claim.
(a) In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or its properties or assets, the
Trustee shall be entitled and empowered, by intervention in such proceeding or
otherwise:
(1) to file and prove a claim for the whole amount of the principal
of and premium, if any, and interest on the Debentures and to file such
other papers or documents as may be necessary or advisable in order to have
the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel) and of the Holders allowed in such judicial proceeding;
and
(2) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same; and any
Custodian in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the
Holders, to pay the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel, and any other amounts due the Trustee under Section
7.07 hereof.
(b) Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Debentures
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 6.10. Priorities.
(a) If the Trustee collects any money pursuant to this Article 6, it
shall, subject to Article 10 hereof, pay out the money in the following order:
FIRST: to the Trustee for amounts due under Section 7.07 hereof;
SECOND: to Holders of Debentures in respect of which or for the benefit
of which such money has been collected for amounts due and unpaid on such
Debentures for the principal amount, Redemption
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Price or interest, if any, as the case may be, ratably, without preference
or priority of any kind, according to such amounts due and payable on such
Debentures; and
THIRD: the balance, if any, to the Company.
(b) Except as otherwise set forth in the Debentures, the Trustee may fix a
Record Date and payment date for any payment to Debentureholders pursuant to
this Section 6.10.
SECTION 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this Junior
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party
litigant (other than the Trustee) in the suit of an undertaking to pay the costs
of the suit, and the court in its discretion may assess reasonable costs,
including reasonable attorneys' fees and expenses, against any party litigant in
the suit, having due regard to the merits and good faith of the claims or
defenses made by the party litigant. This Section 6.11 does not apply to a suit
by the Trustee, a suit by a Holder of Debentures or holder of Trust Preferred
Securities pursuant to Section 6.07 hereof or a suit by Holders of Debentures of
more than 10% in aggregate principal amount of the Debentures of any series or,
if a series of Debentures is held by a Trust, the holders of more than 10% in
aggregate liquidation preference of the Trust Preferred Securities of that
Trust.
SECTION 6.12. Waiver of Stay; Extension or Usury Laws.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law or any usury or
other law wherever enacted, now or at any time hereafter in force, that would
prohibit or forgive the Company from paying all or any portion of the principal
of or premium, if any, or interest on the Debentures as contemplated herein or
affect the covenants or the performance by the Company of its obligations under
this Junior Indenture; and the Company (to the extent that it may lawfully do
so) hereby expressly waives all benefit or advantage of any such law, and
covenants that it will not hinder, delay or impede the execution of any power
herein granted to the Trustee, but will suffer and permit the execution of every
such power as though no such law had been enacted.
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SECTION 6.13. Suits by Holders of Trust Preferred Securities.
Notwithstanding anything else contained herein, if an Event of Default has
occurred and is continuing and such event is attributable to the failure of the
Company to pay interest or principal on Debentures held by a Trust on the date
such interest or principal is otherwise payable, a holder of Trust Preferred
Securities of such Trust may institute a direct action for payment against the
Company after such respective due date and this Indenture may not be amended to
remove the foregoing right to bring such a direct action without the prior
written consent of all the Holders of such Trust Preferred Securities affected
thereby. Notwithstanding any payment made to such holder of Trust Preferred
Securities in connection with a direct action, the Company shall remain
obligated to pay the principal of, premium on, if any, or interest on the
Debentures held by such Trust or the relevant Property Trustee and shall be
subrogated to the rights of the holders of such Trust Preferred Securities with
respect to payments on such Trust Preferred Securities to the extent of any
payments made by the Company to such holder in any direct action.
ARTICLE 7. THE TRUSTEE
SECTION 7.01. Duties of the Trustee.
(a) If an Event of Default occurs and is continuing with respect to the
Debentures of any series, the Trustee shall exercise the rights and powers
vested in it by this Junior Indenture with respect to that series and use the
same degree of care and skill in its exercise as a prudent person would exercise
or use under the circumstances in the conduct of his or her own affairs.
(b) Except during the continuance of an Event of Default with respect to
the Debentures of any series, (i) the Trustee need perform only those duties
with respect to that series that are specifically set forth in this Junior
Indenture or the TIA and no others; and (ii) in the absence of bad faith on its
part, the Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of this Junior
Indenture. However, in the case of any certificates or opinions which by any
provision hereof are specifically required to be furnished to the Trustee, the
Trustee shall examine the certificates and opinions to determine whether or not
they conform to the requirements of this Junior Indenture.
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(c) The Trustee may not be relieved from liability for its own negligent
action, its own negligent failure to act or its own willful misconduct, except
that:
(1) this Section 7.01(c) does not limit the effect of Section 7.01(b)
hereof;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Trust Officer unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05 hereof.
(d) Every provision of this Junior Indenture that in any way relates to
the Trustee is subject to Section 7.01(a), (b), (c) and (e) and Section 7.02
hereof.
(e) The Trustee may refuse to perform any duty or exercise any right or
power or extend or risk its own funds or otherwise incur any financial liability
unless it receives security and indemnity reasonably satisfactory to it against
any loss, liability or expense (including reasonable counsel fees).
(f) Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. Except as otherwise
agreed in writing, the Trustee shall not be liable for interest on any money
held by it hereunder.
SECTION 7.02. Rights of the Trustee.
(a) The Trustee may rely on any document believed by it to be genuine and
to have been signed or presented by the proper person. The Trustee need not
investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officer's Certificate and an Opinion of Counsel. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance on
such Officer's Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible for
the misconduct or negligence of any agent appointed with due care.
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(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith which it reasonably believes to be authorized or within its
rights or powers.
(e) The Trustee may consult with counsel of its selection and the advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon.
(f) The Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Junior Indenture at the request or direction of
any of the Holders pursuant to this Junior Indenture, unless such Holders shall
have offered to the Trustee reasonable security and indemnity against the costs,
expenses and liabilities (including reasonable counsel fees) which might be
incurred by it in compliance with such request or direction.
(g) The Trustee shall not be deemed to have notice of any Event of Default
unless a Trust Officer of the Trustee has actual knowledge thereof or unless
written notice of any event that is in fact such a default is received by the
Trustee at the principal corporate trust office of the Trustee, and such notice
references the applicable series of Debentures and this Indenture.
SECTION 7.03. Individual Rights of the Trustee.
The Trustee in its individual or any other capacity may become the owner or
pledgee of Debentures and may otherwise deal with the Company or its Affiliates
with the same rights it would have if it were not Trustee. Any Paying Agent,
Registrar or co-Registrar may do the same with like rights.
However, the Trustee must comply with Sections 7.10 and 7.11 hereof.
SECTION 7.04. The Trustee's Disclaimer.
The Trustee makes no representation as to the validity or adequacy of this
Junior Indenture or the Debentures. The Trustee shall not be accountable for
the Company's use of the proceeds from the Debentures, and the Trustee shall not
be responsible for any statement in this Junior Indenture or the Debentures or
any report or certificate issued by the Company hereunder or any registration
statement relating to the Debentures (other than the Trustee's Certificate of
Authentication and the Trustee's Statement of Eligibility on Form T-1), or the
determination as to which beneficial owners are entitled to receive any notices
hereunder.
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SECTION 7.05. Notice of Defaults.
If a Default occurs and is continuing with respect to the Debentures of any
series and if it is known to the Trustee, the Trustee shall mail to each Holder
of a Debenture of that series notice of the Default within 90 days after the
occurrence thereof unless such Default shall have been cured or waived. Except
in the case of a Default described in Section 6.01(1) hereof, the Trustee may
withhold such notice if and so long as a committee of Trust Officers in good
faith determines that the withholding of such notice is in the interests of the
Holders of the Debentures of that series. The Trustee shall not be charged with
knowledge of any Default (except in the case of a Default under Section 6.01(1)
hereof) unless a responsible Trust Officer assigned to the Corporate Trust
Department of the Trustee shall have actual knowledge of the Default. The
second sentence of this Section 7.05 shall be in lieu of the proviso to TIA
Section 315(b). Said proviso is hereby expressly excluded from this Junior
Indenture, as permitted by the TIA.
SECTION 7.06. Reports by Trustee to Holders.
(a) Within 60 days after each May 31, beginning with the May 31 next
following the date of this Junior Indenture, the Trustee shall mail to each
Debentureholder, and such other holders that have submitted their names to the
Trustee for such purpose, a brief report dated as of such May 31 in accordance
with and to the extent required under TIA Section 313.
(b) A copy of each report at the time of its mailing to Debentureholders
shall be filed with the Company, the SEC and any securities exchange on which
the Debentures are listed. The Company agrees to promptly notify the Trustee
whenever the Debentures become listed on any securities exchange and of any
listing thereof.
SECTION 7.07. Compensation and Indemnity.
(a) The Company agrees:
(1) to pay to the Trustee from time to time such compensation as
shall be agreed in writing between the Company and the Trustee for all
services rendered by it hereunder (which compensation, to the fullest
extent permitted by applicable law, shall not be limited by any provision
of law in regard to the compensation of a trustee of an express trust);
(2) to reimburse the Trustee upon its request for reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any provision of
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this Junior Indenture (including the reasonable compensation and the
expenses, and advances of its agents and counsel; provided that prior to
any Event of Default, the Trustee shall only have one counsel at the same
time), including all reasonable expenses and advances incurred or made by
the Trustee in connection with any Event of Default or any membership on
any creditors' committee, except any such expense or advance as may be
attributable to its negligence, willful misconduct or bad faith; and
(3) to indemnify the Trustee, its officers, directors and
shareholders, for, and to hold it harmless against, any and all loss,
liability, damage, claim or expense, including taxes (other than taxes
based on the income of the Trustee), incurred without negligence or willful
misconduct on its part, arising out of or in connection with the acceptance
or administration of this trust, including the costs and expenses of
defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder.
(b) Before, after or during an Event of Default with respect to the
Debentures of a series, the Trustee shall have a claim and lien prior to the
Debentures of that series as to all property and funds held by it hereunder for
any amount owing it for its fees and expenses or any predecessor Trustee
pursuant to this Section 7.07, except with respect to funds held by the Trustee
or any Paying Agent in trust for the payment of principal of or premium, if any,
or interest on particular Debentures pursuant to Section 2.06 or Section 8.01
hereof.
(c) The Company's payment obligations pursuant to this Section 7.07 are
not subject to Article 10 of this Junior Indenture and shall survive the
discharge of this Junior Indenture. When the Trustee renders services or incurs
expenses after the occurrence of a Default specified in Section 6.01 hereof, the
compensation for services and expenses are intended to constitute expenses of
administration under any Bankruptcy Law.
SECTION 7.08. Replacement of Trustee.
(a) The Trustee may resign at any time by so notifying the Company in
writing at least 30 days prior to the date of the proposed resignation;
provided, however, no such resignation shall be effective until a successor
Trustee has accepted its appointment pursuant to this Section 7.08. The Holders
of at least a majority in aggregate principal amount of the Debentures at the
time outstanding may remove the Trustee by so notifying the Trustee in writing
and may appoint a
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successor Trustee, which shall be subject to the consent of the Company unless
an Event of Default has occurred and is continuing. The Trustee shall resign if:
(1) the Trustee fails to comply with Section 7.10 hereof;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or public officer takes charge of the Trustee or its
property; or
(4) the Trustee otherwise becomes incapable to act.
If the Trustee resigns or is removed or if a vacancy exists in the office of
Trustee for any reason, the Company shall promptly appoint a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment to the
retiring Trustee and to the Company. Thereupon the resignation or removal of
the retiring Trustee shall become effective, and the successor Trustee shall
have all the rights, powers and duties of the Trustee under this Junior
Indenture. The successor Trustee shall mail a notice of its succession to
Debentureholders. Subject to payment of all amounts owing to the Trustee under
Section 7.07 hereof and subject further to its lien under Section 7.07, the
retiring Trustee shall promptly transfer all property held by it as Trustee to
the successor Trustee. If a successor Trustee does not take office within 30
days after the retiring Trustee resigns or is removed, the Company, the
resigning Trustee or the Holders of at least a majority in aggregate principal
amount of the Debentures at the time outstanding may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(b) If the Trustee fails to comply with Section 7.10 hereof, any
Debentureholder may petition any court of competent jurisdiction for its removal
and the appointment of a successor Trustee.
SECTION 7.09. Successor Trustee by Merger.
If the Trustee consolidates with, merges or converts into, or transfers all
or substantially all its corporate trust business or assets to another
corporation, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee.
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SECTION 7.10. Eligibility; Disqualification.
The Trustee shall at all times satisfy the requirements of TIA Sections
310(a) to the extent applicable. The Trustee (or any Affiliate thereof which
has unconditionally guaranteed the obligations of the Trustee hereunder) shall
have a combined capital and surplus of at least $50,000,000 as set forth in its
most recently published annual report of condition. The Trustee shall comply
with TIA Section 310(b). In determining whether the Trustee has conflicting
interests as defined in TIA Section 310(b)(1), the provisions contained in the
proviso to TIA Section 310(b)(1) and the Trustee's Statement of Eligibility on
Form T-1 shall be deemed incorporated herein.
SECTION 7.11. Preferential Collection of Claims Against the Company.
If and when the Trustee shall be or become a creditor of the Company under
TIA Section 311(a), the Trustee shall be subject to the provisions of the TIA
regarding the collection of claims against the Company contained in TIA Section
311 to the extent applicable.
ARTICLE 8. SATISFACTION AND DISCHARGE OF JUNIOR
INDENTURE; DEFEASANCE OF CERTAIN OBLIGATIONS;
UNCLAIMED MONIES
SECTION 8.01. Satisfaction and Discharge of Junior Indenture.
(a) The Company shall be deemed to have paid, satisfied and discharged the
entire indebtedness on any series of the Debentures outstanding on the date when
all Debentures issued in such series not previously delivered to the Trustee for
cancellation as provided herein have become due and payable and the Company has
irrevocably deposited or caused to be irrevocably deposited with the Trustee or
any Paying Agent as trust funds in trust, specifically pledged as security for,
and dedicated solely to, the benefit of the Holders of the Debentures of such
series (i) cash (which may be held in a non-interest bearing account insured by
the Federal Deposit Insurance Corporation), in the currency or currencies in
which such Debentures are payable, in an amount, or (ii) U.S. Government
Obligations, maturing as to principal and interest at such times and in such
amounts as will ensure the availability of cash, or (iii) a combination thereof,
sufficient to pay the principal of and premium, if any, and interest on all
Debentures of such series then outstanding on the date of the deposit or to the
Stated Maturity Date, as the case may be; provided that in the case of
redemption, notice of redemption shall have been given or the Company shall have
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irrevocably instructed the Trustee to give such notice, and further provided
that the following conditions shall have been met:
(1) no Default or Event of Default with respect to the Debentures of
such series has occurred and is continuing on the date of such deposit or
occurs as a result of such deposit;
(2) the Company has delivered to the Trustee an Officer's Certificate
certifying that there does not exist (i) a default in the payment of all or
any portion of any Senior Indebtedness or (ii) any other default affecting
Senior Indebtedness permitting its acceleration as the result of which the
maturity of Senior Indebtedness has been accelerated;
(3) the Company has delivered to the Trustee an Officer's Certificate
and an Opinion of Counsel, each stating that all conditions precedent
relating to the defeasance contemplated by this provision have been
complied with; and
(4) the Company has delivered to the Trustee an Opinion of Counsel to
the effect that (i) the deposit shall not result in the Company, the
Trustee or, if the Debentures of such series are held by a Trust, such
Trust being deemed to be an "investment company" under the Investment
Company Act of 1940, as amended, and (ii) such deposit creates a valid
trust in which the Holders of the Debentures of such series have the sole
beneficial interest or that the Holders of the Debentures of such series
have a nonavoidable first priority security interest in such trust.
Upon such deposit, provisions of this Junior Indenture with respect to such
series of Debentures shall no longer be in effect (except as to (i) the rights
of registration of transfer and exchange of Debentures of such series, (ii) the
replacement of apparently mutilated, defaced, destroyed, lost or stolen
Debentures of such series, (iii) the rights of the Holders of the Debentures of
such series to receive payments of the principal thereof and premium, if any,
and interest thereon, (iv) the rights of the Holders of the Debentures of such
series as beneficiaries hereof with respect to the property so deposited with
the Trustee payable to all or any of them, (v) the obligation of the Company to
maintain an office or agency for payments on and registration of transfer of the
Debentures of such series, (vi) the rights, obligations and immunities of the
Trustee hereunder, and (vii) the obligations of the Company to the Trustee for
compensation and indemnity under Section
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7.07 hereof); and the Trustee shall, at the written request and expense of the
Company, execute proper instruments acknowledging the same.
(b) The Company shall be deemed to have paid, satisfied and discharged the
entire indebtedness on any series of the Debentures outstanding when all
Debentures issued in such series not previously delivered to the Trustee for
cancellation as provided herein will become due and payable at their Stated
Maturity Date within one year and shall be so deemed on the date the Company has
irrevocably deposited or caused to be irrevocably deposited with the Trustee or
any Paying Agent as trust funds in trust, specifically pledged as security for,
and dedicated solely to, the benefit of the Holders of the Debentures of such
series (i) cash (which may be held in a non-interest bearing account insured by
the Federal Deposit Insurance Corporation), in the currency or currencies in
which such Debentures are payable, in an amount, or (ii) U.S. Government
Obligations, maturing as to principal and interest at such times and in such
amounts as will ensure the availability of cash, or (iii) a combination thereof,
sufficient to pay the principal of and premium, if any, and interest on all
Debentures of such series then outstanding on the date of the deposit or to the
Stated Maturity Date, as the case may be; provided that in the case of
redemption, notice of redemption shall have been given or the Company shall have
irrevocably instructed the Trustee to give such notice; and further provided
that the following conditions shall have been met:
(1) no Default or Event of Default with respect to the Debentures of
such series has occurred and is continuing on the date of such deposit or
occurs as a result of such deposit or, insofar as Section 6.01(a)(3) or
6.01(a)(4) hereof is concerned, at any time during the period ending on the
91st day after the date of such deposit (it being understood that this
condition shall not be satisfied until the expiration of such period);
(2) no event or condition shall exist that, pursuant to the
provisions of Section 10.02 hereof, would prevent the Company from making
payments of the principal of or interest on the date of such deposit or at
any time during the period ending on the 91st day after the date of such
deposit (it being understood that this condition shall not be deemed
satisfied until the expiration of such period):
(3) the Company has delivered to the Trustee an Officer's Certificate
certifying that there does not exist (i) a default in the payment of all or
any portion of any Senior Indebtedness or (ii) any other default affecting
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Senior Indebtedness permitting its acceleration as the result of which the
maturity of Senior Indebtedness has been accelerated;
(4) the Company has delivered to the Trustee an Officer's Certificate
and an Opinion of Counsel, each stating that all conditions precedent
relating to the defeasance contemplated by this provision have been
complied with; and
(5) the Company has delivered to the Trustee (i) either a private
Internal Revenue Service ruling or, based upon a change in law since the
date of this Indenture, an Opinion of Counsel, in either case, to the
effect that the Holders of the Debentures of such series will not recognize
income, gain or loss for United States federal income tax purposes as a
result of such deposit, defeasance and discharge and will be subject to
United States federal income tax on the same amount and in the manner and
at the same times as would have been the case if such deposit, defeasance
and discharge had not occurred, and (ii) an Opinion of Counsel to the
effect that (A) the deposit shall not result in the Company, the Trustee
or, if the Debentures of such series are held by a Trust, such Trust being
deemed to be an "investment company" under the Investment Company Act of
1940, as amended, and (B) such deposit creates a valid trust in which the
Holders of the Debentures of such series have the sole beneficial interest
or that the Holders of the Debentures of such series have a nonavoidable
first priority security interest in such trust.
Upon such deposit, provisions of this Junior Indenture with respect to such
series of Debentures shall no longer be in effect (except as to (i) the rights
of registration of transfer and exchange of Debentures of such series, (ii) the
replacement of apparently mutilated, defaced, destroyed, lost or stolen
Debentures of such series, (iii) the rights of the Holders of the Debentures of
such series to receive payments of the principal thereof and premium, if any,
and interest thereon, (iv) the rights of the Holders of the Debentures of such
series as beneficiaries hereof with respect to the property so deposited with
the Trustee payable to all or any of them, (v) the obligation of the Company to
maintain an office or agency for payments on and registration of transfer of the
Debentures of such series, (vi) the rights, obligations and immunities of the
Trustee hereunder, and (vii) the obligations of the Company to the Trustee for
compensation and indemnity under Section 7.07 hereof); and the Trustee shall, at
the written request and expense of the Company, execute proper instruments
acknowledging the same.
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SECTION 8.02. Application by Trustee of Funds Deposited for Payment of
Debentures; Miscellaneous.
(a) Subject to Section 8.04 hereof, all monies deposited with the Trustee
pursuant to Section 8.01 hereof shall be held in trust and applied by it to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent), to the Holders of the Debentures of the series
for the payment or redemption of which such monies have been deposited with the
Trustee, of all sums due and to become due thereon for principal and interest;
but such money need not be segregated from other funds except to the extent
required by law.
(b) The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the U. S. Government Obligations
deposited pursuant to Section 8.01 hereof or the principal and interest received
in respect thereof other than any such tax, fee or other charge which by law is
for the account of the Holders of outstanding Debentures.
SECTION 8.03. Repayment of Monies Held by Paying Agent.
In connection with the satisfaction and discharge of this Junior Indenture,
all monies then held by any Paying Agent under this Junior Indenture shall, upon
demand of the Company, be repaid to it or paid to the Trustee, and thereupon
such Paying Agent shall be released from all further liability with respect to
such moneys.
SECTION 8.04. Return of Monies Held by the Trustee and Paying Agent Unclaimed
for Two Years.
Any monies deposited with or paid to the Trustee or any Paying Agent for
the payment of the principal of and premium, if any, or interest on the
Debentures of any series and not applied but remaining unclaimed for two years
after the date when such principal, premium, if any, or interest shall have
become due and payable shall, unless otherwise required by mandatory provisions
of applicable escheat or abandoned or unclaimed property law, be repaid, upon
written request, to the Company by the Trustee or such Paying Agent, and the
Holders of such Debentures shall, unless otherwise required by mandatory
provisions of applicable escheat or abandoned or unclaimed property laws,
thereafter look only to the Company for any payment which such Holder may be
entitled to collect, and all liability of the Trustee or any Paying Agent with
respect to such monies shall thereupon cease.
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ARTICLE 9. AMENDMENTS
SECTION 9.01. Without Consent of Holders.
From time to time, when authorized by a resolution of the Board of
Directors, the Company and the Trustee, without notice to or the consent of any
Holders of the Debentures, may amend, waive or supplement this Junior Indenture:
(i) to cure any ambiguity, defect or inconsistency;
(ii) to comply with Article 5 hereof;
(iii) to provide for uncertificated Debentures in addition to or in
place of certificated Debentures;
(iv) to comply with any requirement of the SEC in connection with
the qualification of this Junior Indenture under the TIA; or
(v) to set forth the terms and conditions, which shall not be
inconsistent with this Junior Indenture, of any series of Debentures (other
than the Series 1998 Debentures), that are to be issued hereunder and the
form of Debentures of such series;
provided that any such action does not adversely affect the Holders of such
Debentures and, in the case of the outstanding Debentures of a series then held
by a Trust, any such action does not adversely affect the holders of the Trust
Preferred Securities of that Trust.
SECTION 9.02. With Consent of Holders.
(a) The Company and the Trustee may amend or supplement this Junior
Indenture in any manner not permitted by Section 9.01 hereof, or may waive
future compliance by the Company with any provisions of this Junior Indenture,
with the consent of the Holders of at least a majority in aggregate principal
amount of the Debentures of each series affected thereby. Such an amendment or
waiver may not, without the consent of each Holder of the Debentures affected
thereby:
(1) reduce the principal amount of such Debentures;
(2) reduce the percentage of principal amount of such Debentures the
Holders of which must consent to an amendment of this Junior Indenture or a
waiver;
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(3) change the stated maturity of the principal of or the interest on
or rate of interest of such Debentures; or
(4) extend the time of payment of interest on such Debentures, except
as provided herein;
provided that, in the case of the outstanding Debentures of a series then held
by a Trust, (i) no such amendment shall be made that adversely affects the
holders of the Trust Preferred Securities of that Trust, (ii) no termination of
the Indenture may occur, and (iii) no waiver of any Event of Default with
respect to the Debentures of that series or compliance with any covenant under
this Indenture shall be effective, in each case without the prior consent of the
holders of at least a majority of the aggregate liquidation preference of the
outstanding Trust Preferred Securities of that Trust or the holder of each such
Trust Preferred Security, as applicable.
(b) A supplemental Junior Indenture that changes or eliminates any
covenant or other provision of this Junior Indenture that has expressly been
included solely for the benefit of one or more particular series of Debentures,
or which modifies the rights of the Holders of Debentures of such series with
respect to such covenant or other provision, shall be deemed not to affect the
rights under this Junior Indenture of the Holders of Debentures of any other
series.
(c) It shall not be necessary for the consent of the Holders of Debentures
or holders of Trust Preferred Securities under this Section 9.02 to approve the
particular form of any proposed amendment, but it shall be sufficient if such
consent approves the substance thereof.
(d) If certain Holders agree to defer or waive certain obligations of the
Company hereunder with respect to Debentures held by them, such deferral or
waiver shall not affect the rights of any other Holder to receive the payment or
performance required hereunder in a timely manner.
(e) After an amendment or waiver under this Section 9.02 becomes
effective, the Company shall mail to each Holder a notice briefly describing the
amendment or waiver. Any failure of the Company to mail such notices, or any
defect therein, shall not, however, in any way impair or affect the validity of
such amendment or waiver.
SECTION 9.03. Compliance with Trust Indenture Act.
Every supplemental Junior Indenture executed pursuant to this Article 9
shall comply with the TIA.
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SECTION 9.04. Revocation and Effect of Consents; Waivers and Actions.
(a) Until an amendment, waiver or other action by Holders becomes
effective, a consent to it or any other action by a Holder of a Debenture
hereunder is a continuing consent by the Holder and every subsequent Holder of
that Debenture or portion of the Debenture that evidences the same obligation as
the consenting Holder's Debenture, even if notation of the consent, waiver or
action is not made on such Debenture. However, any such Holder or subsequent
Holder may revoke the consent, waiver or action as to such Holder's Debenture or
portion of the Debenture if the Trustee receives the notice of revocation before
the consent of the requisite aggregate principal amount of such Debentures then
outstanding has been obtained and not revoked. After an amendment, waiver or
action becomes effective, it shall bind every Holder of the Debentures of the
related series, except as provided in Section 9.02 hereof.
(b) The Company may, but shall not be obligated to, fix a Record Date for
the purpose of determining the Persons entitled to consent to any amendment or
waiver. If a Record Date is fixed, then, notwithstanding the first two
sentences of the immediately preceding paragraph, only Holders of Debentures or
holders of Trust Preferred Securities, as applicable, on such Record Date or
their duly designated proxies, and only those Persons, shall be entitled to
consent to such amendment, supplement or waiver or to revoke any consent
previously given, whether or not such Persons continue to be such after such
Record Date. No such consent shall be valid or effective for more than 90 days
after such Record Date.
SECTION 9.05. Notation on or Exchange of Debentures.
Debentures of the related series authenticated and made available for
delivery after the execution of any supplemental Junior Indenture pursuant to
this Article 9 may, and shall, if required by the Trustee, bear a notation in
form approved by the Trustee as to any matter provided for in such supplemental
Junior Indenture. If the Company shall so determine, new Debentures so modified
as to conform, in the opinion of the Trustee and the Board of Directors, to any
such supplemental Junior Indenture may be prepared and executed by the Company
and authenticated and made available for delivery by the Trustee in exchange for
outstanding Debentures.
SECTION 9.06. Trustee to Execute Supplemental Junior Indentures.
The Trustee shall execute any supplemental Junior Indenture authorized
pursuant to this Article 9 if the supplemental Junior Indenture does not
adversely affect the
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rights, duties, liabilities or immunities of the Trustee. If it does, the
Trustee may, but need not, execute it. In executing such supplemental Junior
Indenture the Trustee shall be entitled to receive, and shall be fully protected
in relying upon, an Officer's Certificate and Opinion of Counsel stating that
such supplemental Junior Indenture is authorized or permitted by this Junior
Indenture.
SECTION 9.07. Effect of Supplemental Junior Indentures.
Upon the execution of any supplemental Junior Indenture under this Article
9, this Junior Indenture shall be modified in accordance therewith, and such
supplemental Junior Indenture shall form a part of this Junior Indenture for all
purposes and every Holder of Debentures of the related series theretofore or
thereafter authenticated and made available for delivery hereunder shall be
bound thereby.
ARTICLE 10. SUBORDINATION
SECTION 10.01. Debentures Subordinated to Senior Indebtedness.
Notwithstanding the provisions of Section 6.10 hereof or any other
provision herein or in any Debenture, each of the Company and the Trustee and,
by their acceptance thereof, the Holders of each series of Debentures (a)
covenant and agree that all payments by the Company of the principal of and
premium, if any, and interest on such series of Debentures (other than any
series of Debentures which have been discharged pursuant to Article 8 hereof)
shall be junior and subordinated in accordance with the provisions of this
Article 10 to the prior payment in full, in cash or cash equivalents, of all
amounts payable on, under or in connection with Senior Indebtedness, and (b)
acknowledge that holders of Senior Indebtedness are or shall be relying on this
Article 10.
SECTION 10.02. Priority and Payment of Proceeds in Certain Events; Remedies
Standstill.
(a) Upon any payment or distribution of the Company's assets, of any kind
or character, whether in cash, property or securities, to creditors upon any
dissolution or winding up or total or partial liquidation or reorganization of
the Company, whether voluntary or involuntary, or assignment for the benefit of
creditors, marshaling of assets or bankruptcy, insolvency, debt restructuring or
other similar proceedings in connection with any insolvency or bankruptcy
proceeding of the Company, any amounts payable on, under or in connection with
Senior Indebtedness (including any interest accruing on such Senior Indebtedness
subsequent to the commencement of a bankruptcy, insolvency or similar
proceeding) shall first be paid in full
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in cash, or payment provided for in cash or cash equivalents, before the Holders
or the Trustee on behalf of the Holders or the holders of Trust Preferred
Securities shall be entitled to receive from the Company any payment of
principal of or premium, if any, or interest on any series of Debentures or
distribution of any assets or securities.
(b) No direct or indirect payment by or on behalf of the Company of
principal of or premium, if any, or interest on any series of Debentures (other
than any series of Debentures which has been discharged pursuant to Article 8
hereof), whether pursuant to the terms of such series of Debentures or upon
acceleration or otherwise, shall be made if, at the time of such payment, there
exists (i) a default in the payment of all or any portion of any Senior
Indebtedness and the Trustee has received written notice thereof from the
Company, from holders of Senior Indebtedness or from any trustee, representative
or agent therefor, (ii) any other default affecting Senior Indebtedness as a
result of which the maturity of Senior Indebtedness has been accelerated and the
Trustee has received written notice from the Company, from holders of Senior
Indebtedness or from any trustee, representative or agent therefor, or (iii) any
judicial proceedings are pending with respect to any such defaults, and such
default shall not have been cured or waived by or on behalf of the holders of
such Senior Indebtedness.
(c) If, notwithstanding the foregoing provisions prohibiting such payment
or distribution, the Trustee or any Holder shall have received any payment on
account of the principal of or premium, if any, or interest on any series of
Debentures when such payment is prohibited by this Section 10.02 and before all
amounts payable on, under or in connection with Senior Indebtedness are paid in
full in cash or cash equivalents, then and in such event (subject to the
provisions of Section 10.08 hereof) such payment or distribution shall be
received and held in trust for the holders of Senior Indebtedness and, at the
written direction of the trustee, representative or agent for the holders of the
Senior Indebtedness, shall be paid to the holders of the Senior Indebtedness
remaining unpaid to the extent necessary to pay such Senior Indebtedness in full
in cash or cash equivalents.
(d) Upon any payment or distribution of assets or securities referred to
in this Article 10, the Trustee and the Holders shall be entitled to rely upon
any order or decree of a court of competent jurisdiction in which such
dissolution, winding up, liquidation or reorganization proceedings are pending,
and upon a certificate of the receiver, trustee in bankruptcy, liquidating
trustee, agent or other Person making any such payment or distribution,
delivered to the Trustee for the purpose of ascertaining the Persons entitled to
participate
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in such distribution, the holders of Senior Indebtedness and other Indebtedness
of the Company, the amount thereof or payable thereon, the amount or amounts
paid or distributed thereon and all other facts pertinent thereto or to this
Article 10.
SECTION 10.03. Payments Which May Be Made Prior to Notice.
Nothing in this Article 10 or elsewhere in this Junior Indenture shall
prevent (i) the Company, except under the conditions described in Section 10.02
hereof, from making payments of principal of or premium, if any, or interest on
any series of Debentures or from depositing with the Trustee any monies for such
payments, or (ii) the application by the Trustee of any monies deposited with it
for the purpose of making such payments of principal of or premium, if any, or
interest on such series of Debentures, to the Holders entitled thereto, unless
at least one Business Day prior to the date when such payment would otherwise
(except for the prohibitions contained in Section 10.02 hereof) become due and
payable the Trustee shall have received the written notice provided for in
Section 10.02(b)(i) or 10.02(b)(ii) hereof.
SECTION 10.04. Rights of Holders of Senior Indebtedness Not To Be Impaired.
(a) No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time or in any way be
prejudiced or impaired by any act, or failure to act, in good faith by any
such holder, or by any noncompliance by the Company with the terms and
provisions and covenants herein regardless of any knowledge thereof any such
holder may have or otherwise be charged with.
(b) The provisions of this Article 10 are intended to be for the benefit
of, and shall be enforceable directly by, the holders of Senior Indebtedness.
Notwithstanding anything to the contrary in this Article 10, to the extent any
Holders or the Trustee have paid over or delivered to any holder of Senior
Indebtedness any payment or distribution received on account of the principal of
or premium (if any) or interest on any series of Debentures to which any other
holder of Senior Indebtedness shall be entitled to share in accordance with
Section 10.02 hereof, no holder of Senior Indebtedness shall have a claim or
right against any Holders or the Trustee with respect to any such payment or
distribution or as a result of the failure to make payments or distributions to
such other holder of Senior Indebtedness.
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SECTION 10.05. Trustee May Take Action to Effectuate Subordination.
Each Holder of a Debenture, by such Holder's acceptance thereof, authorizes
and directs the Trustee on such Holder's behalf to take such action as may be
required by the trustee, representative or agent for holders of Senior
Indebtedness or by the Company to effectuate, as between the holders of Senior
Indebtedness and the Holders, the subordination as provided in this Article 10
and appoints the Trustee such Holder's attorney-in-fact for any and all such
purposes.
SECTION 10.06. Subrogation.
(a) Upon the payment in full, in cash or cash equivalents, of all Senior
Indebtedness, Holders of each series of Debentures shall be subrogated to the
rights of the holders of such Senior Indebtedness to receive payments or
distributions of assets of the Company made on such Senior Indebtedness until
all series of Debentures shall be paid in full; and for the purposes of such
subrogation, no payments or distributions to holders of such Senior Indebtedness
of any cash property or securities to which Holders of any series of Debentures
would be entitled except for this Article 10, and no payment pursuant to this
Article 10 to holders of such Senior Indebtedness by Holders of such series of
Debentures, shall, as between the Company, its creditors other than holders of
such Senior Indebtedness and such Holders of such series of Debentures, be
deemed to be a payment by the Company to or on account of such Senior
Indebtedness, it being understood that the provisions of this Article 10 are
solely for the purpose of defining the relative rights of the holders of such
Senior Indebtedness, on the one hand, and such Holders of such series of
Debentures, on the other hand.
(b) If any payment or distribution to which Holders of any series of
Debentures would otherwise have been entitled but for the provisions of this
Article 10 shall have been applied, pursuant to this Article 10, to the payment
of all Senior Indebtedness then and in such case Holders of such series of
Debentures shall be entitled to receive from the holders of such Senior
Indebtedness at the time outstanding any payments or distributions received by
such holders of Senior Indebtedness in excess of the amount sufficient to pay,
in cash or cash equivalents, all such Senior Indebtedness in full.
SECTION 10.07. Obligations of Company Unconditional; Reinstatement.
(a) Nothing in this Article 10 or elsewhere in this Junior Indenture or in
any Debenture is intended to or shall impair, as between the Company and Holders
of any series of
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Debentures, the obligations of the Company, which are absolute and
unconditional, to pay to such Holders the principal of and premium, if any, and
interest on such series of Debentures as and when the same shall become due and
payable in accordance with their terms, or is intended to or shall affect the
relative rights of Holders of such series of Debentures and creditors of the
Company other than the holders of the Senior Indebtedness, nor shall anything
herein or therein prevent the Trustee or any Holder of such series of Debentures
or holder of Trust Preferred Securities, as applicable, from exercising all
remedies otherwise permitted by applicable law under this Junior Indenture,
subject to the rights, if any, under this Article 10 of the holders of such
Senior Indebtedness in respect of cash, property or securities of the Company
received upon the exercise of any such remedy.
(b) The failure to make a scheduled payment of principal of or premium, if
any, or interest on any series of Debentures by reason of Section 10.02 hereof
shall not be construed as preventing the occurrence of an Event of Default under
Section 6.01 hereof; provided, however, that if (i) the conditions preventing
the making of such payment no longer exist, and (ii) Holders of such series of
Debentures are made whole with respect to such omitted payments, the Event of
Default relating thereto (including any failure to pay any accelerated
amounts) shall be automatically waived, and the provisions of this Junior
Indenture shall be reinstated as if no such Event of Default had occurred.
SECTION 10.08. Trustee Entitled to Assume Payments Not Prohibited in Absence of
Notice.
(a) The Company shall give prompt written notice to the Trustee of any
fact known to the Company that would prohibit the making of any payment to or by
the Trustee in respect of any series of Debentures. Failure to give such notice
shall not affect the subordination of the Debentures to Senior Indebtedness.
Notwithstanding the provisions of this or any other provisions of this Junior
Indenture, the Trustee or Paying Agent shall not be charged with the knowledge
of the existence of any default in the payment of all or a portion of any Senior
Indebtedness or any other default affecting Senior Indebtedness as a result of
which the maturity of the Senior Indebtedness has been accelerated, unless and
until the Trustee or Paying Agent shall have received written notice thereof
from the Company or one or more holders of Senior Indebtedness or from any
trustee, representative or agent therefor or unless the Trustee or Paying Agent
otherwise had actual knowledge thereof; and, prior to the receipt of any such
written notice or actual knowledge of a responsible Trust Officer in the
corporate trust department of the Trustee or Paying Agent, the
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Trustee or Paying Agent may conclusively assume that no such facts exist.
(b) Unless at least one Business Day prior to the date when by the terms
of this Junior Indenture any monies are to be deposited by the Company with the
Trustee or any Paying Agent for any purpose (including, without limitation, the
payment of the principal of or premium, if any, or interest on any Debenture),
the Trustee or Paying Agent shall have received with respect to such monies the
notice provided for in Section 10.02 hereof or a responsible Trust Officer in
the corporate trust department of the Trustee or Paying Agent shall have actual
knowledge of default in the payment of all or a portion of any Senior
Indebtedness or any other default affecting Senior Indebtedness as the result of
which the maturity of the Senior Indebtedness has been accelerated, the Trustee
or Paying Agent shall have full power and authority to receive and apply such
monies to the purpose for which they were received. Neither of them shall be
affected by any notice to the contrary, which may be received by either on or
after such date. The foregoing shall not apply to the Paying Agent if the
Company is acting as Paying Agent. Nothing in this Section 10.08 shall limit the
right of the holders of Senior Indebtedness to recover payments as contemplated
by Section 10.02 hereof. The Trustee or Paying Agent shall be entitled to rely
on the delivery to it of a written notice by a Person representing himself or
itself to be a holder of such Senior Indebtedness (or a trustee, representative
or agent on behalf of such holder) to establish that such notice has been given
by a holder of such Senior Indebtedness or a trustee, representative or agent on
behalf of any such holder. The Trustee shall not be deemed to have any duty to
the holders (and shall be fully protected in relying upon such notice) of Senior
Indebtedness.
SECTION 10.09. Right of Trustee to Hold Senior Indebtedness.
(a) The Trustee and any Paying Agent shall be entitled to all of the
rights set forth in this Article 10 in respect of any Senior Indebtedness at any
time held by them to the same extent as any other holder of such Senior
Indebtedness, and nothing in this Junior Indenture shall be construed to deprive
the Trustee or any Paying Agent of any of its rights as such holder.
(b) Nothing in this Article 10 shall apply to claims of, or payments to,
the Trustee under or pursuant to Section 7.07 hereof.
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SECTION 10.10. Reliance on Judicial Order or Certificate of Liquidating Agent.
Upon any payment or distribution of assets of the Company referred to in
this Article 10, the Trustee, and the Holders of each series of Debentures shall
be entitled to rely upon any order or decree entered by any court of competent
jurisdiction in which such insolvency, bankruptcy, receivership, liquidation,
reorganization, dissolution, winding up or similar case or proceeding is
pending, or a certificate of the trustee in bankruptcy, liquidating trustee,
custodian, receiver, assignee for the benefit of creditors, agent or other
person making such payment or distribution, delivered to the Trustee or to the
Holders of such series of Debentures, for the purpose of ascertaining the
persons entitled to participate in such payment or distribution, the holders of
Senior Indebtedness and other indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article 10.
SECTION 10.11. Trustee Not Fiduciary for Holders of Senior Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to the holders of
Senior Indebtedness and shall not be liable to any such holders if the Trustee
shall in good faith mistakenly pay over or distribute to Holders of such series
of Debentures or to the Company or to any other person cash, property or
securities to which any holders of Senior Indebtedness shall be entitled by
virtue of this Article 10 or otherwise. With respect to the holders of Senior
Indebtedness, the Trustee undertakes to perform or to observe only such of its
covenants or obligations as are specifically set forth in this Article 10 and no
implied covenants or obligations with respect to holders of Senior Indebtedness
shall be read into this Junior Indenture against the Trustee.
ARTICLE 11. GUARANTEE OF OBLIGATIONS OF THE COMPANY
SECTION 11.01. Guarantee.
The Guarantor, pursuant to the terms of the Guarantee set forth in this
Article 11 (this "Guarantee"), irrevocably and unconditionally guarantees to the
Trustee (for its own benefit and the benefit of the Holders) and the Holders,
and agrees to pay in full, perform and observe, from time to time the due and
punctual payment, observance and performance of all of the Guaranteed
Obligations (without duplication of amounts theretofore paid by the Company), in
accordance with their respective terms and as and when due (whether at maturity,
by
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reason of acceleration or otherwise, but after giving effect to a valid
extension of an interest payment period by the Company pursuant to the terms of
the Debentures), regardless of any defense, right of set-off or counterclaim
which the Company may have or assert. The Guarantor's obligation to make a
Guarantee Payment may be satisfied by direct payment of the required amounts by
the Guarantor to the Holders or by causing the Company to pay such amounts to
the Holders.
SECTION 11.02. Waiver of Notice and Demand.
The Guarantor hereby waives notice of acceptance of and reliance on this
Guarantee and of any liability to which it applies or may apply, presentment,
demand for payment, any right to require a proceeding first against the Company
or any other Person before proceeding against the Guarantor, protest, notice of
nonpayment, notice of dishonor, notice of redemption and all other notices and
demands, diligence and all other defenses under applicable law that would, but
for this Section 11.02, be available to the Guarantor as a defense against or a
reduction of its obligations hereunder.
SECTION 11.03. Obligations Not Affected.
(a) The obligations, covenants, agreements and duties of the Guarantor
under this Guarantee shall in no way be affected or impaired by reason of the
happening from time to time of any of the following:
(1) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Company of the Guaranteed Obligations or
any discharge, disallowance, invalidity, illegality, voidness or other
unenforceability thereof;
(2) the extension of time for the payment by the Company of all or
any portion of the interest, principal or premiums, if any, or any other
sums payable in respect of the Guaranteed Obligations (other than as
provided in Section 11.01 hereof with respect to an extension of time for
payment of interest during an Extension Period) or any increase in the
principal of, or interest rate applicable to, the Debentures;
(3) any failure, omission, delay or lack of diligence on the part of
the Holders to enforce, assert or exercise any right, privilege, power or
remedy conferred on the Holders in respect of the Guaranteed Obligations or
any action on the part of the Holders granting indulgence or extension of
any kind;
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(4) the voluntary or involuntary liquidation, termination, 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
Company or any of the assets of the Company;
(5) any invalidity of, or defect or deficiency in, the Guaranteed
Obligations;
(6) the settlement or compromise of any obligation guaranteed hereby
or hereby incurred;
(7) any termination of or change in any relationship between the
Company and the Guarantor, including any resulting from a change in the
ownership of the Company; or
(8) to the extent permitted by law, any other circumstance whatsoever
that might otherwise constitute a legal or equitable discharge or defense
of a guarantor, it being the intent of this Section 11.03 that the
obligations of the Guarantor hereunder shall be irrevocable, absolute and
unconditional under any and all circumstances.
(b) There shall be no obligation of the Holders to give notice to, or
obtain the consent of, the Guarantor with respect to the happening of any of the
foregoing.
SECTION 11.04. Prohibition on Distributions, Etc.
If (i) there shall have occurred any event of which the Company has actual
knowledge that (a) with the giving of notice or the lapse of time, or both,
would constitute an Event of Default with respect to any series of Debentures
and (b) in respect of which the Company shall not have taken reasonable steps to
cure and (ii) the Guarantor defaults in the performance of the Guaranteed
Obligations, the Guarantor shall not, directly or indirectly through a
Subsidiary, (aa) declare or pay any dividends or distributions on, or redeem,
purchase, acquire or make a liquidation payment with respect to, any of its
Capital Stock, (bb) make any payment of principal, interest or premium, if any,
on or repay, repurchase or redeem any of its debt securities that rank pari
passu with or junior in interest to the Guarantor's obligations under this
Guarantee, or (cc) make any guarantee payments with respect to any guarantee
issued by the Guarantor if such guarantee ranks pari passu with or junior in
interest to the Guarantor's obligations under this Guarantee (other than (x)
dividends or distributions in shares of, or options, warrants or rights to
subscribe for or purchase shares of its common stock and exchanges or
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conversions of common stock of one class for common stock of another class, (y)
payments by the Guarantor under any Trust Guarantee Agreement (as defined in the
HECO Junior Indenture) and pursuant to this Guarantee, and (z) purchases by the
Guarantor of its common stock required to prevent the loss or secure the renewal
or reinstatement of any government license or franchise held by the Guarantor).
SECTION 11.05. Rights of Holders.
(a) The Guarantor expressly acknowledges that: (i) the Guarantee set
forth in this Article 11 is for the benefit of the Trustee (for its own benefit
and the benefit of the Holders) and the Holders; (ii) the Trustee has the right
to enforce this Guarantee on behalf of the Holders; (iii) the Holders of a
majority in aggregate principal amount of the Debentures have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee in respect of this Guarantee or exercising any trust or
power conferred upon the Trustee under this Guarantee.
(b) If the Trustee fails to enforce its rights under this Guarantee after
a Holder has made a written request, such Holder may institute a legal
proceeding directly against the Guarantor to enforce the Trustee's rights under
this Guarantee, without first instituting a legal proceeding against the
Company, the Trustee or any other Person or entity. Notwithstanding the
foregoing, if the Guarantor has failed to make a Guarantee Payment, a Holder may
directly institute a proceeding in such Holder's own name against the Guarantor
for enforcement of the Guarantee of such payment. The Guarantor waives any
right or remedy to require that any action be brought first against the Company,
the Trustee or any other Person or entity before proceeding directly against the
Guarantor.
SECTION 11.06. Guarantee of Payment.
This Guarantee creates a guarantee of payment and not of collection. This
Guarantee will not be discharged except by payment, observance and performance
in full of the Guaranteed Obligations (without duplication of amounts
theretofore paid by or on behalf of the Company pursuant to this Junior
Indenture).
SECTION 11.07. Subrogation.
The Guarantor shall be subrogated to all (if any) rights of the Holders
against the Company in respect of any amounts paid to the Holders by the
Guarantor under this Guarantee and shall have the right to waive payment by the
Company's subsidiaries pursuant to Section 11.01 hereof; provided, however, that
the Guarantor shall not (except to the extent
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required by mandatory provisions of law) be entitled to enforce or exercise any
rights which it may acquire by way of subrogation or any indemnity,
reimbursement or other agreement, in all cases as a result of payment under this
Guarantee, until the prior payment, observance and performance in full of the
Guaranteed Obligations. If any amount shall be paid to the Guarantor in
violation of the preceding sentence, the Guarantor agrees to hold such amount in
trust for the Holders and to pay over such amount to the Holders.
SECTION 11.08. Independent Obligations.
The Guarantor acknowledges that its obligations hereunder are independent
of the obligations of the Company with respect to the Debentures and that the
Guarantor shall be liable as principal and as debtor hereunder to pay, observe
and perform the Guaranteed Obligations pursuant to the terms of this Guarantee
notwithstanding the occurrence of any event referred to in subsections (a)(1)
through (a)(8), inclusive, of Section 11.03 hereof.
SECTION 11.09. Subordination.
This Guarantee shall constitute an unsecured obligation of the Guarantor
and shall rank subordinate and junior in right of payment to all general
liabilities of the Guarantor.
SECTION 11.10. Pari Passu Guarantees.
This Guarantee shall rank pari passu with any similar guarantee agreements
issued by the Guarantor on behalf of the holders of securities similar to any
series of Debentures issued by any subsidiary of the Guarantor in the past or
future.
SECTION 11.11. Termination.
This Guarantee shall terminate, with respect to any series of Debentures,
upon the payment in full of the Guaranteed Payments with respect to such series
of Debentures. Notwithstanding the foregoing, this Guarantee will continue to
be effective or will be reinstated, as the case may be, if at any time any
Holder of Debentures of any series must restore payment of any sums paid under
such Debentures or under this Guarantee or any payment, observance or
performance of any of the Guaranteed Obligations with respect to such series of
Debentures is otherwise recovered from or paid over by or for the account of the
Trustee or the Holders for any reason, including as a preference or fraudulent
transfer, whether effected by judgment, decree or order of any governmental
authority, by any plan of reorganization or by any settlement or compromise.
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SECTION 11.12. Exculpation.
(a) No Indemnified Person shall be liable, responsible or accountable in
damages or otherwise to the Guarantor or any Covered Person for any loss, damage
or claim incurred by reason of any act or omission performed or omitted by such
Indemnified Person in good faith in accordance with this Guarantee and in a
manner that such Indemnified Person reasonably believed to be within the scope
of the authority conferred on such Indemnified Person by this Guarantee or by
law, except that an Indemnified Person shall be liable for any such loss, damage
or claim incurred by reason of such Indemnified Person's gross negligence or
willful misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in good
faith upon the records of the Guarantor and upon such information, opinions,
reports or statements presented to the Guarantor by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Guarantor, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses, or any other facts pertinent to the existence and amount of assets from
which principal, interest or other payments to Holders might properly be paid.
SECTION 11.13. Indemnification.
The Guarantor agrees to indemnify each Indemnified Person for, and to hold
each Indemnified Person harmless against, any and all loss, liability, damage,
claim or expense, including taxes (other than taxes based on the income of such
Indemnified Person) incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or administration of the
trust or trusts hereunder, including the costs and expenses (including
reasonable legal fees and expenses) of defending itself against, or
investigating, any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder. The obligation to
indemnify as set forth in this Section 11.13 shall survive the termination of
this Guarantee or the earlier resignation or removal of the Trustee.
ARTICLE 12. MISCELLANEOUS
SECTION 12.01. Trust Indenture Act Controls.
If any provision of this Junior Indenture limits, qualifies or conflicts
with the duties imposed by operation of
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subsection (c) of Section 318 of the TIA, the imposed duties shall control. The
provisions of Sections 310 to 317, inclusive, of the TIA that impose duties on
any Person (including provisions automatically deemed included in a Junior
Indenture unless the Junior Indenture provides that such provisions are
excluded) are a part of and govern this Junior Indenture, except as, and to the
extent, they are expressly excluded from this Junior Indenture, as permitted by
the TIA.
SECTION 12.02. Notices.
(a) Any notice, request or other communication required or permitted to be
given hereunder shall be in writing and delivered, telecopied or mailed by
first-class mail, postage prepaid, addressed as follows:
if to the Company:
Maui Electric Company, Limited
210 West Kamehameha Avenue
Kahului, Hawaii 96732-0398
Facsimile No.: (808) 871-2350
Attention: Treasurer
with a copy to:
Hawaiian Electric Company, Inc.
900 Richards Street
Honolulu, Hawaii 96813
Facsimile No.: (808) 543-7966
Attention: Treasurer
if to the Trustee:
The Bank of New York
101 Barclay Street, 21st Floor
New York, New York 10286
Facsimile No.: (212) 815-5915
Attention: Corporate Trust Trustee
Administration
if to the Guarantor:
Hawaiian Electric Company, Inc.
900 Richards Street
Honolulu, Hawaii 96813
Facsimile No.: (808) 543-7966
Attention: Treasurer
(b) The Company or the Trustee, by giving notice to the other, may
designate additional or different addresses for subsequent notices of
communications.
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(c) Any notice or communication given to a Debentureholder shall be mailed
or delivered to the Debentureholder at the Debentureholder's address as it
appears on the Securities Register of the Registrar and shall be sufficiently
given if mailed within the time prescribed.
(d) Failure to mail a notice or communication to a Debentureholder or any
defect in it shall not affect its sufficiency with respect to other
Debentureholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not received by the addressee.
(e) If the Company mails a notice or communication to the
Debentureholders, it shall mail a copy to the Trustee and each Registrar, Paying
Agent or co-Registrar.
SECTION 12.03. Communication by Holders with Other Holders.
Debentureholders may communicate, pursuant to TIA Section 312(b), with
other Debentureholders with respect to their rights under this Junior Indenture
or any series of Debentures. The Company, the Trustee, the Registrar, the
Paying Agent, if any, and anyone else shall have the protection of TIA Section
312(c).
SECTION 12.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take any
action under this Junior Indenture, the Company shall furnish to the Trustee:
(i) an Officer's Certificate (complying with Section 12.05 hereof)
stating that, in the opinion of such Officer, all conditions precedent to
the taking of such action have been complied with; and
(ii) if appropriate, an Opinion of Counsel (complying with Section
12.05 hereof) stating that, in the opinion of such counsel, all such
conditions precedent to the taking of such action have been complied with.
SECTION 12.05. Statements Required in Certificate or Opinion.
Each Officer's Certificate and Opinion of Counsel with respect to
compliance with a covenant or condition provided for in this Junior Indenture
shall include:
(i) a statement that each Person making such Officer's Certificate
or Opinion of Counsel has read such covenant or condition;
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(ii) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
Officer's Certificate or Opinion of Counsel are based;
(iii) a statement that, in the opinion of each such Person, such
Person has made such examination or investigation as is necessary to enable
such Person to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(iv) a statement as to whether or not, in the opinion of such
Person, such covenant or condition has been complied with; provided,
however, that with respect to matters of fact not involving any legal
conclusion, an Opinion of Counsel may rely on an Officer's Certificate or
certificates of public officials.
SECTION 12.06. Severability Clause.
If any provision in this Junior Indenture or in any series of Debentures
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 12.07. Rules by Trustee, Paying Agent and Registrar.
The Trustee may make reasonable rules for action by or for a meeting of
Debentureholders. The Registrar and Paying Agent may make reasonable rules for
their functions.
SECTION 12.08. Legal Holidays.
A "Legal Holiday" is any day other than a Business Day. If any specified
date (including a date for giving notice) is a Legal Holiday, the action to be
taken on such date shall be taken on the next succeeding day that is not a Legal
Holiday, and if such action is a payment in respect of any series of Debentures,
unless otherwise specified pursuant to Section 2.01 hereof, no principal,
premium (if any) or interest installment shall accrue for the intervening
period; except that if any interest payment is due on a Legal Holiday and the
next succeeding day is in the next succeeding calendar year, such payment shall
be made on the Business Day immediately preceding such Legal Holiday.
SECTION 12.09. Governing Law.
This Junior Indenture and each series of Debentures shall be governed by
and construed in accordance with the internal laws of the State of New York.
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SECTION 12.10. No Recourse Against Others.
No director, officer, employee or stockholder, as such, of the Company
shall have any liability for any obligations of the Company under the Debentures
or this Junior Indenture or for any claim based on, in respect of or by reason
of such obligations or their creation. By accepting a Debenture, each
Debentureholder shall waive and release all such liability. The waiver and
release shall be part of the consideration for the issue of each series of
Debentures.
SECTION 12.11. Successors.
All agreements of the Company in this Junior Indenture and Debentures shall
bind its successors and assigns. All agreements of the Trustee in this Junior
Indenture shall bind its successors and assigns.
SECTION 12.12. Multiple Original Copies of this Junior Indenture.
The parties may sign any number of copies of this Junior Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement. Any signed copy shall be sufficient proof of this Junior Indenture.
SECTION 12.13. No Adverse Interpretation of Other Agreements.
This Junior Indenture may not be used to interpret another Junior
Indenture, loan or debt agreement of the Company or any subsidiary. Any such
Junior Indenture, loan or debt agreement may not be used to interpret this
Junior Indenture.
SECTION 12.14. Table of Contents; Headings, Etc.
The Table of Contents, Cross-Reference Table, and headings of the Articles
and Sections of this Junior Indenture have been inserted for convenience of
reference only, are not to be considered a part hereof, and shall in no way
modify or restrict any of the terms or provisions hereof.
SECTION 12.15. Benefits of this Junior Indenture.
Except as otherwise expressly provided herein with respect to holders of
Senior Indebtedness and holders of Trust Preferred Securities, nothing in this
Junior Indenture or in any series of Debentures, express or implied, shall give
to any person, other than the parties hereto and their successors hereunder and
the Holders of such series of Debentures, any benefit or any legal or equitable
right, remedy or claim under this Junior Indenture.
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SIGNATURES
IN WITNESS WHEREOF, the undersigned, being duly authorized, have executed
this Junior Indenture on behalf of the respective parties hereto as of the date
first above written.
MAUI ELECTRIC COMPANY, LIMITED
By: /s/ Paul Oyer
_____________________________
Paul A. Oyer
Financial Vice President
and Treasurer
By: /s/ Marvin A. Hawthorne
_____________________________
Marvin A. Hawthorne
Assistant Treasurer
THE BANK OF NEW YORK,
AS TRUSTEE
By: /s/ T.C. Knight
________________________________
Name: Thomas Knight
Title: Assistant Vice President
HAWAIIAN ELECTRIC COMPANY, INC.,
AS GUARANTOR
By: /s/ Paul Oyer
_____________________________
Paul A. Oyer
Financial Vice President
and Treasurer
By: /s/ Marvin A. Hawthorne
_____________________________
Marvin A. Hawthorne
Assistant Treasurer
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Exhibit A
[No. ME-1] $10,000,000
MAUI ELECTRIC COMPANY, LIMITED
7.30% JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURE,
SERIES 1998
MAUI ELECTRIC COMPANY, LIMITED, a Hawaii corporation (the "Company",
which term includes any successor corporation under the Junior Indenture
hereinafter referred to), for value received, hereby promises to pay to The Bank
of New York, as Property Trustee (the "Property Trustee") for, and for the
benefit of, HECO Capital Trust II (the "Trust") or registered assigns, the
principal sum of Ten Million Dollars ($10,000,000) on December 15, 2028, or on
such other date which may be established by the Company in accordance with the
terms of said Junior Indenture but which may not, in any event, be a date
earlier than December 15, 2003 or a date later than December 15, 2047, and to
pay interest on said principal sum from December 15, 1997 or from the most
recent Interest Payment Date (as defined below) to which interest has been paid
or duly provided for, quarterly in arrears on March 31, June 30, September 30
and December 31, commencing March 31, 1999 (each, an "Interest Payment Date"),
at the rate of 7.30% per annum until the principal hereof shall have become due
and payable, and on any overdue principal and (to the extent that payment of
such interest is enforceable under applicable law) on any overdue installment of
interest at the same rate per annum. The amount of interest payable on any
Interest Payment Date shall be computed on the basis of a 360-day year of twelve
30-day months, and for any period shorter than a full calendar month, interest
will be computed on the basis of the actual number of days elapsed in such
period. In the event that any Interest Payment Date is not a Business Day, then
interest will be payable on the next succeeding day that is a Business Day (and
without any interest or other payment in respect of any such delay), except
that, if such Business Day is in the next succeeding calendar year, such payment
shall be made on the immediately preceding Business Day (without any reduction
in interest or other payment in respect of such early payment), in each case
with the same force and effect as if made on such date. The interest installment
so payable, and punctually paid or duly provided for, on any Interest Payment
Date will, as provided in the Junior Indenture, be paid to the Person in whose
name this Debenture is registered at the close of business on the Regular Record
Date for such interest installment, as more fully provided in the Junior
Indenture. Any such interest installment not punctually paid or duly
<PAGE>
provided for shall forthwith cease to be payable to the Holder on such Regular
Record Date, and may be paid to the Person in whose name this Debenture is
registered at the close of business on a Special Record Date to be fixed by the
Trustee (as defined below) for the payment of such defaulted interest, notice
whereof shall be given to the Holders of the Series 1998 Debentures not less
than 7 calendar days prior to such Special Record Date, as more fully provided
in the Junior Indenture.
Payment of the principal of and interest on this Debenture will be
made in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts. If this
Debenture is not held by a depository or the Property Trustee, payment of any
interest on this Debenture (other than on the Stated Maturity Date or Redemption
Date) shall be made at the office of the Trustee in the City of New York or at
the office of such Paying Agent or Paying Agents as the Company may designate
from time to time, except that at the option of the Company payment of any
interest may be made (i) by check mailed to the address of the person entitled
thereto as such address shall appear in the Securities Register or (ii) by
transfer to an account maintained by the person entitled thereto as specified in
the Securities Register, provided that proper and timely transfer instructions
have been received by the Regular Record Date; provided, however, that at the
request of a Holder of at least $10,000,000 aggregate principal amount of Series
1998 Debentures, interest on such Debentures will be payable by wire transfer
within the continental United States in immediately available funds to the bank
account number specified in writing by such Holder to the Registrar prior to the
Regular Record Date.
If this Debenture is not held by a depository or the Property Trustee,
the principal amount hereof, any premium and any interest due on the Stated
Maturity Date or a Redemption Date (other than an Interest Payment Date) will be
paid only upon surrender of this Debenture at the principal corporate office of
The Bank of New York, Paying Agent, in New York, New York, or at such other
office or agency of the Paying Agent as the Company shall designate by written
notice to the Holder of this Debenture.
As long as this Debenture is held by the Property Trustee or if this
Debenture is held by a depository, any payments of principal of and premium, if
any, and interest on this Debenture will be made pursuant to the terms of the
Junior Indenture.
The indebtedness evidenced by this Debenture is, to the extent
provided in the Junior Indenture, subordinate and
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subject in right of payment to the prior payment in full of all Senior
Indebtedness, and this Debenture is issued subject to the provisions of the
Junior Indenture with respect thereto. The Holder of this Debenture, by
accepting the same, (a) agrees to and shall be bound by such provisions, (b)
authorizes and directs the Trustee on his behalf to take such action as may be
necessary or appropriate to acknowledge or effectuate the subordination so
provided and (c) appoints the Trustee his attorney-in-fact for any and all such
purposes. The Holder of this Debenture, by his acceptance hereof, hereby waives
all notice of the acceptance of the subordination provisions contained herein
and in the Junior Indenture by each holder of Senior Indebtedness, whether now
outstanding or hereafter incurred, and waives reliance by each such holder upon
said provisions.
This Debenture is one of a duly authorized series of Debentures of the
Company (herein sometimes referred to as the "Series 1998 Debentures"),
specified in the Junior Indenture, limited in aggregate principal amount to
$10,000,000, issued under and pursuant to a Junior Indenture dated as of
December 1, 1998 (the "Junior Indenture") executed and delivered between the
Company and The Bank of New York, as trustee (the "Trustee"). The Series 1998
Debentures are initially being issued to the Trust, to be held on behalf of the
Trust by its property trustee (the "Property Trustee"). Concurrently with the
issuance of the Series 1998 Debentures, the Trust is issuing its trust
securities, including the Trust's 7.30% Cumulative Quarterly Income Preferred
Securities, Series 1998 (the "Trust Preferred Securities"), representing common
and preferred undivided beneficial interests in the assets of the Trust and
having an aggregate liquidation preference equal to the aggregate principal
amount of (i) the Series 1998 Debentures, (ii) the HECO Series 1998 Debentures
issued by Hawaiian Electric Company, Inc., a Hawaii corporation and the
Company's sole owner ("HECO"), and (iii) the junior subordinated deferrable
interest debentures issued by Hawaii Electric Light Company, Inc., a Hawaii
corporation which is also a wholly-owned subsidiary of HECO. By the terms of the
Junior Indenture, Debentures are issuable in series which may vary as to amount,
date of maturity, rate of interest and in other respects as provided in the
Junior Indenture. Reference is made to the Junior Indenture for a description of
the rights, limitations of rights, obligations, duties and immunities thereunder
of the Trustee, the Company and Holders of the Debentures. Each term used in
this Debenture which is defined in the Junior Indenture and not defined herein
shall have the meaning assigned to it in the Junior Indenture.
At any time on or after December 15, 2003, at the option of the
Company, the Series 1998 Debentures shall be redeemable
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in whole or in part. Notwithstanding the foregoing, if a Special Event (as
defined in the HECO Junior Indenture) shall occur and be continuing, then, if
HECO opts to redeem the HECO Series 1998 Debentures pursuant to the HECO Junior
Indenture, the Series 1998 Debentures shall be redeemable in whole (but not in
part) on the same terms and at the same time as the HECO Series 1998 Debentures.
In the case of any redemption, a Series 1998 Debenture shall be redeemable at
100% of the principal amount thereof plus accrued and unpaid interest to the
Redemption Date.
At least 30 days but not more than 60 days before the Redemption Date,
the Trustee shall mail or caused to be mailed a notice of redemption by first-
class mail, postage prepaid, to each Holder of Series 1998 Debentures to be
redeemed.
The Series 1998 Debentures shall not be subject to any sinking fund.
Series 1998 Debentures in denominations larger than $25 may be redeemed in part
but only in integral multiples of $25.
In the event of redemption of this Debenture in part only, a new
Series 1998 Debenture or Debentures for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof.
In case an Event of Default with respect to the Series 1998 Debentures
occurs and is continuing, the principal of and interest on the Series 1998
Debentures may (and, in certain circumstances, shall) be declared, and upon such
declaration shall become, due and payable, in the manner, with the effect and
subject to the conditions provided in the Junior Indenture.
The Junior Indenture contains provisions for defeasance within one
year of the Stated Maturity Date of the entire indebtedness of this Debenture
upon compliance by the Company with certain conditions set forth therein.
Subject to certain exceptions in the Junior Indenture which require
the consent of every Holder, the Company and the Trustee may amend the Junior
Indenture or may waive future compliance by the Company with any provisions of
the Junior Indenture, with the consent of the Holders of at least a majority in
aggregate principal amount of the Series 1998 Debentures of each series affected
thereby; provided that if the Series 1998 Debentures are held by the Trust, no
such amendment or waiver that adversely affects the holders of the Trust
Preferred Securities shall be effective without the prior consent of the holders
of at least a majority in aggregate liquidation preference of the outstanding
Trust Preferred
4
<PAGE>
Securities. Subject to certain exceptions in the Junior Indenture, without the
consent of any Debentureholder, the Company and the Trustee may amend the Junior
Indenture to cure any ambiguity, defect or inconsistency, to bind a successor to
the obligations of the Junior Indenture, to provide for uncertificated
Debentures in addition to certificated Debentures, to comply with any
requirements of the Debentures and the Securities and Exchange Commission in
connection with the qualification of the Junior Indenture under the TIA;
provided that any such action does not adversely affect the rights of any
Debentureholder and, in the case of Series 1998 Debentures held by the Trust,
the rights of any holder of Trust Preferred Securities. Amendments bind all
Holders and subsequent Holders.
No reference herein to the Junior Indenture and no provision of this
Debenture or the Junior Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
interest on this Debenture at the time and place and at the rate and in the
money herein prescribed.
So long as no Event of Default with respect to the Series 1998
Debentures has occurred and is continuing, the Company shall have the right at
any time and from time to time to extend the interest payment period of the
Series 1998 Debentures for up to 20 consecutive quarters (the "Extension
Period"); provided that no Extension Period shall extend beyond the Stated
Maturity Date or Redemption Date of any Series 1998 Debenture. At the end of
the Extension Period, the Company shall pay all interest then accrued and unpaid
(together with interest thereon at the rate specified for the Series 1998
Debentures, compounded quarterly, to the extent that payment of such interest is
enforceable under applicable law). During such Extension Period, subject to
certain exceptions contained in the Junior Indenture, the Company may
not, directly or indirectly through a subsidiary, (i) declare or pay any
dividends or distributions on, or redeem, purchase, acquire or make a
liquidation payment with respect to any of its capital stock, (ii) make any
payment of principal, interest or premium, if any, on or repay, repurchase or
redeem any of its debt securities (including other Debentures) that rank pari
passu with or junior in interest to the Series 1998 Debentures, or (iii) make
any guarantee payments with respect to any guarantee issued by the Company if
such guarantee ranks pari passu with or junior in interest to the Debentures.
Prior to the termination of any such Extension Period, the Company may further
extend such Extension Period; provided that such Extension Period, together with
all such previous and further extensions, shall not exceed 20 consecutive
quarters and shall not extend beyond the Stated Maturity Date or Redemption Date
5
<PAGE>
of any Series 1998 Debenture. At the termination of any such Extension Period
and upon the payment of all amounts then due, the Company may elect to begin a
new Extension Period, subject to the foregoing restrictions.
Series 1998 Debentures are issuable only in registered form without
coupons in denominations of $25 and any integral multiple thereof. As provided
in the Junior Indenture and subject to certain limitations therein set forth,
this Debenture is exchangeable for a like aggregate principal amount of Series
1998 Debentures of a different authorized denomination, as requested by the
Holder surrendering the same.
As provided in the Junior Indenture and subject to certain limitations
therein set forth, this Debenture is transferable by the Holder hereof upon
surrender of this Debenture for registration of transfer at the office or agency
of the Registrar accompanied by a written instrument or instruments of transfer
in form satisfactory to the Registrar duly executed by the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Series 1998
Debentures of authorized denominations and for the same aggregate principal
amount will be issued to the designated transferee or transferees. No service
charge will be made for any such transfer, but the Company may require payment
of a sum sufficient to cover any tax or other governmental charge payable in
relation thereto.
Prior to presentment for registration of transfer of this Debenture,
the Company, the Trustee, any Paying Agent and any Registrar may deem and treat
the Holder hereof as the absolute owner hereof (whether or not this Debenture
shall be overdue and notwithstanding any notice of ownership or writing
hereon made by anyone other than the Registrar) for the purpose of receiving
payment of or on account of the principal hereof and interest due hereon and for
all other purposes, and neither the Company nor the Trustee nor any Paying Agent
nor any Registrar shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of or the
interest on this Debenture, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Junior Indenture, against any
incorporator, stockholder, officer or director, past, present or future, as
such, of the Company or of any predecessor or successor corporation, 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.
6
<PAGE>
This Debenture shall not be valid until an authorized signatory of the
Trustee manually signs and dates the Trustee's Certificate of Authentication
below.
This Debenture will be governed by and construed under the internal
laws of the State of New York.
IN WITNESS WHEREOF, the Company has caused this Debenture to be signed
manually or by facsimile by its duly authorized officers and its corporate seal
or a facsimile thereof to be affixed hereto or imprinted hereon.
MAUI ELECTRIC COMPANY, LIMITED
By: _____________________________
Paul A. Oyer
Financial Vice President
and Treasurer
By: _____________________________
Marvin A. Hawthorne
Assistant Treasurer
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE DEBENTURES, OF THE SERIES DESIGNATED, REFERRED TO IN THE
WITHIN-MENTIONED JUNIOR INDENTURE.
THE BANK OF NEW YORK, as Trustee
By: _____________________________
Authorized Signatory
Dated: December 15, 1998
7
<PAGE>
ASSIGNMENT FORM
To assign this Debenture, fill in the form below: (I) or (we) assign
and transfer this Debenture to:
________________________________________________________________________________
(Insert assignee's social security or tax I.D. number)
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint ____________________ agent to transfer this Debenture on
the books of the Securities Register. The agent may substitute another to act
for him.
Dated: __________________ Signature: ______________________
(Sign exactly as your name appears
on the other side of this Debenture)
Signature Guaranty: ____________________
<PAGE>
EXHIBIT 4(i)
EXPENSE AGREEMENT
-----------------
AGREEMENT dated as of December 1, 1998, between Hawaiian Electric
Company, Inc., a Hawaii corporation ("HECO"), Maui Electric Company, Limited, a
Hawaii corporation ("MECO"), Hawaii Electric Light Company, Inc., a Hawaii
corporation ("HELCO") and HECO Capital Trust I, a Delaware statutory business
trust (the "Trust").
WHEREAS, the Trust intends to issue and sell its Common Securities
(the "Common Securities") to HECO and to issue and sell in a registered public
offering its 7.30% Cumulative Quarterly Income Preferred Securities, Series
1998, (the "Trust 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 December 1, 1998, as the same may be
amended from time to time (the "Trust Agreement");
WHEREAS, HECO will own all of the Common Securities of the Trust, will
issue and sell its 7.30% Junior Subordinated Deferrable Interest Debentures,
Series 1998 (the "HECO Debentures") to the Trust and will fully, irrevocably and
unconditionally guarantee the obligations of MECO and HELCO under their
respective 7.30% Junior Subordinated Deferrable Interest Debentures, Series 1998
(together with the HECO Debentures, the "Debentures"), which Debentures are to
be sold by MECO and HELCO to the Trust;
NOW, THEREFORE, in consideration of the purchase of the Trust
Preferred Securities by each holder, which purchase HECO, MECO and HELCO hereby
agree shall benefit each of them and which purchase HECO, MECO and HELCO
acknowledge will be made in reliance upon the execution and delivery of this
Agreement, HECO (including in its capacity as holder of the Common Securities),
MECO and HELCO and the Trust, hereby agree as follows:
ARTICLE I
Section 1.1. Agreement by HECO, MECO and HELCO to
------------------------------------
Pay Pro Rata Share of Expenses.
------------------------------
Subject to the terms and conditions hereof, HECO, MECO and HELCO
hereby agree for the benefit of each person or entity to whom the Trust is now
or hereafter becomes indebted or liable (the "Beneficiaries") to pay, when and
as due, each
<PAGE>
of their respective Pro Rata Shares of any and all Obligations (as hereinafter
defined) to such Beneficiaries. "Pro Rata Share" means the proportionate share
of the Obligations of each of HECO, MECO and HELCO based on the aggregate
principal amount of each of their respective Debentures held by the Trust. 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 Trust
Preferred Securities the amounts due such holders pursuant to the terms of the
Trust Preferred Securities. 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 1.2. HECO Guarantee.
--------------
HECO fully, irrevocably and unconditionally guarantees the payment in
full by each of MECO and HELCO of their respective Pro Rata Shares of the
Obligations (the "Guarantee"), regardless of any defense, right of setoff or
counterclaim that HECO may have or assert. HECO hereby waives notice of
acceptance of the Guarantee and of any liability to which it applies or may
apply, presentment, demand for payment, any right to require a proceeding first
against MECO or HELCO or any other person, firm or corporation before proceeding
against HECO, protest, notice of nonpayment or dishonor, notice of redemption,
and all other notices and demands. The obligations of HECO under the Guarantee
shall in no way be affected or impaired by reason of the happening from time to
time of any of (i) the release or waiver, by operation of law or otherwise, of
the performance or observance by MECO or HELCO of any obligation to be performed
or observed by it under this Agreement, (ii) any failure, omission, delay or
lack of diligence on the part of MECO or HELCO, (iii) the voluntary or
involuntary liquidation, dissolution, receivership, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization, or other similar
proceedings affecting MECO or HELCO or (iv) any other circumstance whatsoever
that might otherwise constitute a legal or equitable discharge or defense of a
guarantor, it being the intent of HECO that its obligations under the Guarantee
shall be irrevocable, absolute and unconditional under any and all circumstances
(and there shall be no obligation of any person, firm or corporation to give
notice to, or obtain consent of, HECO with respect to the happening of any of
the foregoing). The Guarantee constitutes a guarantee of performance and payment
and not collection. HECO acknowledges that its obligations under the Guarantee
are independent of the obligations of MECO or HELCO under this Agreement, and
that HECO shall be liable as principal and debtor under the Guarantee
notwithstanding the occurrence of any event referred to above.
2
<PAGE>
Section 1.3. Term of Agreement.
-----------------
This Agreement shall terminate and be of no further force and effect
upon the later of (a) the date on which full payment has been made of all
amounts payable to all holders of all the Trust Preferred Securities (whether
upon redemption, liquidation, exchange or otherwise) and (b) 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 Trust Preferred Securities or any Beneficiary must
restore payment of any sums paid under the Trust Preferred Securities, under any
Obligation, under the Trust Guarantee Agreement dated the date hereof by HECO
and The Bank of New York, as trust guarantee trustee, or under this Agreement
for any reason whatsoever. This Agreement is continuing, irrevocable,
unconditional and absolute.
Section 1.4. Waiver of Notice.
----------------
HECO, MECO and HELCO each hereby waives notice of acceptance of this
Agreement and of any Obligation to which it applies or may apply, and HECO, MECO
and HELCO each hereby waives presentment, demand for payment, protest, notice of
nonpayment, notice of dishonor, notice of redemption and all other notices and
demands.
Section 1.5. No Impairment.
-------------
The obligations, covenants, agreements and duties of HECO, MECO and
HELCO 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:
(a) 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;
(b) 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;
(c) the voluntary or involuntary liquidation, dissolution, sale of
any collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or
3
<PAGE>
readjustment of debt of, or other similar proceedings affecting, the Trust
or any of the assets of the Trust;
(d) the release or waiver, by operation of law or otherwise, of the
performance or observance by any Beneficiary of any express or implied
agreement, covenant, term or condition to be performed or observed
hereunder by any of HECO, HELCO or MECO, or any discharge, disallowance,
invalidity, illegality, voidness or other unenforceability thereof;
(e) any invalidity of, or defect or deficiency in, the Debentures;
(f) the settlement or compromise of any Obligation guaranteed hereby
or hereby incurred;
(g) any termination of or change in any relationship between HECO,
HELCO and MECO, including any resulting from a change in the ownership of
any of such companies; or
(h) to the extent permitted by law, any other circumstance whatsoever
that might otherwise constitute a legal or equitable discharge or defense
of a party to this Agreement, it being the intent of this Section 1.5 that
the Obligations shall be absolute and unconditional under any and all
circumstances.
There shall be no obligation of the Beneficiaries to give notice to, or obtain
the consent of, HECO, MECO or HELCO with respect to the happening of any of the
foregoing.
Section 1.6. Enforcement.
-----------
A Beneficiary may enforce this Agreement directly against HECO, MECO
and HELCO, jointly and severally, and HECO, MECO and HELCO each waives any right
or remedy to require that any action be brought against the Trust or any other
person or entity before proceeding against HECO, MECO or HELCO.
ARTICLE II
Section 2.1. Binding Effect.
--------------
This Agreement shall bind the successors, assigns, receivers, trustees
and representatives of each of HECO, MECO and HELCO and shall inure to the
benefit of the Beneficiaries.
4
<PAGE>
Section 2.2. Amendment.
---------
So long as there remains any Beneficiary or any Trust Preferred
Securities are outstanding, this Agreement shall not be modified or amended in
any manner adverse to such Beneficiary or to the holders of the Trust Preferred
Securities.
Section 2.3. 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), or by registered or
certified mail, addressed as follows (and if so given, shall be deemed given
when mailed):
If to the Trust:
HECO Capital Trust II
c/o The Bank of New York
101 Barclay Street, 21st Floor
New York, New York 10286
Facsimile No.: (212) 815-5915
Attention: Corporate Trust Trustee
Administration
If to HECO, MECO or HELCO:
Hawaiian Electric Company, Inc.
900 Richards Street
Honolulu, Hawaii 96813
Facsimile No.: (808) 543-7966
Attention: Treasurer
Section 2.4. Governing Laws.
--------------
This Agreement shall be governed by and construed and interpreted in
accordance with the laws of the State of New York (without regard to conflict of
laws principles).
5
<PAGE>
THIS AGREEMENT is executed as of the day and year first above written.
HAWAIIAN ELECTRIC COMPANY, INC.
By: /s/ Paul Oyer
-------------------------------------
Paul A. Oyer
Financial Vice President
and Treasurer
By: /s/ Marvin A. Hawthorne
-------------------------------------
Marvin A. Hawthorne
Assistant Treasurer
MAUI ELECTRIC COMPANY, LIMITED
By: /s/ Paul Oyer
-------------------------------------
Paul A. Oyer
Financial Vice President
and Treasurer
By: /s/ Marvin A. Hawthorne
-------------------------------------
Marvin A. Hawthorne
Assistant Treasurer
HAWAII ELECTRIC LIGHT COMPANY, INC.
By: /s/ Paul Oyer
-------------------------------------
Paul A. Oyer
Financial Vice President
and Treasurer
By: /s/ Marvin A. Hawthorne
-------------------------------------
Marvin A. Hawthorne
Assistant Treasurer
6
<PAGE>
HECO CAPITAL TRUST II
By:
-------------------------------------
T. Michael May, not in his
individual capacity, but solely as
Administrative Trustee
By:
-------------------------------------
Paul A. Oyer, not in his individual
capacity, but solely as
Administrative Trustee
By:
-------------------------------------
Lorie Ann Nagata, not in her
individual capacity, but solely as
Administrative Trustee
7
<PAGE>
EXHIBIT 4(j)
THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT TO THE EXTENT PROVIDED IN THE TRUST
AGREEMENT (AS DEFINED BELOW)
CERTIFICATE NO. NO. OF TRUST COMMON SECURITIES
- --------------- ------------------------------
TC-1 61,856
CERTIFICATE EVIDENCING TRUST COMMON SECURITIES
OF
HECO CAPITAL TRUST II
7.30% TRUST COMMON SECURITIES
(LIQUIDATION PREFERENCE $25 PER COMMON SECURITY)
HECO Capital Trust II, a statutory business trust created under the
laws of the State of Delaware (the "Trust"), hereby certifies that Hawaiian
Electric Company, Inc. (the "Holder") is the registered owner of sixty-one
thousand eight hundred fifty-six (61,856) common securities of the Trust
representing undivided beneficial interests in the assets of the Trust and
designated as the 7.30% Trust Common Securities (Liquidation Preference $25 per
Common Security) (the "Trust Common Securities"). Except as provided in Section
5.10 of the Trust Agreement (as defined below) the Trust Common Securities are
not transferable and any attempted transfer hereof shall be void. The
designations, rights, privileges, restrictions, preferences and other terms and
provisions of the Trust Common Securities are set forth in, and this certificate
and the Trust Common Securities represented hereby are issued and shall in all
respects be subject to the terms and provisions of, the Amended and Restated
Trust Agreement of the Trust dated as of December 1, 1998, as the same may be
amended from time to time (the "Trust Agreement"). The Trust will furnish a copy
of the Trust Agreement to the Holder without charge upon written request to the
Trust at its principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, the Undersigned Administrative Trustees of the
Trust have executed this certificate this 15th day of December, 1998.
HECO CAPITAL TRUST II
By: /s/ Paul Oyer By: /s/ Lorie Ann Nagata
__________________________ _____________________________
Name: Paul A. Oyer Name: Lorie Ann Nagata
Administrative Trustee Administrative Trustee
