Common use of Sale of Assets; Consolidation; Merger Clause in Contracts

Sale of Assets; Consolidation; Merger. (a) The Constituent Companies will not, and will not permit any of their Significant Subsidiaries to, Dispose of all or substantially all of its properties and assets to any Person; provided that this provision shall not apply to any such Disposition by (1) any Significant Subsidiary (other than the Company) to a Constituent Company or to any other Subsidiary (which is or by reason of such transfer becomes a Significant Subsidiary) in which a Constituent Company owns all of the voting capital stock or other equity or voting interests that are ordinarily entitled, in the absence of contingencies, to elect a majority of the directors (or Persons performing similar functions) of such Subsidiary or (2) the Company to the Parent Guarantor. (b) The Constituent Companies will not, and will not permit any of their Significant Subsidiaries to, consolidate with or merge into any other Person (other than a merger of a Significant Subsidiary (other than the Company) into, or a consolidation of a Significant Subsidiary (other than the Company) with, a Constituent Company or any other Subsidiary (which is or by reason of such transfer becomes a Significant Subsidiary) in which a Constituent Company owns all of the voting capital stock or other equity or voting interests that are ordinarily entitled, in the absence of contingencies, to elect a majority of the directors (or Persons performing similar functions) of such Subsidiary) or acquire all or substantially all the properties and assets of any Person unless: (1) in the case of a merger or consolidation involving the Parent Guarantor, the Parent Guarantor is the surviving corporation; (2) in the case of a merger or consolidation involving the Company and a Person other than the Parent Guarantor, the surviving corporation is either (i) the Company, (ii) MECO or (iii) another Subsidiary (which is or by reason of such transfer becomes a Significant Subsidiary) in which the Parent Guarantor owns all of the voting capital stock or other equity or voting interests that are ordinarily entitled, in the absence of contingencies, to elect a majority of the directors (or Persons performing similar functions) of such Subsidiary and, in the case of clauses (ii) and (iii) above, the Parent Guarantor shall have reaffirmed in writing its obligations under Section 13 and the conditions of Section 10.4(d) shall be satisfied; (3) after giving effect to any merger or consolidation or acquisition, the Constituent Companies are in pro forma compliance with Section 10.1; (4) no Default or Event of Default exists or results therefrom and is continuing; and (5) the holders of Notes shall have received prior to the consummation of any such merger, consolidation or acquisition, a certificate executed by a Senior Financial Officer of each Constituent Company as to each of the matters described in clauses (1) through (4) above. (c) Except as permitted by the provisions of clauses (a) and (b) of this Section 10.4, the Constituent Companies will not, and will not permit any of their Significant Subsidiaries to Dispose of any property, including the capital stock or similar Equity Interests of or other ownership interests in Subsidiaries owned by it, in one or more transactions, to any Person, other than (1) Dispositions in the ordinary course of business, (2) Dispositions by a Constituent Company or a Significant Subsidiary to a Constituent Company or to a Subsidiary (which is or by reason of such transfer becomes a Significant Subsidiary) in which a Constituent Company owns all of the voting capital stock or other equity or voting interests that are ordinarily entitled, in the absence of contingencies, to elect a majority of the directors (or Persons performing similar functions) of such Subsidiary, (3) Dispositions within 365 days of the acquisition or construction by a Constituent Company or a Significant Subsidiary of the assets so Disposed of, if a Constituent Company or a Significant Subsidiary shall concurrently with such Disposition lease back such assets as lessee, or (4) other Dispositions not otherwise permitted by this Section 10.4(c); provided that (i) after giving effect thereto, no Default or Event of Default shall have occurred and be continuing and (ii) the aggregate net book value of all property Disposed of pursuant to this Section 10.4(c)(4) during the period of 12 consecutive months ending on the date of such Disposition would not exceed (A) an amount equal to 15% of Consolidated Total Assets determined as of the end of the then most recently ended fiscal quarter of the Parent Guarantor and (B) in the case of a Disposition by the Company or any of its Significant Subsidiaries, an amount equal to 15% of the Company’s Consolidated Subsidiary Total Assets determined as of the end of the then most recently ended fiscal quarter of the Company. Notwithstanding the foregoing, the Constituent Companies may, or may permit any Significant Subsidiary to, make a Disposition of assets and such assets shall not be subject to, or included in, the foregoing limitation and computation contained in clause (4) of the preceding paragraph to the extent, and from the date, that the Net Cash Proceeds (if any) from such Disposition are, within 365 days of such Disposition, either (A) reinvested in (or used, directly or indirectly, to purchase or otherwise acquire) productive assets by a Constituent Company or a Significant Subsidiary to be used in the business of such Constituent Company or such Significant Subsidiary or (B) applied, or offered to be applied, to the payment or prepayment of any outstanding Indebtedness of a Constituent Company or a Significant Subsidiary other than, in the case of a Constituent Company, outstanding Subordinated Debt (in connection with any offer to prepay, whether or not such offer is accepted by the applicable holder of such Indebtedness); provided that in the course of making such application or offer, the Company shall offer to prepay each outstanding Note of each series in accordance with Section 8.8 in a principal amount which equals the Ratable Portion for such Note. (d) The Parent Guarantor will not Dispose of any of the voting capital stock or other equity or voting interests that are ordinarily entitled, in the absence of contingencies, to vote in the election of directors of the Company or MECO; provided that this provision shall not prohibit the ability of either the Company or MECO (or both) to be merged into the Parent Guarantor or the Company or MECO to be merged into one another or into another Subsidiary (which is or by reason of such transfer becomes a Significant Subsidiary) in which a Constituent Company owns all of the voting capital stock or other equity or voting interests that are ordinarily entitled, in the absence of contingencies, to elect a majority of the directors (or Persons performing similar functions) of such Subsidiary (a “Surviving Subsidiary”); provided further that if the Company shall be merged into the Parent Guarantor, MECO or a Surviving Subsidiary, the Parent Guarantor, MECO or such Surviving Subsidiary, as applicable, shall have executed and delivered to each holder of the Notes its assumption of the due and punctual performance and observance of each covenant and condition of the Company under this Agreement and the Notes, the Parent Guarantor shall have confirmed in writing its guarantee of the Obligations so assumed (if the assumption is not by the Parent Guarantor) and the Parent Guarantor shall have caused to be delivered to each holder of the Notes an opinion of nationally recognized independent counsel, or other independent counsel reasonably satisfactory to the Required Holders, to the effect that all agreements or instruments effecting such assumption are enforceable in accordance with their terms and comply with the terms hereof; and provided further, that the limitation on Dispositions provided for in this Section 10.4(d) shall continue with respect to each Surviving Subsidiary.

Sale of Assets; Consolidation; Merger. (a) The Constituent Companies will not, and will not permit any of their Significant Subsidiaries to, Dispose of all or substantially all of its properties and assets to any Person; provided that this provision shall not apply to any such Disposition by (1) any Significant Subsidiary (other than the Company) to a Constituent Company or to any other Subsidiary (which is or by reason of such transfer becomes a Significant Subsidiary) in which a Constituent Company owns all of the voting capital stock or other equity or voting interests that are ordinarily entitled, in the absence of contingencies, to elect a majority of the directors (or Persons performing similar functions) of such Subsidiary or (2) the Company to the Parent Guarantor. (b) The Constituent Companies will not, and will not permit any of their Significant Subsidiaries to, consolidate with or merge into any other Person (other than a merger of a Significant Subsidiary (other than the Company) into, or a consolidation of a Significant Subsidiary (other than the Company) with, a Constituent Company or any other Subsidiary (which is or by reason of such transfer becomes a Significant Subsidiary) in which a Constituent Company owns all of the voting capital stock or other equity or voting interests that are ordinarily entitled, in the absence of contingencies, to elect a majority of the directors (or Persons performing similar functions) of such Subsidiary) or acquire all or substantially all the properties and assets of any Person unless: (1) in the case of a merger or consolidation involving the Parent Guarantor, the Parent Guarantor is the surviving corporation; (2) in the case of a merger or consolidation involving the Company and a Person other than the Parent Guarantor, the surviving corporation is either (i) the Company, (ii) MECO HELCO or (iii) another Subsidiary (which is or by reason of such transfer becomes a Significant Subsidiary) in which the Parent Guarantor owns all of the voting capital stock or other equity or voting interests that are ordinarily entitled, in the absence of contingencies, to elect a majority of the directors (or Persons performing similar functions) of such Subsidiary and, in the case of clauses (ii) and (iii) above, the Parent Guarantor shall have reaffirmed in writing its obligations under Section 13 and the conditions of Section 10.4(d) shall be satisfied; (3) after giving effect to any merger or consolidation or acquisition, the Constituent Companies are in pro forma compliance with Section 10.1; (4) no Default or Event of Default exists or results therefrom and is continuing; and (5) the holders of Notes shall have received prior to the consummation of any such merger, consolidation or acquisition, a certificate executed by a Senior Financial Officer of each Constituent Company as to each of the matters described in clauses (1) through (4) above. (c) Except as permitted by the provisions of clauses (a) and (b) of this Section 10.4, the Constituent Companies will not, and will not permit any of their Significant Subsidiaries to Dispose of any property, including the capital stock or similar Equity Interests of or other ownership interests in Subsidiaries owned by it, in one or more transactions, to any Person, other than (1) Dispositions in the ordinary course of business, (2) Dispositions by a Constituent Company or a Significant Subsidiary to a Constituent Company or to a Subsidiary (which is or by reason of such transfer becomes a Significant Subsidiary) in which a Constituent Company owns all of the voting capital stock or other equity or voting interests that are ordinarily entitled, in the absence of contingencies, to elect a majority of the directors (or Persons performing similar functions) of such Subsidiary, (3) Dispositions within 365 days of the acquisition or construction by a Constituent Company or a Significant Subsidiary of the assets so Disposed of, if a Constituent Company or a Significant Subsidiary shall concurrently with such Disposition lease back such assets as lessee, or (4) other Dispositions not otherwise permitted by this Section 10.4(c); provided that (i) after giving effect thereto, no Default or Event of Default shall have occurred and be continuing and (ii) the aggregate net book value of all property Disposed of pursuant to this Section 10.4(c)(4) during the period of 12 consecutive months ending on the date of such Disposition would not exceed (A) an amount equal to 15% of Consolidated Total Assets determined as of the end of the then most recently ended fiscal quarter of the Parent Guarantor and (B) in the case of a Disposition by the Company or any of its Significant Subsidiaries, an amount equal to 15% of the Company’s Consolidated Subsidiary Total Assets determined as of the end of the then most recently ended fiscal quarter of the Company. Notwithstanding the foregoing, the Constituent Companies may, or may permit any Significant Subsidiary to, make a Disposition of assets and such assets shall not be subject to, or included in, the foregoing limitation and computation contained in clause (4) of the preceding paragraph to the extent, and from the date, that the Net Cash Proceeds (if any) from such Disposition are, within 365 days of such Disposition, either (A) reinvested in (or used, directly or indirectly, to purchase or otherwise acquire) productive assets by a Constituent Company or a Significant Subsidiary to be used in the business of such Constituent Company or such Significant Subsidiary or (B) applied, or offered to be applied, to the payment or prepayment of any outstanding Indebtedness of a Constituent Company or a Significant Subsidiary other than, in the case of a Constituent Company, outstanding Subordinated Debt (in connection with any offer to prepay, whether or not such offer is accepted by the applicable holder of such Indebtedness); provided that in the course of making such application or offer, the Company shall offer to prepay each outstanding Note of each series in accordance with Section 8.8 in a principal amount which equals the Ratable Portion for such Note. (d) The Parent Guarantor will not Dispose of any of the voting capital stock or other equity or voting interests that are ordinarily entitled, in the absence of contingencies, to vote in the election of directors of the Company or MECOHELCO; provided that this provision shall not prohibit the ability of either the Company or MECO HELCO (or both) to be merged into the Parent Guarantor or the Company or MECO HELCO to be merged into one another or into another Subsidiary (which is or by reason of such transfer becomes a Significant Subsidiary) in which a Constituent Company owns all of the voting capital stock or other equity or voting interests that are ordinarily entitled, in the absence of contingencies, to elect a majority of the directors (or Persons performing similar functions) of such Subsidiary (a “Surviving Subsidiary”); provided further that if the Company shall be merged into the Parent Guarantor, MECO HELCO or a Surviving Subsidiary, the Parent Guarantor, MECO HELCO or such Surviving Subsidiary, as applicable, shall have executed and delivered to each holder of the Notes its assumption of the due and punctual performance and observance of each covenant and condition of the Company under this Agreement and the Notes, the Parent Guarantor shall have confirmed in writing its guarantee of the Obligations so assumed (if the assumption is not by the Parent Guarantor) and the Parent Guarantor shall have caused to be delivered to each holder of the Notes an opinion of nationally recognized independent counsel, or other independent counsel reasonably satisfactory to the Required Holders, to the effect that all agreements or instruments effecting such assumption are enforceable in accordance with their terms and comply with the terms hereof; and provided further, that the limitation on Dispositions provided for in this Section 10.4(d) shall continue with respect to each Surviving Subsidiary.

Sale of Assets; Consolidation; Merger. (a) The Constituent Companies Company will not, and will not permit any of their Significant Subsidiaries Subsidiary to, Dispose of all or substantially all of its properties and assets to any Person; provided that this provision shall not apply to any such Disposition by (1) any Significant Subsidiary (other than to the Company) to a Constituent Company or to any other Subsidiary (which is or by reason of such transfer becomes a Significant Subsidiary) in which a Constituent the Company owns all of the voting capital stock or other equity or voting interests that are ordinarily entitled, in the absence of contingencies, to elect a majority of the directors (or Persons performing similar functions) of such Subsidiary or (2) the Company to the Parent GuarantorSubsidiary. (b) The Constituent Companies Company will not, and will not permit any of their Significant Subsidiaries Subsidiary to, consolidate with or merge into any other Person (other than a merger of a Significant Subsidiary (other than the Company) into, or a consolidation of a Significant Subsidiary (other than the Company) with, a Constituent the Company or any other Subsidiary (which is or by reason of such transfer becomes a Significant Subsidiary) in which a Constituent the Company owns all of the voting capital stock or other equity or voting interests that are ordinarily entitled, in the absence of contingencies, to elect a majority of the directors (or Persons performing similar functions) of such Subsidiary) or acquire all or substantially all the properties and assets of any Person unless: (1) in the case of a merger or consolidation involving with the Parent GuarantorCompany, the Parent Guarantor Company is the surviving corporation; (2) in the case of a merger or consolidation involving the Company and a Person other than the Parent Guarantor, the surviving corporation is either (i) the Company, (ii) MECO or (iii) another Subsidiary (which is or by reason of such transfer becomes a Significant Subsidiary) in which the Parent Guarantor owns all of the voting capital stock or other equity or voting interests that are ordinarily entitled, in the absence of contingencies, to elect a majority of the directors (or Persons performing similar functions) of such Subsidiary and, in the case of clauses (ii) and (iii) above, the Parent Guarantor shall have reaffirmed in writing its obligations under Section 13 and the conditions of Section 10.4(d) shall be satisfied; (3) after giving effect to any merger or consolidation or acquisition, the Constituent Companies are Company is in pro forma compliance with Section 10.1; (43) no Default or Event of Default exists or results therefrom and is continuing; and (54) the holders of Notes shall have received prior to the consummation of any such merger, consolidation or acquisition, a certificate executed by a Senior Financial Officer of each Constituent Company as to each of the matters described in clauses (1) through (43) above. (c) Except as permitted by the provisions of clauses (a) and (b) of this Section 10.4, the Constituent Companies Company will not, and will not permit any of their Significant Subsidiaries Subsidiary to Dispose of any property, including the capital stock or similar Equity Interests of or other ownership interests in Subsidiaries owned by it, in one or more transactions, to any Person, other than (1) Dispositions in the ordinary course of business, (2) Dispositions by a Constituent the Company or a Significant Subsidiary to a Constituent the Company or to a Subsidiary (which is or by reason of such transfer becomes a Significant Subsidiary) in which a Constituent the Company owns all of the voting capital stock or other equity or voting interests that are ordinarily entitled, in the absence of contingencies, to elect a majority of the directors (or Persons performing similar functions) of such Subsidiary, (3) Dispositions within 365 days of after the acquisition or construction by a Constituent the Company or a Significant Subsidiary of the assets so Disposed of, if a Constituent the Company or a Significant Subsidiary shall concurrently with such Disposition lease back such assets as lessee, or (4) other Dispositions not otherwise permitted by this Section 10.4(c); provided that (i) after giving effect thereto, no Default or Event of Default shall have occurred and be continuing and (ii) the aggregate net book value of all property Disposed of pursuant to this Section 10.4(c)(4) during the period of 12 consecutive months ending on the date of such Disposition would not exceed (A) an amount equal to 15% of Consolidated Total Assets determined as of the end of the then most recently ended fiscal quarter of the Parent Guarantor and (B) in the case of a Disposition by the Company or any of its Significant Subsidiaries, an amount equal to 15% of the Company’s Consolidated Subsidiary Total Assets determined as of the end of the then most recently ended fiscal quarter of the Company. Notwithstanding the foregoing, the Constituent Companies Company may, or may permit any Significant Subsidiary to, make a Disposition of assets and such assets shall not be subject to, or included in, the foregoing limitation and computation contained in clause (4) of the preceding paragraph to the extent, and from the date, that the Net Cash Proceeds (if any) from such Disposition are, within 365 days of after such Disposition, either (A) reinvested in (or used, directly or indirectly, to purchase or otherwise acquire) productive assets by a Constituent the Company or a Significant Subsidiary to be used in the business of such Constituent the Company or such Significant Subsidiary or (B) applied, or offered to be applied, to the payment or prepayment of any outstanding Indebtedness of a Constituent the Company or a its Significant Subsidiary Subsidiaries other than, in the case of a Constituent the Company, outstanding Subordinated Debt (in connection with any offer to prepay, whether or not such offer is accepted by the applicable holder of such Indebtedness); provided that in the course of making such application or offer, the Company shall offer to prepay each outstanding Note of each series in accordance with Section 8.8 in a principal amount which equals the Ratable Portion for such Note. (d) The Parent Guarantor Company will not Dispose of any of the voting capital stock or other equity or voting interests that are ordinarily entitled, in the absence of contingencies, to vote in the election of directors of the Company Hawaii Electric Light or MECOMaui Electric; provided that this provision shall not prohibit the ability of either the Company Hawaii Electric Light or MECO Maui Electric (or both) to be merged into the Parent Guarantor or the Company or MECO to be merged into one another or into another Subsidiary (which is or by reason of such transfer becomes a Significant Subsidiary) in which a Constituent the Company owns all of the voting capital stock or other equity or voting interests that are ordinarily entitled, in the absence of contingencies, to elect a majority of the directors (or Persons performing similar functions) of such Subsidiary (a “Surviving Subsidiary”); and provided further that if the Company shall be merged into the Parent Guarantor, MECO or a Surviving Subsidiary, the Parent Guarantor, MECO or such Surviving Subsidiary, as applicable, shall have executed and delivered to each holder of the Notes its assumption of the due and punctual performance and observance of each covenant and condition of the Company under this Agreement and the Notes, the Parent Guarantor shall have confirmed in writing its guarantee of the Obligations so assumed (if the assumption is not by the Parent Guarantor) and the Parent Guarantor shall have caused to be delivered to each holder of the Notes an opinion of nationally recognized independent counsel, or other independent counsel reasonably satisfactory to the Required Holders, to the effect that all agreements or instruments effecting such assumption are enforceable in accordance with their terms and comply with the terms hereof; and provided further, that the limitation on Dispositions provided for in this Section 10.4(d) shall continue with respect to each Surviving Subsidiary.

Sale of Assets; Consolidation; Merger. (a) The Constituent Companies Company will not, and will not permit any of their Significant Subsidiaries Subsidiary to, Dispose of all or substantially all of its properties and assets to any Person; provided that this provision shall not apply to any such Disposition by (1) any Significant Subsidiary (other than to the Company) to a Constituent Company or to any other Subsidiary (which is or by reason of such transfer becomes a Significant Subsidiary) in which a Constituent the Company owns all of the voting capital stock or other equity or voting interests that are ordinarily entitled, in the absence of contingencies, to elect a majority of the directors (or Persons performing similar functions) of such Subsidiary or (2) the Company to the Parent GuarantorSubsidiary. (b) The Constituent Companies Company will not, and will not permit any of their Significant Subsidiaries Subsidiary to, consolidate with or merge into any other Person (other than a merger of a Significant Subsidiary (other than the Company) into, or a consolidation of a Significant Subsidiary (other than the Company) with, a Constituent the Company or any other Subsidiary (which is or by reason of such transfer becomes a Significant Subsidiary) in which a Constituent the Company owns all of the voting capital stock or other equity or voting interests that are ordinarily entitled, in the absence of contingencies, to elect a majority of the directors (or Persons performing similar functions) of such Subsidiary) or acquire all or substantially all the properties and assets of any Person unless: (1) in the case of a merger or consolidation involving with the Parent GuarantorCompany, the Parent Guarantor Company is the surviving corporation; (2) in the case of a merger or consolidation involving the Company and a Person other than the Parent Guarantor, the surviving corporation is either (i) the Company, (ii) MECO or (iii) another Subsidiary (which is or by reason of such transfer becomes a Significant Subsidiary) in which the Parent Guarantor owns all of the voting capital stock or other equity or voting interests that are ordinarily entitled, in the absence of contingencies, to elect a majority of the directors (or Persons performing similar functions) of such Subsidiary and, in the case of clauses (ii) and (iii) above, the Parent Guarantor shall have reaffirmed in writing its obligations under Section 13 and the conditions of Section 10.4(d) shall be satisfied; (3) after giving effect to any merger or consolidation or acquisition, the Constituent Companies are Company is in pro forma compliance with Section 10.1; (43) no Default or Event of Default exists or results therefrom and is continuing; and (54) the holders of Notes shall have received prior to the consummation of any such merger, consolidation or acquisition, a certificate executed by a Senior Financial Officer of each Constituent Company as to each of the matters described in clauses (1) through (43) above. (c) Except as permitted by the provisions of clauses (a) and (b) of this Section 10.4, the Constituent Companies Company will not, and will not permit any of their Significant Subsidiaries Subsidiary to Dispose of any property, including the capital stock or similar Equity Interests of or other ownership interests in Subsidiaries owned by it, in one or more transactions, to any Person, other than (1) Dispositions in the ordinary course of business, (2) Dispositions by a Constituent the Company or a Significant Subsidiary to a Constituent the Company or to a Subsidiary (which is or by reason of such transfer becomes a Significant Subsidiary) in which a Constituent the Company owns all of the voting capital stock or other equity or voting interests that are ordinarily entitled, in the absence of contingencies, to elect a majority of the directors (or Persons performing similar functions) of such Subsidiary, (3) Dispositions within 365 days of the acquisition or construction by a Constituent the Company or a Significant Subsidiary of the assets so Disposed of, if a Constituent the Company or a Significant Subsidiary shall concurrently with such Disposition lease back such assets as lessee, or (4) other Dispositions not otherwise permitted by this Section 10.4(c); provided that (i) after giving effect thereto, no Default or Event of Default shall have occurred and be continuing and (ii) the aggregate net book value of all property Disposed of pursuant to this Section 10.4(c)(4) during the period of 12 consecutive months ending on the date of such Disposition would not exceed (A) an amount equal to 15% of Consolidated Total Assets determined as of the end of the then most recently ended fiscal quarter of the Parent Guarantor and (B) in the case of a Disposition by the Company or any of its Significant Subsidiaries, an amount equal to 15% of the Company’s Consolidated Subsidiary Total Assets determined as of the end of the then most recently ended fiscal quarter of the Company. Notwithstanding the foregoing, the Constituent Companies Company may, or may permit any Significant Subsidiary to, make a Disposition of assets and such assets shall not be subject to, or included in, the foregoing limitation and computation contained in clause (4) of the preceding paragraph to the extent, and from the date, that the Net Cash Proceeds (if any) from such Disposition are, within 365 days of such Disposition, either (A) reinvested in (or used, directly or indirectly, to purchase or otherwise acquire) productive assets by a Constituent the Company or a Significant Subsidiary to be used in the business of such Constituent the Company or such Significant Subsidiary or (B) applied, or offered to be applied, to the payment or prepayment of any outstanding Indebtedness of a Constituent the Company or a its Significant Subsidiary Subsidiaries other than, in the case of a Constituent the Company, outstanding Subordinated Debt (in connection with any offer to prepay, whether or not such offer is accepted by the applicable holder of such Indebtedness); provided that in the course of making such application or offer, the Company shall offer to prepay each outstanding Note of each series in accordance with Section 8.8 in a principal amount which equals the Ratable Portion for such Note. (d) The Parent Guarantor Company will not Dispose of any of the voting capital stock or other equity or voting interests that are ordinarily entitled, in the absence of contingencies, to vote in the election of directors of the Company HELCO or MECO; provided that this provision shall not prohibit the ability of either the Company HELCO or MECO (or both) to be merged into the Parent Guarantor or the Company or MECO to be merged into one another or into another Subsidiary (which is or by reason of such transfer becomes a Significant Subsidiary) in which a Constituent the Company owns all of the voting capital stock or other equity or voting interests that are ordinarily entitled, in the absence of contingencies, to elect a majority of the directors (or Persons performing similar functions) of such Subsidiary (a “Surviving Subsidiary”); and provided further that if the Company shall be merged into the Parent Guarantor, MECO or a Surviving Subsidiary, the Parent Guarantor, MECO or such Surviving Subsidiary, as applicable, shall have executed and delivered to each holder of the Notes its assumption of the due and punctual performance and observance of each covenant and condition of the Company under this Agreement and the Notes, the Parent Guarantor shall have confirmed in writing its guarantee of the Obligations so assumed (if the assumption is not by the Parent Guarantor) and the Parent Guarantor shall have caused to be delivered to each holder of the Notes an opinion of nationally recognized independent counsel, or other independent counsel reasonably satisfactory to the Required Holders, to the effect that all agreements or instruments effecting such assumption are enforceable in accordance with their terms and comply with the terms hereof; and provided further, that the limitation on Dispositions provided for in this Section 10.4(d) shall continue with respect to each Surviving Subsidiary.

Sale of Assets; Consolidation; Merger. (a) The Constituent Companies will not, and will not permit any of their Significant Subsidiaries to, Dispose of all or substantially all of its properties and assets to any Person; provided that this provision shall not apply to any such Disposition by (1) any Significant Subsidiary (other than the Company) to a Constituent Company or to any other Subsidiary (which is or by reason of such transfer becomes a Significant Subsidiary) in which a Constituent Company owns all of the voting capital stock or other equity or voting interests that are ordinarily entitled, in the absence of contingencies, to elect a majority of the directors (or Persons performing similar functions) of such Subsidiary or (2) the Company to the Parent Guarantor. (b) The Constituent Companies will not, and will not permit any of their Significant Subsidiaries to, consolidate with or merge into any other Person (other than a merger of a Significant Subsidiary (other than the Company) into, or a consolidation of a Significant Subsidiary (other than the Company) with, a Constituent Company or any other Subsidiary (which is or by reason of such transfer becomes a Significant Subsidiary) in which a Constituent Company owns all of the voting capital stock or other equity or voting interests that are ordinarily entitled, in the absence of contingencies, to elect a majority of the directors (or Persons performing similar functions) of such Subsidiary) or acquire all or substantially all the properties and assets of any Person unless: (1) in the case of a merger or consolidation involving the Parent Guarantor, the Parent Guarantor is the surviving corporation; (2) in the case of a merger or consolidation involving the Company and a Person other than the Parent Guarantor, the surviving corporation is either (i) the Company, (ii) MECO Maui Electric or (iii) another Subsidiary (which is or by reason of such transfer becomes a Significant Subsidiary) in which the Parent Guarantor owns all of the voting capital stock or other equity or voting interests that are ordinarily entitled, in the absence of contingencies, to elect a majority of the directors (or Persons performing similar functions) of such Subsidiary and, in the case of clauses (ii) and (iii) above, the Parent Guarantor shall have reaffirmed in writing its obligations under Section 13 and the conditions of Section 10.4(d) shall be satisfied; (3) after giving effect to any merger or consolidation or acquisition, the Constituent Companies are in pro forma compliance with Section 10.1; (4) no Default or Event of Default exists or results therefrom and is continuing; and (5) the holders of Notes shall have received prior to the consummation of any such merger, consolidation or acquisition, a certificate executed by a Senior Financial Officer of each Constituent Company as to each of the matters described in clauses (1) through (4) above. (c) Except as permitted by the provisions of clauses (a) and (b) of this Section 10.4, the Constituent Companies will not, and will not permit any of their Significant Subsidiaries to Dispose of any property, including the capital stock or similar Equity Interests of or other ownership interests in Subsidiaries owned by it, in one or more transactions, to any Person, other than (1) Dispositions in the ordinary course of business, (2) Dispositions by a Constituent Company or a Significant Subsidiary to a Constituent Company or to a Subsidiary (which is or by reason of such transfer becomes a Significant Subsidiary) in which a Constituent Company owns all of the voting capital stock or other equity or voting interests that are ordinarily entitled, in the absence of contingencies, to elect a majority of the directors (or Persons performing similar functions) of such Subsidiary, (3) Dispositions within 365 days of after the acquisition or construction by a Constituent Company or a Significant Subsidiary of the assets so Disposed of, if a Constituent Company or a Significant Subsidiary shall concurrently with such Disposition lease back such assets as lessee, or (4) other Dispositions not otherwise permitted by this Section 10.4(c); provided that (i) after giving effect thereto, no Default or Event of Default shall have occurred and be continuing and (ii) the aggregate net book value of all property Disposed of pursuant to this Section 10.4(c)(4) during the period of 12 consecutive months ending on the date of such Disposition would not exceed (A) an amount equal to 15% of Consolidated Total Assets determined as of the end of the then most recently ended fiscal quarter of the Parent Guarantor and (B) in the case of a Disposition by the Company or any of its Significant Subsidiaries, an amount equal to 15% of the Company’s Consolidated Subsidiary Total Assets determined as of the end of the then most recently ended fiscal quarter of the Company. Notwithstanding the foregoing, the Constituent Companies may, or may permit any Significant Subsidiary to, make a Disposition of assets and such assets shall not be subject to, or included in, the foregoing limitation and computation contained in clause (4) of the preceding paragraph to the extent, and from the date, that the Net Cash Proceeds (if any) from such Disposition are, within 365 days of after such Disposition, either (A) reinvested in (or used, directly or indirectly, to purchase or otherwise acquire) productive assets by a Constituent Company or a Significant Subsidiary to be used in the business of such Constituent Company or such Significant Subsidiary or (B) applied, or offered to be applied, to the payment or prepayment of any outstanding Indebtedness of a Constituent Company or a Significant Subsidiary other than, in the case of a Constituent Company, outstanding Subordinated Debt (in connection with any offer to prepay, whether or not such offer is accepted by the applicable holder of such Indebtedness); provided that in the course of making such application or offer, the Company shall offer to prepay each outstanding Note of each series in accordance with Section 8.8 in a principal amount which equals the Ratable Portion for such Note. (d) The Parent Guarantor will not Dispose of any of the voting capital stock or other equity or voting interests that are ordinarily entitled, in the absence of contingencies, to vote in the election of directors of the Company or MECOMaui Electric; provided that this provision shall not prohibit the ability of either the Company or MECO Maui Electric (or both) to be merged into the Parent Guarantor or the Company or MECO Maui Electric to be merged into one another or into another Subsidiary (which is or by reason of such transfer becomes a Significant Subsidiary) in which a Constituent Company owns all of the voting capital stock or other equity or voting interests that are ordinarily entitled, in the absence of contingencies, to elect a majority of the directors (or Persons performing similar functions) of such Subsidiary (a “Surviving Subsidiary”); provided further that if the Company shall be merged into the Parent Guarantor, MECO Maui Electric or a Surviving Subsidiary, the Parent Guarantor, MECO Maui Electric or such Surviving Subsidiary, as applicable, shall have executed and delivered to each holder of the Notes its assumption of the due and punctual performance and observance of each covenant and condition of the Company under this Agreement and the Notes, the Parent Guarantor shall have confirmed in writing its guarantee of the Obligations so assumed (if the assumption is not by the Parent Guarantor) and the Parent Guarantor shall have caused to be delivered to each holder of the Notes an opinion of nationally recognized independent counsel, or other independent counsel reasonably satisfactory to the Required Holders, to the effect that all agreements or instruments effecting such assumption are enforceable in accordance with their terms and comply with the terms hereof; and provided further, that the limitation on Dispositions provided for in this Section 10.4(d) shall continue with respect to each Surviving Subsidiary.

Sale of Assets; Consolidation; Merger. (a) The Constituent Companies will not, and will not permit any of their Significant Subsidiaries to, Dispose of all or substantially all of its properties and assets to any Person; provided that this provision shall not apply to any such Disposition by (1) any Significant Subsidiary (other than the Company) to a Constituent Company or to any other Subsidiary (which is or by reason of such transfer becomes a Significant Subsidiary) in which a Constituent Company owns all of the voting capital stock or other equity or voting interests that are ordinarily entitled, in the absence of contingencies, to elect a majority of the directors (or Persons performing similar functions) of such Subsidiary or (2) the Company to the Parent Guarantor. (b) The Constituent Companies will not, and will not permit any of their Significant Subsidiaries to, consolidate with or merge into any other Person (other than a merger of a Significant Subsidiary (other than the Company) into, or a consolidation of a Significant Subsidiary (other than the Company) with, a Constituent Company or any other Subsidiary (which is or by reason of such transfer becomes a Significant Subsidiary) in which a Constituent Company owns all of the voting capital stock or other equity or voting interests that are ordinarily entitled, in the absence of contingencies, to elect a majority of the directors (or Persons performing similar functions) of such Subsidiary) or acquire all or substantially all the properties and assets of any Person unless: (1) in the case of a merger or consolidation involving the Parent Guarantor, the Parent Guarantor is the surviving corporation; (2) in the case of a merger or consolidation involving the Company and a Person other than the Parent Guarantor, the surviving corporation is either (i) the Company, (ii) MECO Hawaii Electric Light or (iii) another Subsidiary (which is or by reason of such transfer becomes a Significant Subsidiary) in which the Parent Guarantor owns all of the voting capital stock or other equity or voting interests that are ordinarily entitled, in the absence of contingencies, to elect a majority of the directors (or Persons performing similar functions) of such Subsidiary and, in the case of clauses (ii) and (iii) above, the Parent Guarantor shall have reaffirmed in writing its obligations under Section 13 and the conditions of Section 10.4(d) shall be satisfied; (3) after giving effect to any merger or consolidation or acquisition, the Constituent Companies are in pro forma compliance with Section 10.1; (4) no Default or Event of Default exists or results therefrom and is continuing; and (5) the holders of Notes shall have received prior to the consummation of any such merger, consolidation or acquisition, a certificate executed by a Senior Financial Officer of each Constituent Company as to each of the matters described in clauses (1) through (4) above. (c) Except as permitted by the provisions of clauses (a) and (b) of this Section 10.4, the Constituent Companies will not, and will not permit any of their Significant Subsidiaries to Dispose of any property, including the capital stock or similar Equity Interests of or other ownership interests in Subsidiaries owned by it, in one or more transactions, to any Person, other than (1) Dispositions in the ordinary course of business, (2) Dispositions by a Constituent Company or a Significant Subsidiary to a Constituent Company or to a Subsidiary (which is or by reason of such transfer becomes a Significant Subsidiary) in which a Constituent Company owns all of the voting capital stock or other equity or voting interests that are ordinarily entitled, in the absence of contingencies, to elect a majority of the directors (or Persons performing similar functions) of such Subsidiary, (3) Dispositions within 365 days of after the acquisition or construction by a Constituent Company or a Significant Subsidiary of the assets so Disposed of, if a Constituent Company or a Significant Subsidiary shall concurrently with such Disposition lease back such assets as lessee, or (4) other Dispositions not otherwise permitted by this Section 10.4(c); provided that (i) after giving effect thereto, no Default or Event of Default shall have occurred and be continuing and (ii) the aggregate net book value of all property Disposed of pursuant to this Section 10.4(c)(4) during the period of 12 consecutive months ending on the date of such Disposition would not exceed (A) an amount equal to 15% of Consolidated Total Assets determined as of the end of the then most recently ended fiscal quarter of the Parent Guarantor and (B) in the case of a Disposition by the Company or any of its Significant Subsidiaries, an amount equal to 15% of the Company’s Consolidated Subsidiary Total Assets determined as of the end of the then most recently ended fiscal quarter of the Company. Notwithstanding the foregoing, the Constituent Companies may, or may permit any Significant Subsidiary to, make a Disposition of assets and such assets shall not be subject to, or included in, the foregoing limitation and computation contained in clause (4) of the preceding paragraph to the extent, and from the date, that the Net Cash Proceeds (if any) from such Disposition are, within 365 days of after such Disposition, either (A) reinvested in (or used, directly or indirectly, to purchase or otherwise acquire) productive assets by a Constituent Company or a Significant Subsidiary to be used in the business of such Constituent Company or such Significant Subsidiary or (B) applied, or offered to be applied, to the payment or prepayment of any outstanding Indebtedness of a Constituent Company or a Significant Subsidiary other than, in the case of a Constituent Company, outstanding Subordinated Debt (in connection with any offer to prepay, whether or not such offer is accepted by the applicable holder of such Indebtedness); provided that in the course of making such application or offer, the Company shall offer to prepay each outstanding Note of each series in accordance with Section 8.8 in a principal amount which equals the Ratable Portion for such Note. (d) The Parent Guarantor will not Dispose of any of the voting capital stock or other equity or voting interests that are ordinarily entitled, in the absence of contingencies, to vote in the election of directors of the Company or MECOHawaii Electric Light; provided that this provision shall not prohibit the ability of either the Company or MECO Hawaii Electric Light (or both) to be merged into the Parent Guarantor or the Company or MECO Hawaii Electric Light to be merged into one another or into another Subsidiary (which is or by reason of such transfer becomes a Significant Subsidiary) in which a Constituent Company owns all of the voting capital stock or other equity or voting interests that are ordinarily entitled, in the absence of contingencies, to elect a majority of the directors (or Persons performing similar functions) of such Subsidiary (a “Surviving Subsidiary”); provided further that if the Company shall be merged into the Parent Guarantor, MECO Hawaii Electric Light or a Surviving Subsidiary, the Parent Guarantor, MECO Hawaii Electric Light or such Surviving Subsidiary, as applicable, shall have executed and delivered to each holder of the Notes its assumption of the due and punctual performance and observance of each covenant and condition of the Company under this Agreement and the Notes, the Parent Guarantor shall have confirmed in writing its guarantee of the Obligations so assumed (if the assumption is not by the Parent Guarantor) and the Parent Guarantor shall have caused to be delivered to each holder of the Notes an opinion of nationally recognized independent counsel, or other independent counsel reasonably satisfactory to the Required Holders, to the effect that all agreements or instruments effecting such assumption are enforceable in accordance with their terms and comply with the terms hereof; and provided further, that the limitation on Dispositions provided for in this Section 10.4(d) shall continue with respect to each Surviving Subsidiary.

Sale of Assets; Consolidation; Merger. (a) The Constituent Companies Company will not, and will not permit any of their Significant Subsidiaries Subsidiary to, Dispose of all or substantially all of its properties and assets to any Person; provided that this provision shall not apply to any such Disposition by (1) any Significant Subsidiary (other than to the Company) to a Constituent Company or to any other Subsidiary (which is or by reason of such transfer becomes a Significant Subsidiary) in which a Constituent the Company owns all of the voting capital stock or other equity or voting interests that are ordinarily entitled, in the absence of contingencies, to elect a majority of the directors (or Persons performing similar functions) of such Subsidiary or (2) the Company to the Parent GuarantorSubsidiary. (b) The Constituent Companies Company will not, and will not permit any of their Significant Subsidiaries Subsidiary to, consolidate with or merge into any other Person (other than a merger of a Significant Subsidiary (other than the Company) into, or a consolidation of a Significant Subsidiary (other than the Company) with, a Constituent the Company or any other Subsidiary (which is or by reason of such transfer becomes a Significant Subsidiary) in which a Constituent the Company owns all of the voting capital stock or other equity or voting interests that are ordinarily entitled, in the absence of contingencies, to elect a majority of the directors (or Persons performing similar functions) of such Subsidiary) or acquire all or substantially all the properties and assets of any Person unless: (1) in the case of a merger or consolidation involving with the Parent GuarantorCompany, the Parent Guarantor Company is the surviving corporation; (2) in the case of a merger or consolidation involving the Company and a Person other than the Parent Guarantor, the surviving corporation is either (i) the Company, (ii) MECO or (iii) another Subsidiary (which is or by reason of such transfer becomes a Significant Subsidiary) in which the Parent Guarantor owns all of the voting capital stock or other equity or voting interests that are ordinarily entitled, in the absence of contingencies, to elect a majority of the directors (or Persons performing similar functions) of such Subsidiary and, in the case of clauses (ii) and (iii) above, the Parent Guarantor shall have reaffirmed in writing its obligations under Section 13 and the conditions of Section 10.4(d) shall be satisfied; (3) after giving effect to any merger or consolidation or acquisition, the Constituent Companies are Company is in pro forma compliance with Section 10.1; (43) no Default or Event of Default exists or results therefrom and is continuing; and (54) the holders of Notes shall have received prior to the consummation of any such merger, consolidation or acquisition, a certificate executed by a Senior Financial Officer of each Constituent Company as to each of the matters described in clauses (1) through (43) above. (c) Except as permitted by the provisions of clauses (a) and (b) of this Section 10.4, the Constituent Companies Company will not, and will not permit any of their Significant Subsidiaries Subsidiary to Dispose of any property, including the capital stock or similar Equity Interests of or other ownership interests in Subsidiaries owned by it, in one or more transactions, to any Person, other than (1) Dispositions in the ordinary course of business, (2) Dispositions by a Constituent the Company or a Significant Subsidiary to a Constituent the Company or to a Subsidiary (which is or by reason of such transfer becomes a Significant Subsidiary) in which a Constituent the Company owns all of the voting capital stock or other equity or voting interests that are ordinarily entitled, in the absence of contingencies, to elect a majority of the directors (or Persons performing similar functions) of such Subsidiary, (3) Dispositions within 365 days of the acquisition or construction by a Constituent the Company or a Significant Subsidiary of the assets so Disposed of, if a Constituent the Company or a Significant Subsidiary shall concurrently with such Disposition lease back such assets as lessee, or (4) other Dispositions not otherwise permitted by this Section 10.4(c); provided that (i) after giving effect thereto, no Default or Event of Default shall have occurred and be continuing and (ii) the aggregate net book value of all property Disposed of pursuant to this Section 10.4(c)(4) during the period of 12 consecutive months ending on the date of such Disposition would not exceed (A) an amount equal to 15% of Consolidated Total Assets determined as of the end of the then most recently ended fiscal quarter of the Parent Guarantor and (B) in the case of a Disposition by the Company or any of its Significant Subsidiaries, an amount equal to 15% of the Company’s Consolidated Subsidiary Total Assets determined as of the end of the then most recently ended fiscal quarter of the Company. Notwithstanding the foregoing, the Constituent Companies Company may, or may permit any Significant Subsidiary to, make a Disposition of assets and such assets shall not be subject to, or included in, the foregoing limitation and computation contained in clause (4) of the preceding paragraph to the extent, and from the date, that the Net Cash Proceeds (if any) from such Disposition are, within 365 days of such Disposition, either (A) reinvested in (or used, directly or indirectly, to purchase or otherwise acquire) productive assets by a Constituent the Company or a Significant Subsidiary to be used in the business of such Constituent the Company or such Significant Subsidiary or (B) applied, or offered to be applied, to the payment or prepayment of any outstanding Indebtedness of a Constituent the Company or a its Significant Subsidiary Subsidiaries other than, in the case of a Constituent the Company, outstanding Subordinated Debt (in connection with any offer to prepay, whether or not such offer is accepted by the applicable holder of such Indebtedness); provided that in the course of making such application or offer, the Company shall offer to prepay each outstanding Note of each series in accordance with Section 8.8 in a principal amount which equals the Ratable Portion for such Note. (d) The Parent Guarantor Company will not Dispose of any of the voting capital stock or other equity or voting interests that are ordinarily entitled, in the absence of contingencies, to vote in the election of directors of the Company HELCO or MECO; provided that this provision shall not prohibit the ability of either the Company HELCO or MECO (or both) to be merged into the Parent Guarantor or the Company or MECO to be merged into one another or into another Subsidiary (which is or by reason of such transfer becomes a Significant Subsidiary) in which a Constituent the Company owns all of the voting capital stock or other equity or voting interests that are ordinarily entitled, in the absence of contingencies, to elect a majority of the directors (or Persons performing similar functions) of such Subsidiary (a “Surviving Subsidiary”); and provided further that if the Company shall be merged into the Parent Guarantor, MECO or a Surviving Subsidiary, the Parent Guarantor, MECO or such Surviving Subsidiary, as applicable, shall have executed and delivered to each holder of the Notes its assumption of the due and punctual performance and observance of each covenant and condition of the Company under this Agreement and the Notes, the Parent Guarantor shall have confirmed in writing its guarantee of the Obligations so assumed (if the assumption is not by the Parent Guarantor) and the Parent Guarantor shall have caused to be delivered to each holder of the Notes an opinion of nationally recognized independent counsel, or other independent counsel reasonably satisfactory to the Required Holders, to the effect that all agreements or instruments effecting such assumption are enforceable in accordance with their terms and comply with the terms hereof; and provided further, that the limitation on Dispositions provided for in this Section 10.4(d) shall continue with respect to each Surviving Subsidiary.