Exhibit 4(q)
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AFFILIATE INVESTMENT INSTRUMENTS GUARANTEE AGREEMENT
HAWAIIAN ELECTRIC INDUSTRIES, INC.
DATED AS OF JANUARY __, 1997
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation......................... 2
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application....................... 5
SECTION 2.2 Lists of Holders of Securities......................... 6
SECTION 2.3 Reports by the Trust Preferred Guarantee Trustee....... 6
SECTION 2.4 Periodic Reports to the Trust Preferred Guarantee
Trustee................................................ 6
SECTION 2.5 Evidence of Compliance with Conditions Precedent....... 7
SECTION 2.6 Events of Default; Waiver.............................. 7
SECTION 2.7 Event of Default; Notice............................... 7
SECTION 2.8 Conflicting Interests.................................. 8
ARTICLE III
POWERS, DUTIES AND RIGHTS OF THE INVESTMENT GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Investment Guarantee Trustee.. 8
SECTION 3.2 Certain Rights of the Investment Guarantee Trustee..... 10
SECTION 3.3 Not Responsible for Recitals or Issuance of the
Investment Guarantee................................... 13
ARTICLE IV
THE INVESTMENT GUARANTEE TRUSTEE
SECTION 4.1 The Investment Guarantee Trustee; Eligibility.......... 13
SECTION 4.2 Appointment, Removal and Resignation of the Investment
Guarantee Trustee...................................... 14
SECTION 4.3 Successor to the Investment Guarantee Trustee by Merger,
Consolidation or Successor to Business................. 15
ARTICLE V
THE INVESTMENT GUARANTEE
SECTION 5.1 Guarantee............................................. 15
SECTION 5.2 Waiver of Notice and Demand........................... 16
SECTION 5.3 Obligations Not Affected.............................. 16
SECTION 5.4 Rights of Holders..................................... 17
SECTION 5.5 Guarantee of Payment.................................. 18
SECTION 5.6 Subrogation........................................... 18
SECTION 5.7 Independent Obligations............................... 18
ARTICLE VI
SUBORDINATION
SECTION 6.1 Ranking............................................... 18
ARTICLE VII
TERMINATION
SECTION 7.1 Termination........................................... 19
ARTICLE VIII
EXCULPATION AND INDEMNIFICATION
SECTION 8.1 Exculpation........................................... 19
SECTION 8.2 Indemnification....................................... 20
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Successors and Assigns................................ 20
SECTION 9.2 Amendments............................................ 21
SECTION 9.3 Merger of the Guarantor............................... 21
SECTION 9.4 Notices............................................... 21
SECTION 9.5 Benefit............................................... 22
SECTION 9.6 Governing Law......................................... 23
CROSS-REFERENCE TABLE*
SECTION OF SECTION OF
TRUST INDENTURE ACT GUARANTEE
OF 1939, AS AMENDED AGREEMENT
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310(a) 4.1(a)
310(b) 4.1(c), 2.8
310(c) Inapplicable
311(a) 2.2(b)
311(b) 2.2(b)
311(c) Inapplicable
312(a) 2.2(a)
312(b) 2.2(b)
313 2.3
314(a) 2.4
314(b) Inapplicable
314(c) 2.5
314(d) Inapplicable
314(e) 1.1, 2.5, 3.2
314(f) 2.1, 3.2
315(a) 3.1(d)
315(b) 2.7
315(c) 3.1
315(d) 3.1(d)
316(a) 1.1, 2.6, 5.4
316(b) 5.3
316(c) 9.2
317(a) Inapplicable
317(b) Inapplicable
318(a) 2.1(b)
318(b) 2.1
318(c) 2.1(a)
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* This Cross-Reference Table does not constitute part of this Affiliate
Investment Instrument Guarantee Agreement and shall not affect the
interpretation of any of its terms or provisions.
AFFILIATE INVESTMENT INSTRUMENTS GUARANTEE AGREEMENT
This AFFILIATE INVESTMENT INSTRUMENTS GUARANTEE AGREEMENT (this
"Investment Guarantee"), dated as of February __, 1997, is executed and
delivered by Hawaiian Electric Industries, Inc., a Hawaii corporation (the
"Guarantor"), and The Bank of New York, a New York banking corporation, as
trustee (the "Investment Guarantee Trustee"), for the benefit of the Holders (as
defined herein) of the Affiliate Debentures (as defined herein) of [NAME OF
ISSUER], a _______________ corporation (the "Issuer").
WHEREAS, pursuant to a Junior Subordinated Indenture (the "Affiliate
Indenture"), dated as of February __, 1997, between the Issuer and The Bank of
New York, as indenture trustee (in such capacity, the "Indenture Trustee"), the
Issuer is issuing to the Holders on the date hereof its __% Junior Subordinated
Debentures Due February __, 2017 (the "Affiliate Debentures");
WHEREAS, as incentive for the Holders to purchase the Affiliate
Debentures, the Guarantor desires irrevocably and unconditionally to agree to
make Guarantee Payments (as defined herein) to the Holders of the Affiliate
Debentures on the terms and conditions set forth herein; and
NOW, THEREFORE, in consideration of the purchase by the Holders of the
Affiliate Debentures, which purchase the Guarantor hereby agrees shall benefit
the Guarantor, the Guarantor executes and delivers this Investment Guarantee for
the benefit of the Holders.
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ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation
In this Investment Guarantee, unless the context otherwise requires:
(a) capitalized terms used in this Investment Guarantee but not
defined in the Preamble above have the respective meanings assigned to them in
this Section 1.1;
(b) capitalized terms used in this Investment Guarantee but not
otherwise defined herein shall have the meanings assigned to them in the
Affiliate Indenture;
(c) a term defined anywhere in this Investment Guarantee has the same
meaning throughout;
(d) all references to "this Investment Guarantee" are to this
Investment Guarantee as modified, supplemented or amended from time to time;
(e) all references in this Investment Guarantee to Articles and
Sections are to Articles and Sections of this Investment Guarantee, unless
otherwise specified;
(f) a term defined in the Trust Indenture Act has the same meaning
when used in this Investment Guarantee, unless otherwise defined in this
Investment Guarantee or unless the context otherwise requires; and
(g) a reference to the singular includes the plural and vice versa.
"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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"Agreement of Limited Partnership" means the Amended and Restated
Agreement of Limited Partnership of the Partnership, dated as of February __,
1997, among Hycap Management, Inc., a Delaware corporation, as general partner,
Hawaiian Electric Industries Capital Trust I, a Delaware statutory business
trust, as initial limited partner, and such other persons who become limited
partners as provided therein.
"Business Day" means a day other than a day on which banking
institutions in the City of New York, State of New York are authorized or
required by law to close.
"Corporate Trust Office" means the office of the Investment Guarantee
Trustee at which the corporate trust business of the Investment Guarantee
Trustee shall, at any particular time, be principally administered, which office
at the date of execution of this Agreement is located at 000 Xxxxxxx Xxxxxx,
00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
"Covered Person" means the Holder or any beneficial owner of the
Affiliate Debentures.
"Event of Default" means a default by the Guarantor on any of its
payment or other obligations under this Investment Guarantee.
"Guarantee Payments" means, with respect to the Affiliate Debentures,
to the extent not paid or made by the Issuer, the due and punctual payment of
the principal of and premium, if any, and interest on the Affiliate Debentures,
when and as the same shall become due and payable, whether at maturity or upon
declaration of acceleration or otherwise, according to the terms of the
Affiliate Debentures and of the Affiliate Indenture.
"Holder" shall mean any and each holder, as registered on the books
and records of the Issuer, of the Affiliate Debentures. The initial Holder of
the Affiliate Debentures is the Partnership.
"Indemnified Person" means the Investment Guarantee Trustee, any
Affiliate of the Investment Guarantee Trustee, or any officers, directors,
shareholders, members, partners, employees, representatives, nominees,
custodians or agents of the Investment Guarantee Trustee.
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"Investment Guarantee Trustee" means The Bank of New York, a New York
banking corporation, until a Successor Investment Guarantee Trustee has been
appointed and has accepted such appointment pursuant to the terms of this
Investment Guarantee and thereafter means each such Successor Investment
Guarantee Trustee.
"Majority in principal amount of the Affiliate Debentures" means,
except as provided by the Trust Indenture Act, a vote by Holders of the
Affiliate Debentures, voting separately as a class, of more than 50% of the
outstanding principal amount of the Affiliate Debentures plus accrued and unpaid
interest to the date upon which the voting percentages are determined.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by two authorized officers of such Person. Any Officers'
Certificate delivered with respect to compliance with a condition or covenant
provided for in this Investment Guarantee shall include:
(a) a statement that each officer signing the Officers' Certificate
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 each officer in rendering the Officers' Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such officer
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 each such officer,
such condition of covenant has been complied with.
"Partnership" means HEI Preferred Funding, LP, a Delaware limited
partnership.
"Partnership Preferred Securities" means those securities representing
limited partner interests in the Partnership.
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"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"Responsible Officer" means, with respect to the Investment Guarantee
Trustee, any officer within the Corporate Trust Office of the Investment
Guarantee Trustee, including any vice president, any assistant vice president,
any assistant secretary, any assistant treasurer or other officer of the
Corporate Trust Office of the Investment 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.
"Successor Investment Guarantee Trustee" means a successor Investment
Guarantee Trustee possessing the qualifications to act as Investment Guarantee
Trustee under Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended.
"Investment Guarantee Trustee" means The Bank of New York, a New York
banking corporation, until a Successor Investment Guarantee Trustee has been
appointed and has accepted such appointment pursuant to the terms of this
Investment Guarantee and thereafter means each such Successor Investment
Guarantee Trustee.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application
(a) This Investment Guarantee is subject to the provisions of the
Trust Indenture Act that are required to be part of this Investment Guarantee
and shall, to the extent applicable, be governed by such provisions.
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(b) If and to the extent that any provision of this Investment
Guarantee limits, qualifies or conflicts with the duties imposed by Sections 310
to 317, inclusive, of the Trust Indenture Act, the duties imposed by the Trust
Indenture Act shall control.
SECTION 2.2 Lists of Holders of Securities
(a) The Guarantor shall provide the Investment Guarantee Trustee with
a list, in such form as the Investment Guarantee Trustee may reasonably require,
of the names and addresses of the Holders of the Affiliate Debentures ("List of
Holders") as of such date, (i) within one (1) Business Day after January 1 and
June 30 of each year, and (ii) at any other time within 30 days of receipt by
the Guarantor of a written request for a List of Holders as of a date no more
than 14 days before such List of Holders is given to the Investment Guarantee
Trustee; provided, however, that the Guarantor shall not be obligated to provide
such List of Holders at any time the List of Holders does not differ from the
most recent List of Holders given to the Investment Guarantee Trustee by the
Guarantor. The Investment Guarantee Trustee may destroy any List of Holders
previously given to it on receipt of a new List of Holders.
(b) The Investment Guarantee Trustee shall comply with its obligations
under Sections 311(a), 311(b) and Section 312(b) of the Trust Indenture Act.
SECTION 2.3 Reports by the Trust Preferred Guarantee Trustee
Within 60 days after May 15 of each year, the Investment Guarantee
Trustee shall provide to the Holders of the Affiliate Debentures 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
Investment Guarantee Trustee shall also comply with the requirements of Section
313(d) of the Trust Indenture Act.
SECTION 2.4 Periodic Reports to the Trust Preferred Guarantee Trustee
The Guarantor shall provide to the Investment Guarantee Trustee such
documents, reports and information as required by Section 314 (if any) and the
compliance certificate required by Section 314 of the Trust Indenture Act in the
form, in the
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manner and at the times required by Section 314 of the Trust Indenture Act.
Delivery of such reports, information and documents to the Investment Guarantee
Trustee is for informational purposes only and the Investment Guarantee
Trustee's receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained
therein.
SECTION 2.5 Evidence of Compliance with Conditions Precedent
The Guarantor shall provide to the Investment Guarantee Trustee such
evidence of compliance with any conditions precedent, if any, provided for in
this Investment Guarantee that relate to any of the matters set forth in Section
314(c) of the Trust Indenture Act. Any certificate or opinion required to be
given by an officer pursuant to Section 314(c)(1) may be given in the form of an
Officers' Certificate.
SECTION 2.6 Events of Default; Waiver
The Holders of a Majority in liquidation amount of the Affiliate
Debentures may, by vote, on behalf of the Holders of the Affiliate 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
Investment Guarantee, but no such waiver shall extend to any subsequent or other
default or Event of Default or impair any right consequent thereon.
SECTION 2.7 Event of Default; Notice
(a) The Investment Guarantee Trustee shall, within 90 days after the
occurrence of an Event of Default, transmit by mail, first class postage
prepaid, to the Holders of the Affiliate Debentures, notices of all Events of
Default actually known to a Responsible Officer of the Investment Guarantee
Trustee, unless such defaults have been cured before the giving of such notice,
provided, that, the Investment Guarantee Trustee shall be protected in
withholding such notice if and so long as a Responsible Officer of the
Investment Guarantee Trustee in good faith determines that the withholding of
such notice is in the interests of the Holders of the Affiliate Debentures.
(b) The Investment Guarantee Trustee shall not be deemed to have
knowledge of any Event of Default unless the Investment Guarantee Trustee shall
have received written notice, or of which a Responsible Officer of the
Investment Guarantee Trustee
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charged with the administration of the Affiliate Debentures shall have obtained
actual knowledge.
SECTION 2.8 Conflicting Interests
The Affiliate Debentures shall be deemed to be specifically described
in this Investment Guarantee for the purposes of clause (i) of the first proviso
contained in Section 310(b) of the Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF THE INVESTMENT
GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Investment Guarantee Trustee
(a) This Investment Guarantee shall be held by the Investment
Guarantee Trustee for the benefit of the Holders of the Affiliate Debentures,
and the Investment Guarantee Trustee shall not transfer this Investment
Guarantee to any Person except a Holder of the Affiliate Debentures exercising
his or her rights pursuant to Section 5.4(b) or to a Successor Investment
Guarantee Trustee on acceptance by such Successor Investment Guarantee Trustee
of its appointment to act as Successor Investment Guarantee Trustee. The right,
title and interest of the Investment Guarantee Trustee shall automatically vest
in any Successor Investment Guarantee Trustee, 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 Investment
Guarantee Trustee.
(b) If an Event of Default actually known to a Responsible Officer of
the Investment Guarantee Trustee has occurred and is continuing, the Investment
Guarantee Trustee shall enforce this Investment Guarantee for the benefit of the
Holders of the Affiliate Debentures.
(c) The Investment Guarantee Trustee, during the period before the
occurrence of any Event of Default and during the period after the curing or
waiver of all Events of Default that may have occurred, shall undertake to
perform only such duties as are specifically set forth in this Investment
Guarantee, and no implied covenants shall be read into this Investment
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Guarantee against the Investment Guarantee Trustee. In case an Event of Default
has occurred (that has not been cured or waived pursuant to Section 2.6) and is
actually known to a Responsible Officer of the Investment Guarantee Trustee, the
Investment Guarantee Trustee shall exercise such of the rights and powers vested
in it by this Investment Guarantee, and use the same degree of care and skill in
its exercise thereof, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
(d) No provision of this Investment Guarantee shall be construed to
relieve the Investment Guarantee Trustee from liability for its own negligent
action, its own negligent failure to act, or its own willful misconduct, except
that:
(i) 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 Investment Guarantee
Trustee shall be determined solely by the express provisions of this
Investment Guarantee, and the Investment Guarantee Trustee shall not
be liable except for the performance of such duties and obligations as
are specifically set forth in this Investment Guarantee, and no
implied covenants or obligations shall be read into this Investment
Guarantee against the Investment Guarantee Trustee; and
(B) in the absence of bad faith on the part of the Investment
Guarantee Trustee, the Investment 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 Investment Guarantee Trustee and conforming to the
requirements of this Investment Guarantee; but in the case of any such
certificates or opinions that by any provision hereof are specifically
required to be furnished to the Investment Guarantee Trustee, the
Investment Guarantee Trustee shall be under a duty to examine the same
to determine whether or not they conform to the requirements of this
Investment Guarantee;
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(ii) the Investment Guarantee Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer of the
Investment Guarantee Trustee, unless it shall be proved that the Investment
Guarantee Trustee was negligent in ascertaining the pertinent facts upon
which such judgment was made;
(iii) the Investment 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 the Affiliate Debentures
relating to the time, method and place of conducting any proceeding for any
remedy available to the Investment Guarantee Trustee, or exercising any
trust or power conferred upon the Investment Guarantee Trustee under this
Investment Guarantee; and
(iv) no provision of this Investment Guarantee shall require the
Investment Guarantee Trustee to expend or risk its own funds or otherwise
incur personal financial liability in the performance of any of its duties
or in the exercise of any of its rights or powers, if the Investment
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 Investment Guarantee or indemnity, reasonably
satisfactory to the Investment Guarantee Trustee, against such risk or
liability is not reasonably assured to it.
SECTION 3.2 Certain Rights of the Investment Guarantee Trustee
(a) Subject to the provisions of Section 3.1:
(i) The Investment Guarantee Trustee may conclusively 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.
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(ii) Any direction or act of the Guarantor contemplated by this
Investment Guarantee shall be sufficiently evidenced by an Officers'
Certificate.
(iii) Whenever, in the administration of this Investment Guarantee,
the Investment Guarantee Trustee shall deem it desirable that a matter be
proved or established before taking, suffering or omitting any action
hereunder, the Investment Guarantee Trustee (unless other evidence is
herein specifically prescribed) may, in the absence of bad faith on its
part, request and conclusively rely upon an Officers' Certificate which,
upon receipt of such request, shall be promptly delivered by the Guarantor.
(iv) The Investment Guarantee Trustee shall have no duty to see to any
recording, filing or registration of any instrument (or any rerecording,
refiling or reregistration thereof).
(v) The Investment Guarantee Trustee may, at the expense of the
Guarantor, consult with counsel of its selection, and the advice or opinion
of such counsel with respect to legal matters 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 accordance with such advice or
opinion. Such counsel may be counsel to the Guarantor or any of its
Affiliates and may include any of its employees. The Investment Guarantee
Trustee shall have the right at any time to seek instructions concerning
the administration of this Investment Guarantee from any court of competent
jurisdiction.
(vi) The Investment Guarantee Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Investment
Guarantee at the request or direction of any Holder, unless such Holder
shall have provided to the Investment Guarantee Trustee such security and
indemnity, reasonably satisfactory to the Investment Guarantee Trustee,
against the costs, expenses (including attorneys' fees and expenses and the
expenses of the Investment Guarantee Trustee's agents, nominees or
custodians) and liabilities that might be incurred by it in complying with
such request or direction, including
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such reasonable advances as may be requested by the Investment Guarantee
Trustee; provided that, nothing contained in this Section 3.2(a)(vi) shall
be taken to relieve the Investment Guarantee Trustee, upon the occurrence
of an Event of Default, of its obligation to exercise the rights and powers
vested in it by this Investment Guarantee.
(vii) The Investment 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 Investment Guarantee
Trustee, in its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit.
(viii) The Investment Guarantee Trustee may execute any of the trusts
or powers hereunder or perform any duties hereunder either directly or by
or through agents, nominees, custodians or attorneys, and the Investment
Guarantee 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.
(ix) Any action taken by the Investment Guarantee Trustee or its
agents hereunder shall bind the Holders of the Affiliate Debentures, and
the signature of the Investment 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 Investment
Guarantee Trustee to so act or as to its compliance with any of the terms
and provisions of this Investment Guarantee, both of which shall be
conclusively evidenced by the Investment Guarantee Trustee or its agent
taking such action.
(x) Whenever in the administration of this Investment Guarantee the
Investment Guarantee Trustee shall deem it desirable to receive
instructions with respect to enforcing any remedy or right or taking any
other action hereunder, the Investment Guarantee Trustee (i) may request
instructions from the Holders of a Majority in liquidation amount of the
Affiliate
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Debentures, (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 conclusively relying on or acting in accordance with such
instructions.
(xi) The Investment 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 Investment Guarantee.
(b) No provision of this Investment Guarantee shall be deemed to impose any
duty or obligation on the Investment 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 Investment
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
Investment Guarantee Trustee shall be construed to be a duty.
SECTION 3.3 Not Responsible for Recitals or Issuance of the Investment
Guarantee
The recitals contained in this Investment Guarantee shall be taken as the
statements of the Guarantor, and the Investment Guarantee Trustee does not
assume any responsibility for their correctness. The Investment Guarantee
Trustee makes no representation as to the validity or sufficiency of this
Investment Guarantee.
ARTICLE IV
THE INVESTMENT GUARANTEE TRUSTEE
SECTION 4.1 The Investment Guarantee Trustee; Eligibility
(a) There shall at all times be an Investment Guarantee Trustee which
shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under the laws of
the United States of America or any State or Territory thereof or of the
District of Columbia,
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or a corporation or Person permitted by the Securities and Exchange
Commission to act as an institutional trustee under the Trust Indenture
Act, authorized under such laws to exercise corporate trust powers, having
a combined capital and surplus of at least 50 million U.S. dollars
($50,000,000), and subject to supervision or examination by Federal, State,
Territorial or District of Columbia authority. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of the supervising or examining authority referred to above,
then, for the purposes of this Section 4.1(a)(ii), 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 Investment Guarantee Trustee shall cease to be
eligible to so act under Section 4.1(a), the Investment Guarantee Trustee shall
immediately resign in the manner and with the effect set out in Section 4.2(c).
(c) If the Investment Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Investment Guarantee Trustee and Guarantor shall in all
respects comply with the provisions of Section 310(b) of the Trust Indenture
Act.
SECTION 4.2 Appointment, Removal and Resignation of the Investment Guarantee
Trustee
(a) Subject to Section 4.2(b), the Investment Guarantee Trustee may be
appointed or removed without cause at any time by the Guarantor except during an
Event of Default.
(b) The Investment Guarantee Trustee shall not be removed in accordance
with Section 4.2(a) until a Successor Investment Guarantee Trustee has been
appointed and has accepted such appointment by written instrument executed by
such Successor Investment Guarantee Trustee and delivered to the Guarantor.
(c) The Investment Guarantee Trustee appointed to office shall hold office
until a Successor Investment Guarantee Trustee shall have been appointed or
until its removal or resignation. The Investment Guarantee Trustee may resign
from
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office (without need for prior or subsequent accounting) by an instrument in
writing executed by the Investment Guarantee Trustee and delivered to the
Guarantor, which resignation shall not take effect until a Successor Investment
Guarantee Trustee has been appointed and has accepted such appointment by
instrument in writing executed by such Successor Investment Guarantee Trustee
and delivered to the Guarantor and the resigning Investment Guarantee Trustee.
(d) If no Successor Investment Guarantee Trustee shall have been appointed
and accepted appointment as provided in this Section 4.2 within 60 days after
delivery of an instrument of removal or resignation, the Investment Guarantee
Trustee resigning or being removed may petition any court of competent
jurisdiction for appointment of a Successor Investment Guarantee Trustee. Such
court may thereupon, after prescribing such notice, if any, as it may deem
proper, appoint a Successor Investment Guarantee Trustee.
(e) No Investment Guarantee Trustee shall be liable for the acts or
omissions to act of any Successor Investment Guarantee Trustee.
(f) Upon termination of this Investment Guarantee or removal or resignation
of the Investment Guarantee Trustee pursuant to this Section 4.2 and before the
appointment of any Successor Investment Guarantee Trustee, the Guarantor shall
pay to the Investment Guarantee Trustee all amounts to which it is entitled to
the date of such termination, removal or resignation.
SECTION 4.3 Successor to the Investment Guarantee Trustee by Merger,
Consolidation or Succession to Business
Any corporation into which the Investment Guarantee Trustee may be merged
or converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to the corporate trust business of the
Investment Guarantee Trustee, shall be the successor of the Investment Guarantee
Trustee hereunder, provided such corporation shall be qualified and eligible
under the provisions of Section 4.1(a), without the execution or filing of any
paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding.
ARTICLE V
THE INVESTMENT GUARANTEE
SECTION 5.1 Guarantee
The Guarantor irrevocably and unconditionally agrees to pay in full to the
Holders the Guarantee Payments (without duplication of amounts theretofore paid
by the Issuer), if, as and when due (after taking a valid extension of an
interest payment period by the Guarantor pursuant to the terms of the Affiliate
Debentures), regardless of any defense, right of setoff or counterclaim that the
Issuer may have or assert. The Guarantor's obligation to make a Guarantee
Payment may be satisfied by direct payment of
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the required amounts by the Guarantor to the Holders or by causing the Issuer to
pay such amounts to the Holders.
SECTION 5.2 Waiver of Notice and Demand
The Guarantor hereby waives notice of acceptance of this Investment
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 Issuer
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 5.3 Obligations Not Affected
The obligations, covenants, agreements and duties of the Guarantor under
this Investment Guarantee shall in no way be affected or impaired by reason of
the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied agreement,
covenant, term or condition relating to the Affiliate Debentures to be performed
or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or any
portion of the interest, principal or premiums, if any, or any other sums
payable under the terms of the Affiliate Debentures or the extension of time for
the performance of any other obligation under, arising out of, or in connection
with, the Affiliate Debentures (other than as provided in Section 5.1 with
respect to an extension of time for payment of interest during an Extension
Period);
(c) 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 Affiliate Debentures, or
any action on the part of the Holders granting indulgence or extension of any
kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors,
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reorganization, arrangement, composition or readjustment of debt of, or other
similar proceedings affecting, the Issuer or any of the assets of the Issuer;
(e) any invalidity of, or defect or deficiency in, the Affiliate
Debentures;
(f) the settlement or compromise of any obligation guaranteed hereby or
hereby incurred; or
(g) 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 5.3 that the obligations of the Guarantor hereunder shall be
absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or obtain
consent of, the Guarantor with respect to the happening of any of the foregoing.
SECTION 5.4 Rights of Holders
(a) The Holders of a Majority in principal amount of the Affiliate
Debentures have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Investment Guarantee Trustee in
respect of this Investment Guarantee or exercising any trust or power conferred
upon the Investment Guarantee Trustee under this Investment Guarantee.
(b) If the Investment Guarantee Trustee fails to enforce its rights under
the Investment Guarantee after a Holder of the Affiliate Debentures has made a
written request, such Holder of the Affiliate Debentures may institute a legal
proceeding directly against the Guarantor to enforce the Investment Guarantee
Trustee's rights under this Investment Guarantee, without first instituting a
legal proceeding against the Issuer, the Investment Guarantee Trustee or any
other Person. Notwithstanding the foregoing, if the Guarantor has failed to
make a Guarantee Payment, a Holder of the Affiliate Debentures may directly
institute a proceeding in such Holder's own name against the Guarantor for
enforcement of the Investment Guarantee for such payment. The Guarantor waives
any right or remedy to require that any action be brought first against the
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Issuer or any other person or entity before proceeding directly against the
Guarantor.
SECTION 5.5 Guarantee of Payment
This Investment Guarantee creates a guarantee of payment and not of
collection.
SECTION 5.6 Subrogation
The Guarantor shall be subrogated to all (if any) rights of the Holders of
Affiliate Debentures against the Issuer in respect of any amounts paid to such
Holders by the Guarantor under this Investment Guarantee; provided, however,
that the Guarantor shall not (except to the extent required by mandatory
provisions of law) be entitled to enforce or exercise any right that it may
acquire by way of subrogation or any indemnity, reimbursement or other
agreement, in all cases as a result of payment under this Investment Guarantee,
if, at the time of any such payment, any amounts are due and unpaid under this
Investment Guarantee. 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 5.7 Independent Obligations
The Guarantor acknowledges that its obligations hereunder are independent
of the obligations of the Issuer with respect to the Affiliate Debentures, and
that the Guarantor shall be liable as principal and as debtor hereunder to make
Guarantee Payments pursuant to the terms of this Investment Guarantee
notwithstanding the occurrence of any event referred to in subsections (a)
through (g), inclusive, of Section 5.3 hereof.
ARTICLE VI
SUBORDINATION
SECTION 6.1 Ranking
This Investment Guarantee will constitute an unsecured obligation of the
Guarantor and will rank (i) subordinate and junior in right of payment to all
other liabilities of the Guarantor, including, without limitation, the fees,
charges, expenses and indemnities due to the Property Trustee or the
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Delaware Trustee in respect of the Trust Agreement, to the Trust Guarantee
Trustee in respect of the Trust Preferred Securities Guarantee, to the
Partnership Guarantee Trustee in resect of the Partnership Guarantee and to the
Investment Guarantee Trustee in respect of this Investment Guarantee, (ii) pari
passu with (A) the most senior preferred or preference stock now or hereafter
issued by the Guarantor (B) the guarantee of any other Affiliate Investment
Instrument, (C) the Trust Guarantee, (D) the Partnership Guarantee, (E) any
guarantee hereafter entered into by the Guarantor in respect of any preferred
security (similar to the Trust Preferred Securities or the Partnership Preferred
Securities) of the Guarantor or any Affiliate of the Guarantor, and (F) any
other obligation of the Guarantor expressly stated to rank pari passu with this
Investment Guarantee or any of the foregoing, and (iii) senior to the
Guarantor's common stock.
ARTICLE VII
TERMINATION
SECTION 7.1 Termination
This Investment Guarantee shall terminate upon the repayment in full
(whether at maturity, upon redemption or otherwise) of all of the principal of,
interest on (including all accrued and unpaid interest thereon) and any other
amounts payable in respect of the Affiliate Debentures. Notwithstanding the
foregoing, this Investment Guarantee will continue to be effective or will be
reinstated, as the case may be, if at any time any Holder of the Affiliate
Debentures must restore payment of any sums paid under the Affiliate Debentures
or under this Investment Guarantee.
ARTICLE VIII
EXCULPATION AND INDEMNIFICATION
SECTION 8.1 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 Investment Guarantee
and in a manner that such Indemnified Person reasonably believed to be within
the scope of the authority
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conferred on such Indemnified Person by this Investment 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 of the Affiliate
Debentures might properly be paid.
SECTION 8.2 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 8.2 shall survive the termination of this
Investment Guarantee or the earlier resignation or removal of the Investment
Guarantee Trustee.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Successors and Assigns
All guarantees and agreements contained in this Investment Guarantee shall
bind the successors, assigns, receivers,
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trustees and representatives of the Guarantor and shall inure to the benefit of
the Holders of the Affiliate Debentures then outstanding.
SECTION 9.2 Amendments
Except with respect to any changes that do not materially adversely affect
the rights of Holders (in which case no consent of Holders will be required),
this Investment Guarantee may only be amended with the prior approval of the
holders of at least a majority in liquidation preference of the Partnership
Preferred Securities. The provisions of Section 14.3 of the Agreement of Limited
Partnership with respect to meetings of Holders of the Partnership Preferred
Securities apply to the giving of such approval.
SECTION 9.3 Merger of the Guarantor
The Guarantor covenants that it will not merge or consolidate with any
other corporation or other entity or sell or convey all or substantially all of
its assets to any person (other than such a sale or conveyance to a Subsidiary
or any successor thereto (such a sale or conveyance being called an "Asset Drop-
Down")), unless (i) either the Guarantor shall be the continuing corporation or
the successor corporation or other entity or the person which acquires by sale
or conveyance substantially all the assets of the Guarantor shall expressly
assume the obligations of the Guarantor hereunder, according to their tenor, and
the due and punctual performance and observance of all of the covenants hereof
to be performed or observed by the Guarantor, by instrument in form satisfactory
to the Investment Guarantee Trustee, executed and delivered to the Investment
Guarantee Trustee by such corporation or other entity, and (ii) the Guarantor or
such successor corporation or other entity, as the case may be, shall not,
immediately after such merger or consolidation, or such sale or conveyance, be
in default in the performance of any such covenant or condition. In the event
of any Asset Drop-Down after the date hereof, any subsequent sale or conveyance
of assets by a Subsidiary to which assets were transferred in such Asset Drop-
Down will be deemed to be a sale or conveyance of assets by the Company for
purposes of this provision.
SECTION 9.4 Notices
All notices provided for in this Investment Guarantee shall be in writing,
duly signed by the party giving such
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notice, and shall be delivered, telecopied or mailed by first class mail, as
follows:
(a) If given to the Investment Guarantee Trustee, at the Investment
Guarantee Trustee's mailing address set forth below (or such other address as
the Investment Guarantee Trustee may give notice of to the Holders of the
Affiliate Debentures):
The Bank of New York
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Trustee
Administration
Telecopy: (000) 000-0000
(b) If given to the Guarantor, at the Guarantor's mailing address set forth
below (or such other address as the Guarantor may give notice of to the Holders
of the Affiliate Debentures):
Hawaiian Electric Industries, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxx 00000
Attention: Treasurer
Telecopy: (000) 000-0000
(c) If given to any Holder of Affiliate Debentures, at the address set
forth on the books and records of the Issuer.
All such notices 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 9.5 Benefit
This Investment Guarantee is solely for the benefit of the Holders of the
Affiliate Debentures and, subject to SectionE3.1(a), is not separately
transferable from the Affiliate Debentures.
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SECTION 9.6 Governing Law
THIS INVESTMENT GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO THE CONFLICTS OF LAWS PRINCIPLES THEREOF.
This Investment Guarantee is executed as of the day and year first above
written.
HAWAIIAN ELECTRIC INDUSTRIES, INC., as Guarantor
By: _____________________________
Name:
Title:
By: _____________________________
Name:
Title:
THE BANK OF NEW YORK,
as Investment Guarantee Trustee
By: _____________________________
Name:
Title:
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