EXHIBIT 4(W)
EXPENSE AGREEMENT
AGREEMENT dated as of _______ __, 200_, between Hawaiian
Electric Industries, Inc., a Hawaii corporation (the "Company") and Hawaiian
Electric Industries Capital Trust II, a Delaware statutory trust (the "Trust").
WHEREAS, the Trust intends to issue and sell its Common
Securities (the "Common Securities") to the Company and to issue and sell in a
registered public offering its ____% Trust Preferred Securities (the "Trust
Preferred Securities") with such powers, preferences and special rights and
restrictions as are set forth in the Amended and Restated Trust Agreement of the
Trust dated as of ______ ___, 200_, as the same may be amended from time to time
(the "Trust Agreement");
WHEREAS, the Company will own all of the Common Securities of
the Trust, will issue and sell its ____% Junior Subordinated Debentures, Series
__, Due ____ (the "Company Debentures") to the Trust;
NOW, THEREFORE, in consideration of the purchase of the Trust
Preferred Securities by each holder, which purchase the Company hereby agrees
shall benefit it and which purchase the Company acknowledges will be made in
reliance upon the execution and delivery of this Agreement, the Company
(including in its capacity as holder of the Common Securities), and the Trust,
hereby agree as follows:
ARTICLE I
Section 1.1 Agreement by the Company to Pay Expenses.
Subject to the terms and conditions hereof, the Company hereby
agrees for the benefit of each person or entity to whom the Trust is now or
hereafter becomes indebted or liable (the "Beneficiaries") to pay, when and as
due, any and all Obligations (as hereinafter defined) to such Beneficiaries. As
used herein, "Obligations" means any indebtedness, expenses or liabilities of
the Trust, other than obligations of the Trust to pay to holders of any Trust
Preferred Securities the amounts due such holders pursuant to the terms of the
Trust Preferred Securities. This Agreement is intended to be for the benefit of,
and to be enforceable by, all such Beneficiaries, whether or not such
Beneficiaries have received notice hereof.
Section 1.2 Term of Agreement.
This Agreement shall terminate and be of no further force and
effect upon the later of (a) the date on which full payment has been made of all
amounts payable to all holders of all the Trust Preferred Securities (whether
upon redemption, liquidation,
exchange or otherwise) and (b) the date on which there are no Beneficiaries
remaining; provided, however, that this Agreement shall continue to be effective
or shall be reinstated, as the case may be, if at any time any holder of Trust
Preferred Securities or any Beneficiary must restore payment of any sums paid
under the Trust Preferred Securities, under any Obligation, under the Trust
Preferred Securities Guarantee Agreement dated the date hereof by the Company
and The Bank of New York, as trust guarantee trustee, or under this Agreement
for any reason whatsoever. This Agreement is continuing, irrevocable,
unconditional and absolute.
Section 1.3 Waiver of Notice.
The Company hereby waives notice of acceptance of this
Agreement and of any Obligation to which it applies or may apply, and the
Company hereby waives presentment, demand for payment, protest, notice of
nonpayment, notice of dishonor, notice of redemption and all other notices and
demands.
Section 1.4 No Impairment
The obligations, covenants, agreements and duties of the
Company under this Agreement shall in no way be affected or impaired by reason
of the happening from time to time of any of the following:
(a) the extension of time for the payment by the Trust of
all or any portion of the Obligations or for the performance of any
other obligation under, arising out of, or in connection with, the
Obligations;
(b) any failure, omission, delay or lack of diligence on
the part of the Beneficiaries to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Beneficiaries with respect
to the Obligations or any action on the part of the Trust granting
indulgence or extension of any kind;
(c) the voluntary or involuntary liquidation,
dissolution, sale of any collateral, receivership, insolvency,
bankruptcy, assignment for the benefit of creditors, reorganization,
arrangement, composition or readjustment of debt of, or other similar
proceedings affecting, the Trust or any of the assets of the Trust;
(d) the release or waiver, by operation of law or
otherwise, of the performance or observance by any Beneficiary of any
express or implied agreement, covenant, term or condition to be
performed or observed hereunder by the Company, or any discharge,
disallowance, invalidity, illegality, voidness or other
unenforceability thereof;
(e) any invalidity of, or defect or deficiency in, the
Debentures;
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(f) the settlement or compromise of any Obligation
guaranteed hereby or hereby incurred; or
(g) to the extent permitted by law, any other
circumstance whatsoever that might otherwise constitute a legal or
equitable discharge or defense of a party to this Agreement, it being
the intent of this Section 1.4 that the Obligations shall be absolute
and unconditional under any and all circumstances.
There shall be no obligation of the Beneficiaries to give notice to, or obtain
the consent of, the Company with respect to the happening of any of the
foregoing.
Section 1.5 Enforcement.
A Beneficiary may enforce this Agreement directly against the
Company, and the Company waives any right or remedy to require that any action
be brought against the Trust or any other person or entity before proceeding
against the Company.
ARTICLE II
Section 2.1 Binding Effect.
This Agreement shall bind the successors, assigns, receivers,
trustees and representatives of the Company and shall inure to the benefit of
the Beneficiaries.
Section 2.2 Amendment.
So long as there remains any Beneficiary or any Trust
Preferred Securities are outstanding, this Agreement shall not be modified or
amended in any manner adverse to such Beneficiary or to the holders of the Trust
Preferred Securities.
Section 2.3 Notices.
Any notice, request or other communication required or
permitted to be given hereunder shall be given in writing by delivering the same
against receipt therefor by facsimile transmission (confirmed by mail), or by
registered or certified mail, addressed as follows (and if so given, shall be
deemed given when mailed):
If to the Trust:
Hawaiian Electric Industries Capital Trust II
x/x Xxx Xxxx xx Xxx Xxxx
000 Xxxxxxx Xxxxxx, 0X
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: ____________
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Attention: Corporate Trust Administration
If to the Company:
Hawaiian Electric Industries, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Treasurer
Section 2.4 Governing Laws.
This Agreement shall be governed by and construed and
interpreted in accordance with the laws of the State of New York (without regard
to conflict of laws principles).
THIS AGREEMENT is executed as of the day and year first above
written.
HAWAIIAN ELECTRIC INDUSTRIES, INC.
By: ______________________________
Name: ________________________
Title: _______________________
By: ______________________________
Name: ________________________
Title: _______________________
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HAWAIIAN ELECTRIC INDUSTRIES
CAPITAL TRUST II
By: ______________________________
__________________, not in his
individual capacity, but
solely as Administrative
Trustee
By: ______________________________
________________, not in his
individual capacity, but
solely as Administrative
Trustee
By: ______________________________
_______________, not in her
individual capacity, but
solely as Administrative
Trustee
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