EXHIBIT 1
4,000,000 Trust Preferred Securities
HAWAIIAN ELECTRIC INDUSTRIES CAPITAL TRUST I
8.36% Trust Originated Preferred Securities (SM) ("TOPrS(SM)")*
(Liquidation Amount $25 per Trust Preferred Security)
guaranteed to the extent set forth herein by
HAWAIIAN ELECTRIC INDUSTRIES, INC.
PURCHASE AGREEMENT
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January 29, 1997
Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated
Xxxxxxx, Xxxxx & Co.
Xxxx Xxxxxx Xxxxxxxx Inc.
X.X. Xxxxxxx & Sons, Inc.
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated
Xxxxxx X. Xxxxx & Co., Incorporated
c/x Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
North Tower
World Financial Center
New York, New York 10281
Ladies and Gentlemen:
Hawaiian Electric Industries Capital Trust I (the "Trust"), a
statutory business trust organized under the Business Trust Act (the "Delaware
Trust Act") of the State of Delaware (Chapter 38, Title 12, of the Delaware
Code, 12 Del. C. Sections 3801 et seq.), HEI Preferred Funding, LP (the
"Partnership"), a limited partnership organized under the Revised Uniform
Limited Partnership Act (the "Delaware Partnership Act") of the State of
Delaware (Chapter 17, Title 6, of the Delaware Code, 6 Del. C. Sections 17101 et
seq.), and Hawaiian Electric Industries, Inc. (the "Company" and, together with
the Trust and the Partnership, the
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* "Trust Originated Preferred Securities" and "TOPrS" are service marks of
Xxxxxxx Xxxxx & Co., Inc.
"Offerors"), a Hawaii corporation, confirm their agreement (this "Agreement")
with Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated
("Xxxxxxx Xxxxx"), Xxxxxxx, Xxxxx & Co., Xxxx Xxxxxx Xxxxxxxx Inc., X.X. Xxxxxxx
& Sons, Inc., Xxxx Xxxxx Xxxx Xxxxxx, Incorporated and Xxxxxx X. Xxxxx & Co.,
Incorporated (collectively, the "Underwriters," which term shall also include
any underwriter substituted as hereinafter provided in Section 10 hereof), with
respect to the issue and sale by the Trust and the purchase by the Underwriters,
acting severally and not jointly, of the respective numbers of 8.36% Trust
Originated Preferred Securities (Liquidation Amount $25 per Trust Preferred
Security) representing preferred undivided beneficial ownership interests in the
assets of the Trust ("TOPrS" or the "Trust Preferred Securities") set forth in
Schedule A hereto. The Company will own all the common securities representing
undivided beneficial ownership interests in the assets of the Trust (the "Trust
Common Securities" and, together with the Trust Preferred Securities, the "Trust
Securities"). The Trust Securities will be issued pursuant to an Amended and
Restated Trust Agreement dated as of February 1, 1997 among the Company, as
Sponsor and Depositor, Xxxxxx X. Xxxxxx, Xxxxxx X. Xxxxxxx and Xxxxxxxxx X. Xxx,
as regular trustees (the "Regular Trustees"), The Bank of New York, a New York
banking corporation, as initial institutional trustee (the "Property Trustee"),
and The Bank of New York (Delaware), a Delaware banking corporation, as Delaware
trustee (the "Delaware Trustee" and, together with the Regular Trustees and the
Property Trustee, the "Issuer Trustees"), and the holders from time to time of
undivided beneficial interests in the assets of the Trust (the "Trust
Agreement"). The Trust Preferred Securities will be guaranteed by the Company,
to the extent set forth in the applicable Prospectus Supplement (as defined
herein), with respect to distributions and payments upon liquidation, redemption
and otherwise pursuant to, and to the extent set forth in, the Trust Preferred
Securities Guarantee Agreement dated as of February 1, 1997 between The Bank of
New York, as trustee (the "Trust Guarantee Trustee"), and the Company (the
"Trust Guarantee").
The proceeds from the sale of the Trust Securities will be used by the
Trust to purchase partnership preferred securities representing all of the
limited partner interests of the Partnership (the "Partnership Preferred
Securities"). All of the general partner interests of the Partnership will be
owned by Hycap Management, Inc. (the "General Partner"), a Delaware corporation
and wholly owned subsidiary of the Company. The Partnership Preferred
Securities will be issued pursuant to an Amended and Restated Agreement of
Limited Partnership dated as of February 1, 1997 among the General Partner, the
Trust, as initial limited partner, and such other persons who become limited
partners thereto (the "Agreement of Limited Partnership"), and will be
guaranteed by the Company, to the extent set forth in the applicable Prospectus
Supplement, with respect to distributions and payments upon liquidation,
redemption and otherwise pursuant to, and to the extent set forth in, the
Partnership Guarantee Agreement dated as of February 1, 1997 between The Bank of
New York, as trustee, and the Company (the "Partnership Guarantee" and, together
with the Trust Guarantee, the "Guarantees"). The Trust Preferred Securities and
the Trust Guarantee, together with the Partnership Preferred Securities and the
Partnership Guarantee, are referred to herein as the "Offered Securities."
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The Partnership will use the proceeds from the sale of the Partnership
Preferred Securities and the capital contribution of the General Partner to
initially acquire (i) debt instruments of the Company (the "Company
Debentures"), (ii) debt instruments of one or more subsidiaries of the Company
(each such subsidiary, an "Investment Subsidiary" and, together with the
Company, the "Investment Affiliates"; such debt instruments of the Investment
Subsidiaries, the "Subsidiary Debentures" and, together with the Company
Debentures, the "Affiliate Debentures") and (iii) certain U.S. government
obligations, commercial paper and certain other securities of entities not
affiliated with the Company. The Subsidiary Debentures are to be fully and
unconditionally guaranteed, on a subordinated basis, by the Company pursuant to,
and to the extent set forth in, an Affiliate Investment Instruments Guarantee
Agreement dated as of February 1, 1997 between The Bank of New York, as trustee
(the "Investment Guarantee Trustee"), and the Company (each, an "Investment
Guarantee"). Each of the Affiliate Debentures shall be issued pursuant to an
Indenture dated as of February 1, 1997 among The Bank of New York, as trustee
(the "Debt Trustee"), and the applicable Investment Affiliate (each, an
"Indenture").
The Offerors understand that the Underwriters propose to make a public
offering of the Offered Securities as soon as the Underwriters deem advisable
after this Agreement has been executed and delivered.
The Offerors have filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (File Nos. 333-18809,
000-00000-00, 000-00000-00, 000-00000-00 and 333-18809-04) covering the
registration under the Securities Act of 1933, as amended (the "1933 Act"), of,
among other securities, the Offered Securities. The prospectus forming a part
of such registration statement, at the time such registration statement (or the
most recent amendment thereto filed prior to the time of effectiveness of this
Agreement) became effective under the 1933 Act, including all documents
incorporated by reference therein at that time pursuant to Item 12 of Form S-3
under the 1933 Act, is hereinafter referred to as the "Basic Prospectus." In
the event that (i) the Basic Prospectus shall have been amended, revised or
supplemented (but excluding any amendments, revisions or supplements to the
Basic Prospectus relating solely to securities other than the Offered
Securities) prior to the time of effectiveness of this Agreement, including
without limitation by any preliminary prospectus supplement relating to the
Offered Securities, or (ii) the Company shall have filed documents pursuant to
Section 13, 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the
"1934 Act"), after the time such registration statement became effective under
the 1933 Act and prior to the time of effectiveness of this Agreement (but
excluding documents incorporated therein by reference relating solely to
securities other than the Offered Securities), which documents are deemed to be
incorporated by reference in the Basic Prospectus pursuant to Item 12 of Form S-
3 under the 1933 Act, the term "Basic Prospectus" as used herein shall also mean
such prospectus as so amended, revised or supplemented and reflecting such
incorporation by reference. Such registration statement in the form in which it
became effective under the 1933 Act and as it may have been amended by all
amendments thereto as of the time of effectiveness of this Agreement (including,
for these purposes, as an amendment any document incorporated by reference in
the Basic Prospectus pursuant to Item 12 of Form S-3 under the 1933 Act), and
the Basic Prospectus as it shall be supplemented to reflect the terms of the
offering and sale of the Offered Securities by a prospectus supplement (a
"Prospectus Supplement") to be filed with, or transmitted for filing to, the
Commission pursuant to Rule
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424(b) under the rules and regulations of the Commission under the 1933 Act (the
"1933 Act Regulations"), are hereinafter referred to as the "Registration
Statement" and the "Prospectus," respectively. For purposes of this Agreement,
all references to the Registration Statement or the Prospectus or any amendment
or supplement thereto shall be deemed to include the copy filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval
system ("XXXXX"). The Trust Agreement, the Guarantees, the Indenture relating
to the Company Debentures and each Investment Guarantee has been qualified under
the Trust Indenture Act of 1939, as amended (the "1939 Act").
All references in this Agreement to financial statements and schedules
and other information that is "contained," "included" or "stated" in the
Registration Statement or the Prospectus (or other references of like import)
shall be deemed to mean and include all such financial statements and schedules
and other information that is incorporated or deemed to be incorporated by
reference in the Registration Statement or the Prospectus, as the case may be;
and all references in this Agreement to amendments or supplements to the
Registration Statement or the Prospectus shall be deemed to mean and include the
filing of any document under the 1934 Act that is incorporated by reference in
the Registration Statement or the Prospectus, as the case may be.
SECTION 1. Representations and Warranties.
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(a) Representations and Warranties by Company. The Company represents
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and warrants to each Underwriter as of the date hereof, and as of the Closing
Time referred to in Section 2(b) hereof, as follows:
(i) Compliance with Registration Requirements. The Offerors meet
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the requirements for use of Form S-3 under the 1933 Act. The Registration
Statement has become effective under the 1933 Act and no stop order
suspending the effectiveness of the Registration Statement has been issued
under the 1933 Act and no proceedings for that purpose have been instituted
or are pending or, to the knowledge of the Company, are contemplated by the
Commission, and any request on the part of the Commission for additional
information has been complied with. The Registration Statement at the
Effective Date (as defined herein) complied in all material respects with
the requirements of the 1933 Act and the 1933 Act Regulations and the 1939
Act and the rules and regulations of the Commission under the 1939 Act (the
"1939 Act Regulations"), and did not contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading. At the
time the Prospectus is delivered to the Underwriters for their use in
making confirmations of sales of the Trust Preferred Securities and at the
Closing Time, the Prospectus and any amendments or supplements thereto will
comply in all material respects with the requirements of the 1933 Act and
the 1933 Act Regulations and will not contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading. The representations and warranties in this
paragraph (i) shall not apply to statements in or omissions from the
Registration Statement or the Prospectus (A) made in reliance upon and in
conformity with
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information furnished to the Company in writing by any Underwriter through
Xxxxxxx Xxxxx expressly for use in the Registration Statement or the
Prospectus which, for purposes of this Agreement, shall be deemed to
consist of the matters described in the last paragraph on page S-4 of the
Prospectus Supplement and in the first paragraph under the table set forth
under "Underwriting" in the Prospectus Supplement (collectively, the
"Underwriter Information") and (B) with respect to the statements of
eligibility on Form T-1 filed as exhibits to the Registration Statement.
The Prospectus delivered to the Underwriters for use in making
confirmations of sales of Trust Preferred Securities will be identical in
substance to the electronically transmitted copy thereof filed with the
Commission pursuant to XXXXX, except to the extent permitted by Regulation
S-T. As used in this Agreement, the term "Effective Date" shall mean the
later of (x) the date the Registration Statement, or any post-effective
amendment thereto, was declared effective by the Commission under the 1933
Act and (y) the date that the Company's most recent Annual Report on Form
10-K was filed with the Commission under the 1934 Act.
(ii) Incorporated Documents. The documents incorporated or
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deemed to be incorporated by reference in the Registration Statement and
the Prospectus, at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with the
requirements of the 1934 Act and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations"), and, when read together
with the other information in the Prospectus, at the Effective Date, at the
time the Prospectus was delivered to the Underwriters for their use in
making confirmations of sales of Trust Preferred Securities and at the
Closing Time, did not and will not contain an untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading.
(iii) Independent Accountants. The accountants who have audited
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the consolidated financial statements of the Company and Subsidiaries (as
defined herein) that are incorporated by reference in the Registration
Statement and the Prospectus are independent certified public accountants
as required by the 1933 Act and the 1933 Act Regulations.
(iv) No Material Adverse Change in Business. Otherwise than as
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set forth or contemplated in the Registration Statement and the Prospectus,
neither the Company nor any Subsidiaries has sustained since the date of
the most recent audited financial statements incorporated by reference in
the Registration Statement and the Prospectus any loss or interference with
its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental
action, order or decree, which loss or interference would have a material
adverse effect on the consolidated financial position, stockholders' equity
or results of operations of the Company and Subsidiaries taken as a whole;
and, since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any change in
the capital stock of the Company or any Significant Subsidiary (as defined
herein) (except for (i) issuances of capital stock of the Company pursuant
to dividend reinvestment, stock purchase, director or employee benefit
plans, (ii) issuances of capital stock by Hawaiian Electric Company, Inc.
("HECO") or its
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subsidiaries that have been approved by the Public Utilities Commission of
the State of Hawaii or by any other Significant Subsidiary as disclosed in
writing to the Underwriters and (iii) redemptions by HECO, Hawaii Electric
Light Company, Inc. ("HELCO") and Maui Electric Company, Limited ("MECO")
of their respective preferred stock in accordance with the terms thereof)
or any material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs, management,
financial position, stockholders' equity or results of operations of the
Company and Subsidiaries taken as a whole, otherwise than as set forth or
contemplated in the Registration Statement and the Prospectus.
(v) Good Standing of Company and Subsidiaries. The Company has
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been duly incorporated and is validly existing as a corporation in good
standing under the laws of the State of Hawaii, with corporate power and
authority to own or lease its properties and conduct its business as
described in the Registration Statement and the Prospectus; the Company
does not itself conduct any business or own or lease any property in any
jurisdiction outside the State of Hawaii that would require it to qualify
to do business as a foreign corporation and where the failure to be so
qualified would subject the Company to any material liability or
disability; the General Partner has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware, with corporate power and authority to own or lease its properties
and conduct its business as described in the Registration Statement and the
Prospectus. Each Significant Subsidiary (as defined herein) of the
Company, other than American Savings Bank, F.S.B. ("ASB") and the General
Partner, has been duly incorporated and is validly existing as a
corporation in good standing under the laws of its jurisdiction of
incorporation. As used in this Agreement, the term "Subsidiary" means each
corporation, at least a majority of the outstanding voting stock of which
is owned by the Company, by one or more Subsidiaries or by the Company and
one or more Subsidiaries.
(vi) Good Standing of ASB. ASB has been duly formed and is
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validly existing as a federal savings bank duly chartered and in good
standing under the laws of the United States; and, since the respective
dates as of which information is given in the Registration Statement and
the Prospectus, there have not been any increases in total non-accruing
loans or the provision for loan losses of ASB and its subsidiaries, which
increase or increases, individually or in the aggregate, would have a
material adverse effect on the consolidated financial position,
stockholders' equity or results of operations of the Company and
Subsidiaries taken as a whole.
(vii) Capitalization. The Company has an authorized
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capitalization as set forth in the Prospectus, and all of the issued shares
of capital stock of the Company have been duly and validly authorized and
issued and are fully paid and nonassessable; all of the issued shares of
capital stock of each Significant Subsidiary has been duly and validly
authorized and issued and is fully paid and nonassessable; and all of such
shares, other than shares of preferred stock, including the existing
preferred stock of HECO and its subsidiaries, is owned directly or
indirectly by the Company, free and clear of any liens, encumbrances or
security interests (other than the pledge by HECO of the shares of common
stock of HELCO and MECO under the indenture securing HECO's first
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mortgage bonds), except as described in the Registration Statement and the
Prospectus. The General Partner is the sole owner of general partner
interests of the Partnership.
(viii) Indentures and Affiliate Debentures. Each Indenture has
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been duly authorized, and at the Closing Time, will have been duly executed
and delivered by the applicable Investment Affiliate and, when duly
executed and delivered by the Debt Trustee, will constitute a valid and
binding agreement of such Investment Affiliate enforceable against such
Investment Affiliate in accordance with its terms, except as may be limited
by bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting enforcement of creditors' rights generally and by general
principles of equity (whether considered in a proceeding in equity or at
law) (the "Exceptions"). The Indenture relating to the Company Debentures
has been duly qualified under the 1939 Act. The Affiliate Debentures have
been duly authorized for issuance and sale to the Partnership and, at the
Closing Time, will have been duly executed by the applicable Investment
Affiliate and, when authenticated, issued and delivered in the manner
provided for in the applicable Indenture and delivered against payment of
the purchase price therefor as contemplated by this Agreement, will
constitute valid and legally binding obligations of such Investment
Affiliate enforceable against such Investment Affiliate in accordance with
their terms, except as may be limited by the Exceptions.
(ix) Trust Guarantee. The Trust Guarantee has been duly
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authorized and, at the Closing Time, will have been duly executed and
delivered by the Company and, when duly executed and delivered by the Trust
Guarantee Trustee, will constitute a valid and binding obligation of the
Company enforceable against the Company in accordance with its terms,
except as may be limited by the Exceptions. The Trust Guarantee has been
duly qualified under the 1939 Act.
(x) Partnership Guarantee. The Partnership Guarantee has been
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duly authorized and, at the Closing Time, will have been duly executed and
delivered by the Company and, when duly executed and delivered by the
Partnership Guarantee Trustee, will constitute a valid and binding
obligation of the Company enforceable against the Company in accordance
with its terms, except as may be limited by the Exceptions. The
Partnership Guarantee has been duly qualified under the 1939 Act.
(xi) Investment Guarantees. Each Investment Guarantee has been
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duly authorized and, at the Closing Time, will have been duly executed and
delivered by the Company and, when duly executed and delivered by the
Investment Guarantee Trustee, will constitute a valid and binding
obligation of the Company enforceable against the Company in accordance
with its terms, except as may be limited by the Exceptions. Each
Investment Guarantee has been duly qualified under the 1939 Act.
(xii) Prospectus Descriptions. The Offered Securities, the
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Trust Agreement, the Agreement of Limited Partnership, the Indentures and
the Investment Guarantees will conform in all material respects to the
respective statements relating thereto contained in the Prospectus.
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(xiii) Absence of Defaults and Conflicts. The execution,
---------------------------------
delivery and performance of the Trust Agreement, the Guarantees and each
Investment Guarantee by the Company, the Affiliate Debentures and the
Indentures by the applicable Investment Affiliate, the Agreement of Limited
Partnership by the General Partner and any other agreement or instrument
entered into or issued or to be entered into or issued by the Company, each
Investment Subsidiary or the General Partner in connection with the
transactions contemplated hereby or thereby or in the Registration
Statement and the Prospectus (including the issuance and sale of the
Offered Securities and the use of the proceeds from the sale of the Offered
Securities as described in the Prospectus under the caption "Use of
Proceeds") and the consummation of the transactions contemplated herein and
in the Registration Statement and the Prospectus and compliance by each of
the Company, each Investment Subsidiary or the General Partner with its
obligations hereunder and thereunder do not and will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, or result in the imposition of a lien or
security interest under, any material indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which it is a party or
by which it is bound or to which any of the property or assets used in the
conduct of its business is subject, nor will such action result in any
violation of the provisions of its charter or by-laws or any statute or any
order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Company or any Subsidiary or any of their
properties; and no consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body is
required for the performance by each of the Company, each Investment
Subsidiary and the General Partner of its obligations under this Agreement
or in connection with the transactions contemplated under this Agreement,
except such as have been obtained or as may be required under the 1933 Act,
the 1933 Act Regulations, the 1934 Act, the 1934 Act Regulations, the 1939
Act, the 1939 Act Regulations or otherwise and such consents, approvals,
authorizations, registrations or qualifications as may be required under
state securities or blue sky laws, as the case may be.
(xiv) Legal Proceedings. Other than as set forth or
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contemplated in the Registration Statement and the Prospectus, there are no
legal or governmental proceedings pending or, to the knowledge of the
Company, threatened to which the Company or any Subsidiary is a party or to
which any property of the Company or any Subsidiary is the subject that is
reasonably expected to have a material adverse effect on the Company and
Subsidiaries taken as a whole.
(xv) Licenses, Franchises, Trademarks, Easements, etc. The
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Company and each of HECO, HELCO, MECO, HEI Diversified, Inc., ASB, Hawaiian
Tug & Barge Corp., Young Brothers, Limited, Malama Pacific Corp., HEI Power
Corp. and HEI Investment Corp. (each, a "Significant Subsidiary") have all
requisite power and authority, and possess all necessary authorizations,
approvals, orders, licenses, franchises, certificates and permits of and
from, and to the extent required by law are duly registered with, all
governmental and regulatory officials, commissions, departments and bodies
in, and are in compliance with all applicable laws, rules and regulations
of or under, each jurisdiction in which any of them owns properties or
assets or conducts any business as described in the Registration Statement
and the Prospectus, where the
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failure to possess such authorization, approval, order, license, franchise,
certificate or permit, or where the failure so to register or so to comply,
would have a material adverse effect on the consolidated financial
position, stockholders' equity or results of operations of the Company and
Subsidiaries taken as a whole. Each such authorization, approval, order,
license, franchise, certificate and permit is valid and in full force and
effect, and there is no proceeding pending or, to the Company's knowledge,
threatened that may lead to the revocation, termination, suspension or non-
renewal of any such authorization, approval, order, license, franchise,
certificate or permit; the Company and Significant Subsidiaries have taken
appropriate actions to maintain in effect or renew each such authorization,
approval, order, license, franchise, certificate or permit; the Company and
Significant Subsidiaries own, or possess adequate rights to use, all
patents, trademarks, service marks and rights necessary for or material to
the conduct of their respective business as described in the Registration
Statement and the Prospectus; and the Company and Significant Subsidiaries
possess adequate easements, rights-of-way and other rights to use of land
not owned by the Company and Significant Subsidiaries, with such exceptions
and defects as are described in the Registration Statement and the
Prospectus or as do not materially interfere with the use made of such land
by the Company and Significant Subsidiaries or as do not have a material
adverse effect on the consolidated financial position, stockholders' equity
or results of operations of the Company and Subsidiaries taken as a whole.
(xvi) Public Utility Holding Company Act. The Company and HECO
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are holding companies within the meaning of the Public Utility Holding
Company Act of 1935, as amended; however, by virtue of having filed an
appropriate application under the provisions of Section 3(a) of such Act,
the Company and HECO are exempt from all of the provisions of such Act,
except Section 9(a)(2) thereof, and will remain so exempt, subject to
future timely filing of annual exemption statements and such filings as are
required by Section 33 of such Act with respect to interests of the Company
or Subsidiaries in any foreign utility company, unless and except insofar
as the Commission shall find such exception detrimental to the public
interest or interest of investors or consumers.
(xvii) 1940 Act. Neither the Company or HEI Investment Corp.
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("HEIIC") is nor, after giving effect to the offering and sale of the
Offered Securities and the application of the proceeds thereof as described
in the Prospectus, will be an "investment company" or "controlled" by an
"investment company," in each case within the meaning of the Investment
Company Act of 1940, as amended (the "1940 Act").
(b) Officers' Certificates. Any certificate signed by any officer of
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any of the Offerors or each Investment Subsidiary and delivered to any
Underwriter or to counsel for the Underwriters in connection with the offering
of the Offered Securities shall be deemed a representation and warranty by such
Offeror or such Investment Subsidiary to each Underwriter as to the matters
covered thereby on the date of such certificate.
(c) Representations and Warranties by Offerors. The Offerors, jointly
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and severally, represent and warrant to each Underwriter as of the date hereof,
and as of the Closing Time, as follows:
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(i) Good Standing of Trust. The Trust has been duly created and is
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validly existing in good standing as a business trust under the Delaware
Trust Act with the power and authority to own property and to conduct its
business as described in the Registration Statement and the Prospectus and
to enter into and perform its obligations under this Agreement, the Trust
Securities and the Trust Agreement; the Trust is duly qualified to
transact business as a foreign business trust and is in good standing in
any other jurisdiction in which such qualification is necessary, except to
the extent that the failure to so qualify or be in good standing would not
have a material adverse effect on the Trust; the Trust is not a party to or
otherwise bound by any material agreements other than those described in
the Registration Statement and the Prospectus; and the Trust is and will be
treated as a consolidated subsidiary of the Company pursuant to generally
accepted accounting principles.
(ii) Trust Agreement. The Trust Agreement has been duly
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authorized by the Company and, at the Closing Time, will have been duly
executed and delivered by the Company, as Sponsor, and, when executed and
delivered by the Property Trustee, the Delaware Trustee and the Regular
Trustees, will be a valid and binding obligation of the Company enforceable
against the Company in accordance with its terms, except as may be limited
by the Exceptions and by the effect of applicable public policy on the
enforceability of provisions relating to contribution or indemnification,
and will conform in all material respects to the statements relating
thereto in the Prospectus. The Trust Agreement has been duly qualified
under the 1939 Act.
(iii) Trust Common Securities. The Trust Common Securities have
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been duly authorized by the Trust Agreement and, when issued and delivered
by the Trust to the Company against payment therefor as described in the
Registration Statement and Prospectus, will be validly issued undivided
beneficial interests in the assets of the Trust and will conform in all
material respects to the statements relating thereto contained in the
Prospectus; the issuance of the Trust Common Securities is not subject to
preemptive or other similar rights; and at the Closing Time; all of the
issued and outstanding Trust Common Securities will be directly owned by
the Company free and clear of any security interest, mortgage, pledge,
lien, encumbrance, claim or equity.
(iv) Trust Preferred Securities. The Trust Preferred Securities
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have been duly authorized by the Trust Agreement and, when issued and
delivered against payment of the consideration set forth in this Agreement,
will be validly issued and (subject to the terms of the Trust Agreement)
fully paid and nonassessable undivided beneficial interests in the Trust,
will be entitled to the benefits of the Trust Agreement and will conform in
all material respects to the statements relating thereto contained in the
Prospectus; the issuance of the Trust Preferred Securities is not subject
to preemptive or other similar rights; and (subject to the terms of the
Trust Agreement) holders of Trust Preferred Securities will be entitled to
the same limitation of personal liability under Delaware law as extended to
stockholders of private corporations for profit.
(v) Regular Trustees. Each of the Regular Trustees of the Trust
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is an officer of the Company; at the Closing Time, the Trust Agreement will
have been duly executed and delivered by the Regular Trustees and, when
executed and delivered by the
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Company, the Property Trustee and the Delaware Trustee, will be a valid and
binding obligation of each Regular Trustee enforceable against such Regular
Trustee in accordance with its terms, except as may be limited by the
Exceptions.
(vi) Good Standing of Partnership. The Partnership has been duly
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formed and is validly existing in good standing as a limited partnership
under the Delaware Partnership Act with the power and authority to own
property and to conduct its business as described in the Registration
Statement and the Prospectus and to enter into and perform its obligations
under this Agreement, the Partnership Preferred Securities and the
Agreement of Limited Partnership; the Partnership is duly qualified to
transact business as a foreign limited partnership and is in good standing
in any other jurisdiction in which such qualification is necessary, except
to the extent that the failure to so qualify or be in good standing would
not have a material adverse effect on the Partnership; the Partnership is
not a party to or otherwise bound by any material agreements other than
those described in the Registration Statement and the Prospectus; and the
Partnership is and will be treated as a consolidated subsidiary of the
Company pursuant to generally accepted accounting principles.
(vii) Agreement of Limited Partnership. The Agreement of
--------------------------------
Limited Partnership has been duly authorized by the General Partner and, on
the Closing Time, will have been duly executed and delivered by the General
Partner and will be a valid and legally binding obligation of the General
Partner enforceable against the General Partner in accordance with its
terms, except as may be limited by the Exceptions and by the effect of
applicable public policy on the enforceability of provisions relating to
contribution or indemnification, and will conform in all material respects
to the statements relating thereto in the Prospectus.
(viii) Partnership Preferred Securities. The Partnership
--------------------------------
Preferred Securities have been duly authorized by the Agreement of Limited
Partnership and, when issued and delivered pursuant to the Agreement of
Limited Partnership against payment of the consideration set forth therein,
will be duly issued and fully paid and not subject to assessment for
additional capital contributions, will be entitled to the benefits of the
Agreement of Limited Partnership and will conform in all material respects
to the statements relating thereto in the Prospectus; the issuance of the
Partnership Preferred Securities is not subject to preemptive or other
similar rights; assuming that the holders of Partnership Preferred
Securities in their capacities as such do not participate in the control of
the business of the Company, the holders of the Partnership Preferred
Securities, in their capacities as such, will have no liability in excess
of their obligations to make payments provided for in the Agreement of
Limited Partnership (subject to the obligation of a holder of Partnership
Preferred Securities to repay any funds distributed to it).
(ix) 1940 Act. Neither the Trust or the Partnership is nor,
--------
after giving effect to the offering and sale of the Offered Securities and
the application of the proceeds thereof as described in the Prospectus,
will be an "investment company" or "controlled" by an "investment company,"
in each case within the meaning of the 1940 Act.
-11-
(x) Absence of Conflicts. The Trust is not in violation of the Trust
--------------------
Agreement or its certificate of trust filed with the State of Delaware,
dated as of December 19, 1996 (the "Certificate of Trust"); the Partnership
is not in violation of the Agreement of Limited Partnership or its amended
and restated certificate of limited partnership, dated as of January 23,
1997 (the "Certificate of Limited Partnership"); and the execution,
delivery and performance of this Agreement, the Trust Securities and the
Partnership Preferred Securities by the Partnership and the Trust and the
consummation of the transactions contemplated herein and therein and
compliance by the Partnership and the Trust with their respective
obligations hereunder and thereunder have been duly authorized by all
necessary action on the part of the Partnership and the Trust and do not
and will not result in any violation of the Trust Agreement or Certificate
of Trust or the Agreement of Limited Partnership or the Certificate of
Limited Partnership and do not and will not conflict with, or result in a
breach of any of the terms or provisions of, or constitute a default under,
or result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Trust or the Partnership under any
existing applicable law, rule, regulation, judgment, order or decree of any
government, governmental instrumentality or court, domestic or foreign, or
any regulatory body or administrative agency or other governmental body
having jurisdiction over the Trust or the Partnership of their respective
properties.
(xi) Absence of Further Requirements. No authorization,
-------------------------------
approval, consent or order of any court or governmental authority or agency
is necessary in connection with the issuance, offer and sale of the Trust
Securities and the Partnership Preferred Securities, the consummation of
the transactions contemplated by this Agreement by the Partnership or the
Trust, or the execution, delivery and performance by the Partnership or the
Trust of this Agreement, the Trust Securities and the Partnership Preferred
Securities, except such as may be required under the 1933 Act or the 1933
Act Regulations, the 1934 Act or the 1934 Act Regulations or state
securities laws and the qualification of the Trust Agreement, the
Guarantees and each Investment Guarantee under the 1939 Act and the 1939
Act Regulations.
(xii) Absence of Proceedings. Except as disclosed in the
----------------------
Registration Statement and the Prospectus, there is no action, suit or
proceeding before or by any government, governmental instrumentality or
court, domestic or foreign, now pending or, to the knowledge of the Trust
or the Partnership, threatened against or affecting the Trust or the
Partnership that is required to be disclosed in the Registration Statement
and the Prospectus or that would result in any material adverse change in
the condition (financial or otherwise), earnings or business affairs of the
Trust, the Partnership or the Company and Subsidiaries taken as a whole, or
that would materially and adversely affect the properties or assets of the
Trust or the Partnership, or that could adversely affect the consummation
of the transactions contemplated in this Agreement.
(xiii) Agreement. This Agreement has been duly authorized,
---------
executed and delivered by each of the Offerors.
-12-
SECTION 2. Sale and Delivery to Underwriters; Closing.
------------------------------------------
(a) Securities. On the basis of the representations and warranties
----------
herein contained and subject to the terms and conditions herein set forth, the
Trust agrees to sell to each Underwriter named in Schedule A hereto, severally
and not jointly, and each Underwriter agrees, severally and not jointly, to
purchase from the Trust, at the initial public offering price set forth in
Schedule B hereto, the number of Trust Preferred Securities set forth in
Schedule A hereto opposite the name of such Underwriter, plus any additional
number of Trust Preferred Securities that such Underwriter may become obligated
to purchase pursuant to the provisions of Section 10 hereof.
(b) Payment. Payment of the purchase price for, and delivery of the
-------
Trust Preferred Securities shall be made through the facilities of The
Depository Trust Company ("DTC"), pursuant to such arrangements and instructions
as shall be agreed upon by the Underwriters and the Company, at 10:00 A.M.
(Eastern time) on the fourth business day after the date hereof (unless
postponed in accordance with the provisions of Section 10 hereof), or such other
time not later than ten business days after such date as shall be agreed upon by
the Underwriters and the Company (such time and date of payment and delivery
being herein called the "Closing Time"). For purposes of this Agreement,
"business day" means any day on which the New York Stock Exchange, Inc. (the
"NYSE") is open for bidding.
Payment shall be made by or on behalf of the Underwriters to the Trust
by wire transfer of immediately available funds to a bank account maintained by
the Property Trustee for that purpose, against delivery to such persons
designated by the Underwriters for the respective accounts of the Underwriters
of a certificate in global form for the Trust Preferred Securities to be
purchased by them. It is understood that each Underwriter has authorized
Xxxxxxx Xxxxx, for its account, to accept delivery of and receipt for, and make
payment of the purchase price for, the Trust Preferred Securities that such
Underwriter has agreed to purchase. Xxxxxxx Xxxxx, individually and not as a
representative of the Underwriters, may (but shall not be obligated to) make
payment of the purchase price for the Trust Preferred Securities to be purchased
by any Underwriter whose funds have not been received by the Closing Time, but
such payment shall not relieve such Underwriter from its obligations hereunder.
The purchase price per Trust Preferred Security to be paid by the
several Underwriters for the Trust Preferred Securities shall be an amount equal
to the initial public offering price as set forth in Schedule B hereto. The
initial public offering price per Trust Preferred Security shall be a fixed
price to be determined by agreement between the Underwriters and the Offerors.
The initial public offering price and the purchase price per Trust Preferred
Security, when so determined, shall be set forth in Schedule B hereto.
As compensation to the Underwriters for their commitments hereunder
and in view of the fact that the proceeds of the sale of the Trust Preferred
Securities will ultimately be used to purchase the Affiliate Debentures, the
Company hereby agrees to pay, or cause to be paid, at the Closing Time to
Xxxxxxx Xxxxx, for the accounts of the several Underwriters, a commission per
Trust Preferred Security set forth on Schedule B hereto by wire transfer of
immediately available funds to a bank account designated by Xxxxxxx Xxxxx.
-13-
(c) Registration. The global certificate for the Trust Preferred
------------
Securities shall be registered in the name of "Cede & Co.," as nominee of DTC,
and delivered to DTC, or its custodian, at least one full business day prior to
the Closing Time. For the purpose of expediting the checking of the global
certificate for the Trust Preferred Securities by the Underwriters, the Trust
agrees to make such global certificate available to the Underwriters for such
purpose at the offices of DTC in New York, New York, not later than 2:00 P.M.,
New York City time, on the business day prior to the Closing Time or at such
other time and place as may be agreed upon by the Trust and the Underwriters.
SECTION 3. Covenants of Offerors. The Offerors covenant with each
---------------------
Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests.
--------------------------------------------------------------
The Offerors, subject to Section 3(b) hereof, will cause the Prospectus to be
filed with, or transmitted for filing to, the Commission pursuant to and in
compliance with Rule 424(b) of the 1933 Act Regulations, and will notify the
Underwriters immediately, and confirm the notice in writing, (i) when any post-
effective amendment to the Registration Statement shall become effective, or any
supplement to the Prospectus or any amended Prospectus shall have been filed,
under the 1933 Act, (ii) of the receipt of any comments from the Commission,
(iii) of any request by the Commission for any amendment to the Registration
Statement or any amendment or supplement to the Prospectus or for additional
information and (iv) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement under the 1933 Act or
of any order preventing or suspending the use of any preliminary prospectus
supplement, or of the suspension of the qualification of the Offered Securities
for offering or sale in any jurisdiction, or of the initiation or threatening of
any proceedings for any of such purposes. The Company will make every
reasonable effort to prevent the issuance of any stop order and, if any stop
order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) Filing of Amendments. During any period when a prospectus is
--------------------
required to be delivered under the 1933 Act or the 1934 Act in connection with
sales of any of the Offered Securities, the Offerors will give the Underwriters
notice of their intention to file or prepare any amendment to the Registration
Statement or any amendment, supplement or revision to either the prospectus
included in the Registration Statement at the time it became effective under the
1933 Act or to the Prospectus, whether pursuant to the 1933 Act, the 1934 Act or
otherwise, will furnish the Underwriters with copies of any such documents a
reasonable amount of time prior to such proposed filing or use, as the case may
be, and will not file or use any such document to which the Underwriters or
counsel for the Underwriters shall reasonably object.
(c) Delivery of Registration Statements. The Offerors have furnished
-----------------------------------
or will deliver to the Underwriters and counsel for the Underwriters, without
charge, conformed copies of the Registration Statement as originally filed and
of each amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be incorporated by
reference therein) and conformed copies of all consents and certificates of
experts, and will also deliver to the Underwriters, without charge, a conformed
-14-
copy of the Registration Statement as originally filed and of each amendment
thereto (without exhibits) for each of the Underwriters. The copies of the
Registration Statement and each amendment thereto furnished to the Underwriters
will be identical to the electronically transmitted copies thereof filed with
the Commission pursuant to XXXXX, except to the extent permitted by Regulation
S-T.
(d) Delivery of Prospectuses. The Offerors have delivered to each
------------------------
Underwriter, without charge, as many copies of each preliminary prospectus
supplement as such Underwriter reasonably requested, and the Offerors hereby
consent to the use of such copies for purposes permitted by the 1933 Act. The
Offerors will furnish to each Underwriter, without charge, during any period
when a prospectus is required to be delivered under the 1933 Act or the 1934 Act
in connection with sales of any of the Offered Securities, such number of copies
of the Prospectus (as amended or supplemented) as such Underwriter may
reasonably request. The Prospectus and any amendments or supplements thereto
furnished to the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to XXXXX, except
to the extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Offerors will
-----------------------------------------
comply with the 1933 Act and the 1933 Act Regulations, the 1934 Act and the 1934
Act Regulations and the 1939 Act and the 1939 Act Regulations with respect to
the offer of the Offered Securities so as to permit the completion of the
distribution of the Trust Preferred Securities as contemplated in this Agreement
and in the Prospectus. If at any time when a prospectus is required to be
delivered under the 1933 Act or the 1934 Act in connection with sales of any of
the Offered Securities, any event shall occur or condition shall exist as a
result of which it is necessary, in the opinion of counsel for the Underwriters
and for the Company, to amend the Registration Statement or amend or supplement
the Prospectus in order that the Prospectus will not contain any untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances existing at
the time it is delivered to a purchaser, not misleading or if it shall be
necessary, in the opinion of such counsel, at any such time to amend the
Registration Statement or amend or supplement the Prospectus in order to comply
with the requirements of the 1933 Act or the 1933 Act Regulations, the Company
will promptly prepare and file with the Commission, subject to Section 3(b)
hereof, such amendment or supplement as may be necessary to correct such
statement or omission or to make the Registration Statement or the Prospectus
comply with such requirements, and the Company will furnish to the Underwriters
such number of copies of such amendment or supplement as the Underwriters may
reasonably request.
(f) Blue Sky Qualifications. The Company will take such action as the
-----------------------
Underwriters may reasonably request to cooperate with the Underwriters to
qualify the Offered Securities for offering and sale under the applicable
securities laws of such states and other jurisdictions as the Underwriters may
designate so that such qualifications are in effect for a period of not less
than one year from the effective date of the Registration Statement under the
1933 Act and during any period when a prospectus is required to be delivered
under the 1933 Act or the 1934 Act in connection with sales of any of the
Offered Securities; provided, however, that the Company shall not be obligated
to file any general consent to service of process or to qualify as a foreign
corporation or as a dealer in securities in any jurisdiction in which it is not
so qualified. In each jurisdiction in which the Offered Securities have been so
-15-
qualified, the Company will file such statements and reports as may be required
by the laws of such jurisdiction so that such qualification is in effect for a
period of not less than one year from the effective date of the Registration
Statement under the 1933 Act and during any period when a prospectus is required
to be delivered under the 1933 Act or the 1934 Act in connection with sales of
any of the Offered Securities.
(g) Rule 158. The Company will, on behalf of the Trust, timely file
--------
such reports pursuant to the 1934 Act as are necessary in order to make
generally available to the Trust's securityholders as soon as practicable an
earning statement for the purposes of, and to provide the benefits contemplated
by, the last paragraph of Section 11(a) of the 1933 Act and Rule 158 under the
1933 Act Regulations.
(h) Use of Proceeds. The Company will use or cause to be used the net
---------------
proceeds received by and from the sale of the Offered Securities in the manner
specified in the Prospectus under "Use of Proceeds."
(i) Listing. The Offerors will use their best efforts to cause the
-------
Trust Preferred Securities to be duly authorized for listing on the NYSE,
subject to notice of issuance, and to be registered under the 1934 Act; if the
Trust Preferred Securities are exchanged for Partnership Preferred Securities,
the Company will use its best efforts to have the Partnership Preferred
Securities listed on the exchange or other organization on which the Trust
Preferred Securities are then listed, and to have the Partnership Preferred
Securities registered under the 1934 Act.
(j) Prohibition on Sales. During a period of 30 days from the date of
--------------------
the Prospectus, none of the Offerors will, without the prior written consent of
the Underwriters, (i) directly or indirectly, sell, offer to sell, grant any
option for sale of, or otherwise dispose of, any Trust Preferred Securities,
Partnership Preferred Securities, any preferred stock of the Company or any
security convertible into or exchangeable into or exercisable for Trust
Preferred Securities or Partnership Preferred Securities or any preferred stock
of the Company or (ii) enter into any swap or any other agreement or any
transaction that transfers, in whole or in part, directly or indirectly, the
economic consequence of ownership of any Trust Preferred Securities, Partnership
Preferred Securities, any preferred stock of the Company or any security
convertible into or exchangeable into or exercisable for Trust Preferred
Securities or Partnership Preferred Securities or any preferred stock of the
Company, whether any such swap or transaction described in clause (i) or (ii)
above is to be settled by delivery of Trust Preferred Securities, Partnership
Preferred Securities, any preferred stock of the Company or such other
securities, in cash or otherwise.
(k) Reporting Requirements. The Company, during any period when a
----------------------
prospectus is required to be delivered under the 1933 Act or the 1934 Act in
connection with sales of any of the Offered Securities, will file all documents
required to be filed with the Commission pursuant to the 1934 Act within the
time periods required by the 1934 Act and the 1934 Act Regulations.
-16-
SECTION 4. Payment of Expenses.
-------------------
(a) Expenses. The Company will pay, or cause to be paid, all expenses
--------
incident to the performance of its obligations under this Agreement, including
(i) the preparation, printing and filing of the Registration Statement
(including financial statements and exhibits) as originally filed and of each
amendment thereto, (ii) the preparation, printing and delivery to the
Underwriters of this Agreement, the Trust Agreement, the Agreement of Limited
Partnership, and the Indentures and such other documents as may be required in
connection with the offering, purchase, sale, issuance or delivery of the
Offered Securities, (iii) the preparation, issuance and delivery of the
certificates for the Trust Preferred Securities to the Underwriters, (iv) the
fees and disbursements of the Company's counsel, accountants and other advisors,
(v) the qualification of the Offered Securities under securities laws in
accordance with the provisions of Section 3(f) hereof (including filing fees and
the reasonable fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with the preparation of the blue sky
survey and any supplement thereto) up to a maximum of $15,000, (vi) the printing
and delivery to the Underwriters of copies of each preliminary prospectus
supplement, and of the Prospectus and any amendments or supplements thereto,
(vii) the preparation, printing and delivery to the Underwriters of copies of
the blue sky survey and any supplement thereto, (viii) the fees and expenses of
the Issuer Trustees, the Debt Trustee, the Partnership Guarantee Trustee, the
Trust Guarantee Trustee and the Investment Guarantee Trustee, including the fees
and disbursements of counsel for the Issuer Trustees, the Debt Trustee, the
Partnership Guarantee Trustee, the Trust Guarantee Trustee and the Investment
Guarantee Trustee in connection with the Indentures and the Affiliate
Debentures, the Guarantees and each Investment Guarantee, (ix) any fees payable
in connection with the rating of the Trust Preferred Securities and (x) the fees
and expenses incurred in connection with the listing of the Offered Securities
on the NYSE and the registration thereof under the 1934 Act in accordance with
Section 3(i) hereof; provided, however, that the Underwriters shall reimburse
the Company for certain expenses incurred in connection with the transactions
contemplated by this Agreement as may be agreed upon in writing.
(b) Termination of Agreement. If this Agreement is terminated by the
------------------------
Underwriters in accordance with the provisions of Section 5 or 9(a)(i) hereof,
the Company shall reimburse the Underwriters for all of their out-of-pocket
expenses, including the reasonable fees and disbursements of counsel for the
Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The obligations
---------------------------------------
of the several Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Offerors contained in Section 1 hereof or
in certificates of any officer or officers of the Offerors or each Investment
Subsidiary delivered pursuant to the provisions hereof, to the performance by
the Offerors of their covenants and other obligations hereunder, and to the
following further conditions:
(a) Effectiveness of Registration Statement. The Registration
---------------------------------------
Statement has become effective and at the Closing Time no stop order suspending
the effectiveness of the Registration Statement shall have been issued under the
1933 Act or proceedings therefor initiated or threatened by the Commission, and
any request on the part of the Commission for
-17-
additional information shall have been complied with to the reasonable
satisfaction of counsel to the Underwriters. The Prospectus shall have been
filed with, or transmitted for filing to, the Commission in accordance with Rule
424(b).
(b) Opinion of Counsel for Offerors. At the Closing Time, the
-------------------------------
Underwriters shall have received an opinion of Xxxxxxxx Xxxxxxxx Xxxxx & Xxxxxx,
counsel for the Offerors, dated the Closing Time, to the effect that:
(i) the Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Hawaii,
with corporate power and authority to own its properties and conduct its
business as described in the Prospectus;
(ii) the Company has an authorized equity capitalization as set
forth in the Prospectus and all of the issued and outstanding shares of
capital stock of the Company have been duly and validly authorized and
issued and are fully paid and nonassessable;
(iii) to such counsel's knowledge, the Company does not itself
conduct any business or own or lease any property in any jurisdiction
outside the State of Hawaii that would require it to qualify to do business
as a foreign corporation and where the failure to be so qualified would
subject the Company to any material liability or disability;
(iv) each Significant Subsidiary, other than ASB, has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation; ASB has been duly
formed and is duly chartered as a federal savings bank under the laws of
the United States; all of the issued and outstanding shares of capital
stock of each Significant Subsidiary has been duly and validly authorized
and issued and is fully paid and nonassessable; and, to such counsel's
knowledge, all of such shares, other than shares of preferred stock of HECO
and its subsidiaries, is owned directly or indirectly by the Company, free
and clear of any perfected encumbrance or security interest or any other
encumbrance, claim or equity, other than the pledge by HECO of the shares
of common stock of HELCO and MECO under the indenture securing HECO's first
mortgage bonds, and with such exceptions as are described in the Prospectus
or as are otherwise disclosed to the Underwriters;
(v) the Company and HECO are holding companies within the meaning of
the Public Utility Holding Company Act of 1935, as amended; however, by
virtue of having filed an appropriate application under the provisions of
Section 3(a) of such Act, the Company and HECO are exempt from all of the
provisions of such Act except Section 9(a)(2) thereof, and will remain so
exempt, subject to the future timely filings of annual exemption statements
and such filings as are required by Section 33 of such Act with respect to
interests of the Company or Subsidiaries in any foreign utility company,
unless and except insofar as the Commission shall find such exemption
detrimental to the public interest or the interest of investors or
consumers;
(vi) except as indicated in the Prospectus, to the best of such
counsel's knowledge, (A) neither the Company nor any Significant Subsidiary
is engaged in, or
-18-
threatened with, any litigation and (B) there are no proceedings, or any
proceedings threatened, with respect to the Company or any Significant
Subsidiary or their property that, in the case of either clause (A) or (B)
above, such counsel (or other counsel as to litigation or proceedings that
are not principally handled by their firm) has concluded is reasonably
expected to have a material adverse effect on the Company and Subsidiaries
taken as a whole;
(vii) neither any of the Offerors, the General Partner or HEIIC is
nor, after giving effect to the offering and sale of the Offered Securities
and the application of the proceeds thereof as described in the Prospectus,
will be an "investment company" or "controlled" by an "investment company,"
in each case within the meaning of the 1940 Act;
(viii) the Registration Statement, at the Effective Date, and the
Prospectus, at the time it was filed with, or transmitted for filing to,
the Commission pursuant to Rule 424(b) of the 1933 Act Regulations,
complied as to form in all material respects with the 1933 Act, the 1933
Act Regulations, the 1939 Act and the 1939 Act Regulations; each document
incorporated by reference in the Prospectus as originally filed pursuant to
the 1934 Act complied as to form when so filed in all material respects
with the 1934 Act and the 1934 Act Regulations; and, to the best of such
counsel's knowledge, the Registration Statement has been declared, and on
the Closing Time is, effective under the 1933 Act and no proceedings for a
stop order with respect thereto are threatened or pending under Section 8
of the 1933 Act;
(ix) nothing has come to the attention of such counsel to cause them
to believe that the Registration Statement, at the Effective Date,
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus, at the time it
was filed with, or transmitted for filing to, the Commission pursuant to
Rule 424(b) of the 1933 Act Regulations or at the Closing Time, included or
includes any untrue statement of a material fact or omitted or omits to
state a material fact necessary in order to make the statements made
therein, in the light of the circumstances under which they were made, not
misleading;
(x) the statements summarizing certain provisions of the Offered
Securities and the Affiliate Debentures (other than any such statements
describing DTC's book-entry system), the Indentures, the Trust Agreement,
the Agreement of Limited Partnership, and each Investment Guarantee, and
the statements under "Description of Hawaiian Electric Industries, Inc.--
General" relating to the Company and involving matters of law or legal
conclusions, contained in the Prospectus are accurate summaries of such
documents and matters in all material respects;
(xi) this Agreement has been duly authorized by all necessary
corporate action of and duly executed and delivered by the Company; this
Agreement has been duly executed and delivered, on behalf of the Trust, by
the Regular Trustees and, on behalf of the Partnership, by the General
Partner; and the Trust Preferred Securities have been duly executed and
delivered by the Regular Trustees;
-19-
(xii) the Trust Agreement has been duly qualified under the 1939 Act
and has been duly authorized by all necessary corporate action of the
Company and duly executed and delivered by the Company and the Regular
Trustees;
(xiii) the Trust Guarantee has been duly qualified under the 1939
Act, has been duly authorized by all necessary corporate action of and duly
executed and delivered by the Company and constitutes a valid and binding
instrument of the Company enforceable against the Company in accordance
with its terms;
(xiv) the Partnership Guarantee has been duly qualified under the
1939 Act, has been duly authorized by all necessary corporate action of and
duly executed and delivered by the Company and constitutes a valid and
binding instrument of the Company enforceable against the Company in
accordance with its terms;
(xv) each Investment Guarantee has been duly qualified under the
1939 Act, has been duly authorized by all necessary corporate action of and
duly executed and delivered by the Company and constitutes a valid and
binding instrument of the Company enforceable against the Company in
accordance with its terms;
(xvi) each Indenture has been duly authorized by all necessary
corporate action of and duly executed and delivered by the applicable
Investment Affiliate and constitutes a valid and binding agreement of such
Investment Affiliate enforceable against such Investment Affiliate in
accordance with its terms; the Indenture relating to the Company Debentures
has been duly qualified under the 1939 Act; the Affiliate Debentures have
been duly authorized by all necessary corporate action of and duly executed
and delivered by the applicable Investment Affiliate and constitute valid
and binding obligations of such Investment Affiliate enforceable against
such Investment Affiliate in accordance with their terms, and the Affiliate
Debentures will be entitled to the benefits of the applicable Indenture;
(xvii) the execution, delivery and performance of the Trust
Agreement, the Agreement of Limited Partnership, the Guarantees and each
Investment Guarantee by the Company, the Affiliate Debentures and the
Indentures by the applicable Investment Affiliate and any other agreement
or instrument entered into or issued by the Company in connection with the
transactions contemplated hereby or thereby or in the Registration
Statement and the Prospectus (including the issuance and sale of the
Offered Securities and the use of proceeds from the sale of the Offered
Securities as described in the Prospectus under the caption "Use of
Proceeds") and the consummation of the transactions contemplated herein and
in the Registration Statement and the Prospectus and compliance by the
Company with its obligations hereunder and thereunder do not and will not
conflict with or result in a breach of any of the terms or provisions of,
or constitute a default under, any material indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument known to such
counsel to which the Company or any Significant Subsidiary is a party or by
which the Company or any Significant Subsidiary is bound or to which any of
the material property or assets of the Company or any Significant
Subsidiary is subject, nor will such action result in any violation of the
provisions of the Restated Articles of Incorporation of the Company or
-20-
the By-Laws of the Company or any statute or any order, rule or regulation
known to such counsel of any court or governmental agency or body having
jurisdiction over the Company or any of its properties, except that such
counsel need not express an opinion with respect to compliance with state
securities or blue sky law;
(xviii) no consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body is
required for the performance by the Company of its obligation under this
Agreement or in connection with the transactions contemplated by this
Agreement, except such as have been obtained or made under the 1933 Act,
the 1933 Act Regulations, the 1934 Act, the 1934 Act Regulations, the 1939
Act, the 1939 Act Regulations or otherwise and such consents, approvals,
authorizations, registrations, or qualifications as may be required under
state securities or blue sky laws;
(xix) such counsel shall confirm (A) its opinion set forth under
"Certain Federal Income Tax Considerations" in the Prospectus and (B) that,
subject to the qualifications set forth therein, the description of such
opinion therein is an accurate summary of the United States federal income
tax matters described therein; and
(xx) to such counsel's knowledge, all of the issued and outstanding
Trust Common Securities are directly owned by the Company free and clear of
any security interest, mortgage, pledge, lien or encumbrance; and the
General Partner is the sole owner of general partner interests of the
Partnership.
In rendering such opinion, (A) such counsel may state that it is expressing an
opinion only as to the federal laws of the United States and the laws of the
State of Hawaii, (B) such counsel may rely, as to matters involving the
application of laws of the State of Delaware, upon the opinion of special
Delaware counsel for the Offerors rendered pursuant to Section 5(c) hereof and,
as to matters involving the application of laws of the State of New York, upon
the opinion of counsel for the Underwriters rendered pursuant to Section 5(d)
hereof, (C) such counsel may rely, as to matters of good standing and valid
existence and as to matters of fact, upon certificates of government officials
(provided that copies of such certificates will be furnished to counsel for the
Underwriters), (D) such counsel may rely, as to matters of fact, upon
certificates and representations of officers and employees of the Offerors
(provided that copies of such certificates will be furnished to counsel for the
Underwriters upon its reasonable request), (E) such counsel may rely, with
respect to matters involving litigation or proceedings not principally handled
by such counsel's firm, upon opinions and information upon which such counsel
has been permitted to rely by other counsel representing the Offerors in such
litigation or proceedings (provided that copies of such opinions are furnished
to counsel for the Underwriters), (F) for purposes of the opinion expressed in
paragraph (vii) above, "material" shall mean $15,000,000, (G) such counsel may
state that it has not been requested to, and does not, express any opinion with
respect to the financial statements and notes thereto and the schedules and
other financial and statistical data and information included or incorporated by
reference in the Registration Statement and the Prospectus, (H) such counsel may
state, with respect to the matters set forth in paragraph (ix) above, that they
have not independently verified and assume no responsibility for the accuracy,
completeness or fairness of the statements in the Prospectus or in any document
incorporated by reference therein, except insofar as such statements relate to
such counsel or as set forth in paragraphs (x) and (xix) above), (I) such
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counsel may limit the matters set forth in paragraphs (xiii) through (xvi) above
by the effect of the Exceptions and, if applicable, by the effect of applicable
public policy on the enforceability of provisions relating to contribution or
indemnification, (J) such counsel may state that, whenever such opinion is
qualified by the phrases "known to such counsel," "to the best of our
knowledge," "to our knowledge" or "nothing has come to our attention," or other
phrases of similar import, such phrases are intended to mean the actual
knowledge of information by the lawyers in such counsel's firm who have been
principally involved in drafting the Prospectus and supervising the issuance,
sale and delivery of the Trust Preferred Securities and preparing the pertinent
documents and the lawyers having supervisory responsibility for the client
relationship with the Offerors and general transaction representation, but does
not include other information that might be revealed if there were to be
undertaken a canvass of all lawyers in such counsel's firm, a general search of
all files or any other type of independent investigation (other than, with
respect to the matters set forth in paragraph (vi) above, such review of
internal litigation files or inquiries of other counsel as such counsel deems
necessary), and (K) such counsel may include therein such other customary
qualifications reasonably acceptable to the Underwriters and counsel for the
Underwriters. References to the Registration Statement and the Prospectus in
this Section 5(b) shall include any amendments or supplements thereto at the
Closing Time.
(c) Opinion of Special Counsel for the Offerors. At the Closing Time,
-------------------------------------------
the Underwriters shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger,
P.A., special Delaware counsel for the Offerors and the General Partner, dated
the Closing Time, to the effect that:
(i) the Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Trust Act; and all filings
required under the laws of the State of Delaware with respect to the
creation and valid existence of the Trust as a business trust have been
made;
(ii) under the Trust Agreement and the Delaware Trust Act, the Trust
has the trust power and authority (A) to own property and to conduct its
business, all as described in the Prospectus, (B) to issue and sell the
Trust Securities in accordance with the Trust Agreement, and as described
in the Prospectus, and to perform its other obligations under the Trust
Agreement, this Agreement and the Trust Securities, (C) to execute and
deliver this Agreement and (D) to consummate the transactions contemplated
by this Agreement;
(iii) assuming that the Trust Agreement has been duly authorized,
executed and delivered by the parties thereto, the Trust Agreement
constitutes a valid and binding obligation of each of the Company and the
Regular Trustees, and is enforceable against the Company and the Regular
Trustees, in accordance with its terms;
(iv) the Trust Common Securities have been duly authorized by the
Trust Agreement and are validly issued undivided beneficial interests in
the assets of the Trust;
(v) the Trust Preferred Securities have been duly authorized by the
Trust Agreement and are duly and validly issued and, subject to the
qualifications set forth in
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paragraph (vi) below, fully paid and nonassessable undivided beneficial
interests in the assets of the Trust;
(vi) the holders of the Trust Preferred Securities, as beneficial
owners of the Trust, will be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of Delaware (in
this regard, such counsel may note that the holders of the Trust Preferred
Securities may be obligated, pursuant to the Trust Agreement, to provide
(A) indemnity or security in connection with and pay taxes or governmental
charges arising from transfers or exchanges of certificates for Trust
Preferred Securities and the issuance of replacement certificates for Trust
Preferred Securities and (B) security or indemnity in connection with
requests of or directions to the Trust Property Trustee to exercise its
rights and powers under the Trust Agreement);
(vii) under the Trust Agreement and the Delaware Trust Act, the
issuance of the Trust Securities is not subject to preemptive rights;
(viii) the General Partner has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the
State of Delaware, with corporate power and authority to own its properties
and conduct its business as described in the Prospectus;
(ix) the Partnership has been duly formed and is validly existing in
good standing as a limited partnership under the Delaware Partnership Act;
and all filings required under the laws of the State of Delaware with
respect to the formation and valid existence of the Partnership as a
limited partnership have been made;
(x) under the Agreement of Limited Partnership and the Delaware
Partnership Act, the Partnership has the partnership power and authority
(A) to own property and to conduct its business, all as described in the
Prospectus, (B) to issue and sell the Partnership Preferred Securities in
accordance with the Agreement of Limited Partnership, and as described in
the Prospectus, and to perform its other obligations under the Agreement of
Limited Partnership, this Agreement and the Partnership Preferred
Securities, (C) to execute and deliver this Agreement and (D) to consummate
the transactions contemplated by this Agreement;
(xi) the Agreement of Limited Partnership has been duly authorized
by all necessary corporate action of, and xxxx executed and delivered by,
the General Partner and constitutes a valid and binding obligation of the
General Partner, and is enforceable against the General Partner, in
accordance with its terms;
(xii) the Partnership Preferred Securities have been duly
authorized by the Agreement of Limited Partnership and represent valid and,
subject to the qualifications set forth in paragraph (xiii) below, fully
paid and nonassessable limited partner interests in the Partnership;
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(xiii) assuming that the holders of Partnership Preferred
Securities, in their capacities as such, do not participate in the control
of the business of the Company, the holders of the Partnership Preferred
Securities, in their capacities as such, will have no liability in excess
of their obligations to make payments provided for in the Agreement of
Limited Partnership and their share of the Partnership's assets and
undistributed profits (subject to the obligation of a holder of Partnership
Preferred Securities to repay any funds wrongfully distributed to it);
(xiv) under the Agreement of Limited Partnership and the Delaware
Partnership Act, the issuance of the Partnership Preferred Securities is
not subject to preemptive rights;
(xv) the issuance and sale by the Trust of the Trust Securities, the
execution, delivery and performance by the Trust of this Agreement, and the
consummation of the transactions contemplated by this Agreement, do not
violate (A) the Certificate of Trust or the Trust Agreement or (B) any
applicable Delaware law, rule or regulation;
(xvi) under the Trust Agreement and the Delaware Trust Act, the
issuance and sale by the Trust of the Trust Securities and the execution
and delivery by the Trust of this Agreement, and the performance by the
Trust of its obligations hereunder, have been duly authorized by all
necessary trust action on the part of the Trust, and, upon the due
execution and delivery of this Agreement by the Company as Sponsor under
the Trust Agreement and the certificates for the Trust Preferred Securities
by the Regular Trustees on behalf of the Trust, and, if executed by the
facsimile signatures of the Regular Trustees, the due authentication of the
Trust Preferred Securities by an authorized officer of the Property Trustee
in accordance with the Trust Agreement, this Agreement and the Trust
Preferred Securities will have been duly executed and delivered by the
Trust;
(xvii) the issuance and sale by the Partnership of the Partnership
Preferred Securities, the execution, delivery and performance by the
Partnership of this Agreement, and the consummation of the transactions
contemplated by this Agreement, do not violate (A) the Certificate of
Limited Partnership or the Agreement of Limited Partnership or (B) any
applicable Delaware law, rule or regulation; and
(xviii) under the Agreement of Limited Partnership and the Delaware
Partnership Act, the issuance and sale by the Partnership of the
Partnership Preferred Securities and the execution and delivery by the
Partnership of this Agreement, and the performance by the Partnership of
its obligations hereunder, have been duly authorized by all necessary
partnership action on the part of the Partnership, and, upon the due
execution and delivery of this Agreement by the General Partner under the
Agreement of Limited Partnership and the certificates for the Partnership
Preferred Securities by the General Partner, this Agreement and the
Partnership Preferred Securities will have been duly executed and delivered
by the Partnership.
In rendering such opinion, (A) such counsel may rely, as to matters of good
standing and valid existence and as to matters of fact (to the extent deemed
proper), upon certificates of government officials (provided that copies of such
certificates will be furnished to counsel for the
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Underwriters), (B) such counsel may rely, as to matters of fact, upon
certificates and representations of the Trust and the Partnership (provided that
copies of such certificates will be furnished to counsel for the Underwriters
upon its reasonable request), (C) such counsel may state that it is expressing
an opinion only as to the laws of the State of Delaware, (D) such counsel may
limit the matters set forth in paragraphs (iii) and (xi) above by the effect of
the Exceptions and the effect of applicable public policy on the enforceability
of provisions relating to contribution or indemnification and (E) such counsel
may include therein such other customary qualifications reasonably acceptable to
the Underwriters and counsel for the Underwriters. References to the Prospectus
in this Section 5(c) shall include any amendments or supplements thereto at the
Closing Time.
(d) Opinion of Counsel for Underwriters. At the Closing Time, the
-----------------------------------
Underwriters shall have received the favorable opinion, dated as of the Closing
Time, of Winthrop, Xxxxxxx, Xxxxxx & Xxxxxxx, New York, New York, counsel for
the Underwriters, together with signed or reproduced copies of such letter for
each of the other Underwriters in form and substance satisfactory to the
Underwriters. In giving such opinion such counsel may rely, as to all matters
governed by the laws of jurisdictions other than the law of the State of New
York and the federal law of the United States, upon the opinions of counsel
satisfactory to the Underwriters. Such counsel may also state that, insofar as
such opinion involves factual matters, they have relied, to the extent they deem
proper, upon certificates of officers of the Company and Subsidiaries and
certificates of public officials.
(e) Opinion of Counsel for the Property Trustee. At the Closing Time,
-------------------------------------------
the Underwriters shall have received the favorable opinion, dated as of the
Closing Time, of Xxxxx, Xxxxxx & Xxxxxx, LLP, counsel for the Property Trustee
in form and substance satisfactory to counsel for the Underwriters, together
with signed or reproduced copies of such opinion for each of the other
Underwriters.
(f) Company Officers' Certificate. At the Closing Time, since the
-----------------------------
date hereof or since the respective dates as of which information is given in
the Registration Statement and the Prospectus except as stated therein, neither
the Company nor any Subsidiary shall have sustained any material loss or
interference with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree and there shall not have been any material
adverse change, or any development involving a prospective material adverse
change, in or affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and Subsidiaries
taken as a whole, and the Underwriters shall have received a certificate of the
President or a Vice President of the Company and of the chief financial or chief
accounting officer of the Company, dated as of the Closing Time, to the effect
that (i) there has been no such loss or interference or change, (ii) the
representations and warranties in Sections 1(a) and 1(c) (to the extent they
relate to the Company) hereof are true and correct with the same force and
effect as though expressly made at and as of the Closing Time, (iii) the Company
has complied with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to the Closing Time, and (iv) no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been instituted or, to such officers'
knowledge, are pending or are contemplated by the Commission.
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(g) Trust Officer's Certificate. At the Closing Time, there shall not
---------------------------
have been, since the date hereof or since the respective dates as of which
information is given in the Registration Statement and the Prospectus except as
stated therein, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Trust, whether or not arising in the ordinary course of business, and the
Underwriters shall have received a certificate of an authorized representative
of the Trust, dated as of the Closing Time, to the effect that (i) there has
been no such material adverse change, (ii) the representations and warranties in
Section 1(c) hereof (to the extent they relate to the Trust) are true and
correct with the same force and effect as though expressly made at and as of the
Closing Time and (iii) the Trust has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied at or prior to the
Closing Time.
(h) Partnership Officer's Certificate. At the Closing Time, there
---------------------------------
shall not have been, since the date hereof or since the respective dates as of
which information is given in the Registration Statement and the Prospectus
except as stated therein, any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Partnership, whether or not arising in the ordinary course of
business, and the Underwriters shall have received a certificate of an
authorized representative of the Partnership, dated as of the Closing Time, to
the effect that (i) there has been no such material adverse change, (ii) the
representations and warranties in Section 1(c) hereof (to the extent they relate
to the Partnership) are true and correct with the same force and effect as
though expressly made at and as of the Closing Time and (iii) the Partnership
has complied with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to the Closing Time.
(i) Comfort Letter. At the time of the execution of this Agreement,
--------------
the Underwriters shall have received from KPMG Peat Marwick LLP, a letter dated
such date, in form and substance satisfactory to the Underwriters, together with
signed or reproduced copies of such letter for each of the other Underwriters,
containing statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the financial
statements and certain financial information contained in the Registration
Statement and the Prospectus, based upon certain procedures carried out through
a date not more than five business days prior to the date of such letter, in a
form acceptable to the Underwriters.
(j) Bring-Down Comfort Letter. At the Closing Time, the Underwriters
-------------------------
shall have received from KPMG Peat Marwick LLP a letter, dated as of the Closing
Time, to the effect that they reaffirm the statements made in the letter
furnished pursuant to Section 5(i) hereof, except that the specified date
referred to therein shall be a date not more than three business days prior to
the Closing Time.
(k) Maintenance of Rating. At the Closing Time, the Trust Preferred
---------------------
Securities shall be rated at least "Baa3" by Xxxxx'x Investors Service, Inc. and
"BBB-" by Standard & Poor's, and the Company shall have delivered to the
Underwriters a letter dated on or prior to the Closing Time, from each such
rating agency, or other evidence satisfactory to the Underwriters, confirming
that the Trust Preferred Securities have such ratings; and since the date of
this Agreement, there shall not have occurred a downgrading in the rating
assigned to the Trust Preferred Securities or any of the Company's debt
securities by any "nationally recognized statistical rating agency," as that
term is defined by the Commission for purposes of
-26-
Rule 436(g)(2) of the 1933 Act Regulations, and no such organization shall have
publicly announced that it has under surveillance or review its rating of the
Trust Preferred Securities or any of the Company's debt securities.
(l) Approval of Listing. At the Closing Time, (i) the Trust Preferred
-------------------
Securities shall have been approved for listing on the NYSE, subject only to
official notice of issuance and (ii) the Company's registration statement on
Form 8-A relating to the Trust Preferred Securities shall have become effective
under the 1934 Act.
(m) Guarantee of Company's Performance. At the Closing Time, the
----------------------------------
Underwriters shall have received a letter from each Investment Subsidiary, dated
the Closing Time, to the effect that it agrees to guarantee the timely
performance by the Offerors of the indemnity and contribution obligations
contained in Sections 6 and 7 hereof and certain other obligations of the
Offerors under this Agreement.
(n) No Special Events. At the Closing Time, neither a Partnership
-----------------
Special Event (as defined in the Agreement of Limited Partnership) nor a Trust
Special Event (as defined in the Trust Agreement) shall have occurred and be
continuing.
(o) Additional Documents. At the Closing Time, counsel for the
--------------------
Underwriters shall have been furnished with such documents and opinions as they
may reasonably require for the purpose of enabling them to pass upon the
issuance and sale of the Offered Securities as herein contemplated, or in order
to evidence the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Offerors in connection with the issuance and sale of the Offered
Securities as herein contemplated shall be reasonably satisfactory in form and
substance to the Underwriters and counsel for the Underwriters.
(p) Termination of Agreement. If any condition specified in this
------------------------
Section 5 shall not have been fulfilled when and as required to be fulfilled,
this Agreement may be terminated by the Underwriters by notice to the Company at
any time at or prior to the Closing Time, and such termination shall be without
liability of any party to any other party except as provided in Section 4 hereof
and except that Sections 1, 6, 7 and 8 hereof shall survive any such termination
and remain in full force and effect.
SECTION 6. Indemnification.
---------------
(a) Indemnification of Underwriters. The Offerors will jointly and
-------------------------------
severally indemnify and hold harmless each Underwriter and each person, if any,
who controls any Underwriter within the meaning of Section 15 of the 1933 Act
and Section 20 of the 1934 Act against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter or such person may
become subject, under the 1933 Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, the Basic Prospectus (if used prior to
the date the Prospectus is filed with, or transmitted for filing to, the
Commission pursuant to Rule 424(b) of the 1933 Act Regulations),
-27-
the Prospectus, the Prospectus as amended or supplemented or any other
prospectus relating to the Offered Securities, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or omission, or any such alleged untrue
statement or omission, provided that (subject to Section 6(d) hereof) any such
settlement is effected with the written consent of the Company, and will
reimburse such Underwriter or such person for any legal or other expenses
reasonably incurred by it in connection with investigating or defending any such
action or claim as such expenses are incurred; provided, however, that the
Offerors shall not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in the
Registration Statement, the Basic Prospectus (if used prior to the date the
Prospectus is filed with, or transmitted for filing to, the Commission pursuant
to Rule 424(b) of the 1933 Act Regulations), the Prospectus, the Prospectus as
amended or supplemented or any other prospectus relating to the Offered
Securities, or any such amendment or supplement, in reliance upon and in
conformity with the Underwriter Information; provided further, however, that the
Offerors shall not be required to reimburse any Underwriter or such person for
fees and expenses of counsel other than one counsel for all Underwriters and one
counsel for all Underwriters in each jurisdiction in which proceedings are or
are threatened to be brought or of which matters of law are or may be at issue,
unless and to the extent that there are actual or potential conflicts of
interest between or among Underwriters or defenses available to one or more
Underwriters that are not available to other Underwriters; provided further,
however, that the indemnification contained in this Section 6(a) with respect to
the Basic Prospectus shall not inure to the benefit of any Underwriter (or to
the benefit of any person controlling such Underwriter) on account of any such
loss, claim, damage, liability or expense arising from the sale of the Offered
Securities by such Underwriter to any person if the Offerors have established
that a copy of the Prospectus shall not have been delivered or sent to such
person within the time required by the 1933 Act and the 1933 Act Regulations,
and the untrue statement or alleged untrue statement or omission or alleged
omission of a material fact contained in such Basic Prospectus was corrected in
the Prospectus, provided that the Offerors have delivered the Prospectus to the
several Underwriters in requisite quantity on a timely basis to permit such
delivery or sending.
(b) Indemnification of Offerors, Directors and Officers. Each
---------------------------------------------------
Underwriter severally agrees to indemnify and hold harmless the Offerors, each
of the directors of the Company, each of the officers of the Offerors who signed
the Registration Statement, and each person, if any, who controls any of the
Offerors within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act, against any losses, claims, damages or liabilities to which the
Offerors, such directors, such officers or such persons may become subject,
under the 1933 Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement, the Basic Prospectus (if used prior to the date the
Prospectus is filed with, or transmitted for filing to, the Commission pursuant
to Rule 424(b) of the 1933 Act Regulations), the Prospectus, the Prospectus as
amended or supplemented
-28-
or any other prospectus relating to the Offered Securities, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in the Registration
Statement, the Basic Prospectus (if used prior to the date the Prospectus is
filed with, or transmitted for filing to, the Commission pursuant to Rule 424(b)
of the 1933 Act Regulations), the Prospectus, the Prospectus as amended or
supplemented or any other prospectus relating to the Offered Securities, or any
such amendment or supplement, in reliance upon and in conformity with the
Underwriter Information; and will reimburse the Offerors, such directors, such
officers or such persons for any legal or other expenses reasonably incurred by
them in connection with investigating or defending any such action or claim as
such expenses are incurred.
(c) Actions Against Parties; Notification. Promptly after receipt by
-------------------------------------
an indemnified party under Section 6(a) or (b) hereof of notice of the
commencement of any action, such indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party under Section 6(a) or (b)
hereof, notify the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party shall not relieve it from
any liability that it may have to any indemnified party unless and only to the
extent that such indemnifying party is prejudiced by such omission nor relieve
it from any liability that it may have to any indemnified party otherwise than
under Section 6(a) or (b) hereof. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under Section 6(a) or (b) hereof for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation. No indemnifying party shall, without
the prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which indemnification or
contribution could be sought under this Section 6 or Section 7 hereof (whether
or not the indemnified parties are actual or potential parties thereto), unless
such settlement, compromise or consent (i) includes an unconditional release of
each indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
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(d) Settlement Without Consent If Failure To Reimburse. If at any
--------------------------------------------------
time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 6(a) hereof effected without its written consent
if (i) such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
have received notice of the terms of such settlement at least 30 days prior to
such settlement being entered into and (iii) such indemnifying party shall not
have reimbursed such indemnified party in accordance with such request prior to
the date of such settlement.
SECTION 7. Contribution. If the indemnification provided for in
------------
Section 6 hereof is unavailable to or insufficient to hold harmless an
indemnified party thereunder in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Offerors on the one hand and the Underwriters
on the other from the offering of the Trust Preferred Securities to which such
loss, claim, damage or liability (or action in respect thereof) relates. If,
however, the allocation provided by the immediately preceding sentence is not
permitted by applicable law or if the indemnified party omitted to give the
notice required under Section 6(c) hereof and such indemnifying party was
prejudiced by such omission, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Offerors on the one hand and the Underwriters on the other in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by the
Offerors on the one hand and the Underwriters on the other shall be deemed to be
in the same proportion as the total net proceeds from the sale of the Trust
Preferred Securities (before deducting expenses) received by the Offerors bear
to the total commissions or discounts received by the Underwriters in respect
thereof. The relative fault shall be determined by reference to, among other
things, whether the untrue statement of a material fact or the omission or
alleged omission to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading relates to
information supplied by the Offerors on the one hand or by the Underwriters on
the other and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Offerors and
the Underwriters agree that it would not be just and equitable if contribution
pursuant to this Section 7 were determined by per capita allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other method
of allocation that does not take account of the equitable considerations
referred to above in this Section 7. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to above in this Section 7 shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
public offering price at which the Trust Preferred Securities purchased by or
through it were sold exceeds the amount of any damages that such Underwriter has
otherwise
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been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 1933 Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The obligations of each of the Underwriters under this
Section 7 to contribute are several in proportion to the respective purchases
made by or through it to which such loss, claim, damage or liability (or action
in respect thereof) relates and are not joint. The obligations of the Offerors
under this Section 7 shall be in addition to any liability that the Offerors may
otherwise have.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Offerors who signed the
Registration Statement, and each person, if any, who controls any of the
Offerors within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act shall have the same rights to contribution as the Company.
SECTION 8. Representations, Warranties and Agreements to Survive
-----------------------------------------------------
Delivery. All representations, warranties and agreements contained in this
--------
Agreement or in certificates of officers of the Offerors or any Subsidiary
submitted pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or
controlling person, or by or on behalf of the Offerors, and shall survive
delivery of the Trust Preferred Securities to the Underwriters.
SECTION 9. Termination of Agreement.
------------------------
(a) Termination; General. The Underwriters may terminate this
--------------------
Agreement, by notice to the Company, at any time at or prior to the Closing Time
(i) if there has been, since the time of execution of this Agreement or since
the respective dates as of which information is given in the Registration
Statement or the Prospectus any material adverse change, or any development
involving a prospective material adverse change, in or affecting the general
affairs, management, financial position, stockholders' equity or results of
operations of the Company and Subsidiaries taken as a whole, or (ii) if there
has occurred any material adverse change in the financial markets in the United
States, any outbreak or escalation of hostilities involving the United States or
the declaration by the United States of a national emergency or war or any
change or development involving a prospective change in national or
international political, financial or economic conditions, in each case, such as
to make it, in the judgment of the Underwriters, impracticable to market the
Trust Preferred Securities or to enforce contracts for the sale of the Trust
Preferred Securities, or (iii) if trading in any securities of the Company has
been suspended or materially limited by the Commission, the NYSE or the Pacific
Stock Exchange, or if there has been a suspension or material limitation in
trading in securities generally on the NYSE, or (iv) if a general moratorium on
commercial banking activities in New York or Hawaii has been declared by either
Federal or New York or Hawaii State authorities.
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(b) Liabilities. If this Agreement is terminated pursuant to this
-----------
Section 9, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that Sections
1, 6, 7 and 8 hereof shall survive such termination and remain in full force and
effect.
SECTION 10. Default by one or more Underwriters. If one or more of
-----------------------------------
the Underwriters shall fail at the Closing Time to purchase the Trust Preferred
Securities that it or they are obligated to purchase under this Agreement (the
"Defaulted Securities"), the non-defaulting Underwriters shall have the right,
within 24 hours thereafter, to make arrangements for one or more of the non-
defaulting Underwriters, or any other underwriters, to purchase all, but not
less than all, of the Defaulted Securities in such amounts as may be agreed upon
and upon the terms herein set forth; if, however, the non-defaulting
Underwriters shall not have completed such arrangements within such 24-hour
period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
aggregate number of the Trust Preferred Securities to be purchased hereunder,
each of the non-defaulting Underwriters shall be obligated, severally and not
jointly, to purchase the full amount thereof in the proportions that their
respective underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the aggregate
number of the Trust Preferred Securities to be purchased hereunder, this
Agreement shall terminate without liability on the part of any non-defaulting
Underwriter.
No action taken pursuant to this Section 10 shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default that does not result in a termination
of this Agreement, either the non-defaulting Underwriters or the Company shall
have the right to postpone the Closing Time for a period not exceeding seven
days in order to effect any required changes in the Registration Statement or
the Prospectus or in any other documents or arrangements. As used herein, the
term "Underwriter" includes any person substituted for an Underwriter under this
Section 10.
SECTION 11. Notices. All notices and other communications hereunder
-------
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to Xxxxxxx Xxxxx at North Tower, World Financial
Center, New York, New York 10281, attention of Xxxxx XxXxxxxx, Director; and
notice to the Offerors shall be directed to Hawaiian Electric Industries, Inc.
at 000 Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxx 00000, attention of the Treasurer.
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SECTION 12. Parties. This Agreement shall inure to the benefit of
-------
and be binding upon the Underwriters and the Offerors and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters and the Offerors and their respective successors and the
controlling persons and officers and directors referred to in Sections 6 and 7
and their heirs and legal representatives, any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the Underwriters and the Offerors
and their respective successors, and said controlling persons and officers and
directors and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Trust Preferred Securities
from any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
SECTION 13. Governing Law and Time. This Agreement shall be governed
----------------------
by and construed in accordance with the laws of the State of New York. Except
as otherwise set forth herein, specified times of day refer to New York City
time.
SECTION 14. Effect of Headings. The Article and Section headings
------------------
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the Underwriters and the Offerors in accordance with its terms.
Very truly yours,
Hawaiian Electric Industries, Inc.
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Financial Vice President and CFO
By: /s/ Xxxxxxxxx X. Xxx
--------------------------------------------
Name: Xxxxxxxxx X. Xxx
Title: Treasurer
HEI Preferred Funding, LP
By: Hycap Management, Inc.,
as General Partner
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President
By: /s/ Xxxxx Xxx X. Xxxxxxxx
--------------------------------------------
Name: Xxxxx Xxx X. Xxxxxxxx
Title: Secretary
Hawaiian Electric Industries
Capital Trust I
By: Hawaiian Electric Industries, Inc.,
as Sponsor and Depositor
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Financial Vice President and CFO
By: /s/ Xxxxxxxxx X. Xxx
---------------------------------------------
Name: Xxxxxxxxx X. Xxx
Title: Treasurer
CONFIRMED AND ACCEPTED,
as of the date first above written:
Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated
Xxxxxxx, Xxxxx & Co.
Xxxx Xxxxxx Xxxxxxxx Inc.
X.X. Xxxxxxx & Sons, Inc.
Xxxx Xxxxx Xxxx Xxxxxx Incorporated
Xxxxxx X. Xxxxx & Co. Incorporated
By: Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx Incorporated
By: /s/ Xxxxx Xxxxx Xxxxxxxxxx
-----------------------------------------------
Authorized Signatory
SCHEDULE A
Number of
Trust Preferred
Name of Underwriter Securities
------------------- ---------------
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx
& Xxxxx Incorporated.................................... 675,000
Xxxxxxx, Xxxxx & Co....................................... 665,000
Xxxx Xxxxxx Xxxxxxxx Inc.................................. 665,000
X.X. Xxxxxxx & Sons, Inc.................................. 665,000
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated...................... 665,000
Xxxxxx X. Xxxxx & Co., Incorporated....................... 665,000
---------
Total..................................................... 4,000,000
=========
SCHEDULE A-1
SCHEDULE B
1. The initial public offering price per security for the Trust
Preferred Securities, determined as provided in Section 2 of this Agreement,
shall be $25.00.
2. The purchase price per security for the Trust Preferred
Securities to be paid by the several Underwriters shall be $25.00, being an
amount equal to the initial public offering price set forth above.
3. The compensation per Trust Preferred Security to be paid by the
Company to the several Underwriters in respect of their commitments hereunder
shall be $.7875; provided, however, that the compensation per Trust Preferred
Security for sales of 10,000 or more Trust Preferred Securities to a single
purchaser shall be $.5000.
SCHEDULE B-1
