EXHIBIT 4(B)
TRUST AGREEMENT
OF
HECO CAPITAL TRUST II
THIS TRUST AGREEMENT is made as of October 7, 1998 (the "Trust
Agreement"), by and among Hawaiian Electric Company, Inc., a Hawaii
corporation, as Depositor (the "Depositor"), The Bank of New York as trustee
(the "Property Trustee"), The Bank of New York (Delaware), a Delaware banking
corporation, as trustee (the "Delaware Trustee"), and T. Xxxxxxx Xxx, Xxxx X.
Xxxx and Xxxxx Xxx Xxxxxx, not individually but in their capacity as trustees
(collectively, the "Administrative Trustees" and, together with the Property
Trustee and the Delaware Trustee, the "Trustees"). The Depositor and the
Trustees hereby agree as follows:
1. The trust created hereby shall be known as "HECO Capital Trust II" (the
"Trust"), in which name the Trustees or the Depositor, to the extent
provided herein, may conduct the business of the Trust, make and execute
contracts, and xxx and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets over to the
Trust the sum of $25. Such amount shall constitute the initial trust
estate. It is the intention of the parties hereto that the Trust created
hereby constitute a business trust under Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C. (S)3801, et seq. (the "Business Trust Act"),
and that this document constitute the governing instrument of the Trust.
The Trustees are hereby authorized and directed to execute and file a
certificate of trust with the Delaware Secretary of State in such form
as the Trustees may approve.
3. The Depositor and the Trustees will enter into an amended and restated
Trust Agreement or Declaration satisfactory to each such party and
substantially in the form to be included as an exhibit to the
Registration Statement on Form S-3 (the "1933 Act Registration
Statement") referred to below, or in such other form as the Trustees and
the Depositor may approve, to provide for the contemplated operation of
the Trust created hereby and the issuance of the Preferred Securities
and Common Securities referred to therein. Prior to the execution and
delivery of such amended and restated Trust Agreement or Declaration,
the Trustees shall not have any duty or obligation hereunder or with
respect of the trust estate, except as otherwise required by applicable
law or as may be necessary to obtain prior to such execution and
delivery any licenses, consents or approvals required by applicable law
or otherwise. Notwithstanding the foregoing, the Trustees may take all
actions deemed proper as are necessary to effect the transactions
contemplated herein.
4. The Depositor, as the sponsor of the Trust, is hereby authorized (i) to
file with the Securities and Exchange Commission (the "Commission") and
to execute, in the case of the 1933 Act Registration Statement and 1934
Act Registration Statement (as herein defined), on behalf of the Trust,
(a) the 1933 Act Registration Statement, including pre-effective or
post-effective amendments to such Registration Statement, relating to
the registration under the Securities Act of 1933, as amended (the "1933
Act"), of the Preferred Securities of the Trust, (b) any preliminary
prospectus or prospectus supplement thereto relating to the Preferred
Securities required to be filed under the 1933 Act, and (c) a
Registration Statement on Form 8-A or other appropriate form (the "1934
Act Registration Statement") (including all pre-effective and post-
effective amendments thereto) relating to the registration of the
Preferred Securities of the Trust under the Securities Exchange Act of
1934, as amended; (ii) to file with the New York Stock Exchange or other
exchange, and execute on behalf of the Trust a listing application and
all other applications, statements, certificates, agreements and other
instruments as shall be necessary or desirable to cause the Preferred
Securities to be listed on the New York Stock Exchange or such other
exchange; (iii) to file and execute on behalf of the Trust such
applications, reports, surety bonds, irrevocable consents, appointments
of attorney for service
of process and other papers and documents as shall be necessary or
desirable to register the Preferred Securities under the securities or
"Blue Sky" laws of such jurisdictions as the Depositor, on behalf of the
Trust, may deem necessary or desirable; and (iv) to execute, deliver and
perform on behalf of the Trust an underwriting agreement with the
Depositor and the underwriter or underwriters of the Preferred
Securities of the Trust. In the event that any filing referred to in
clauses (i)-(iii) above is required by the rules and regulations of the
Commission, the New York Stock Exchange or other exchange, or state
securities or Blue Sky laws to be executed on behalf of the Trust by the
Trustees, the Trustees, in their capacities as trustees of the Trust,
are hereby authorized and directed to join in any such filing and to
execute on behalf of the Trust any and all of the foregoing, it being
understood that the Trustees, in their capacities as trustees of the
Trust, shall not be required to join any such filing or execute on
behalf of the Trust any such document unless required by the rules and
regulations of the Commission, the New York Stock Exchange or other
exchange, or state securities or Blue Sky laws. In connection with all
of the foregoing, the Trustees, solely in their capacities as trustees
of the Trust, and the Depositor hereby constitute and appoint any one or
more of Xxxx X. Xxxx, Xxxxxx X. Xxxxxxxxx, Xxxxx Xxx Xxxxxx, Xxxxx X.
Xxxxx and Xxxxxxx X. Xxx, with power in any one of them to act singly,
as his, her or its, as the case may be, true and lawful attorney-in-fact
and agent, with full power of substitution and resubstitution for the
Depositor or in the Depositor's name, place and stead, in any and all
capacities, to sign any and all amendments (including all pre-effective
and post-effective amendments) to the 1933 Act Registration Statement
and the 1934 Act Registration Statement and to file the same, with all
exhibits thereto, and any other documents in connection therewith, with
the Commission, granting unto said attorney-in-fact and agent full power
and authority to do and perform each and every act and thing requisite
and necessary to be done in connection therewith, as fully to all
intents and purposes as the Depositor might or could do in person,
hereby ratifying and confirming all that said attorney-in-fact and agent
or his respective substitute or substitutes, shall do or cause to be
done by virtue hereof.
5. This Trust Agreement may be executed in one or more counterparts.
6. The number of trustees of the Trust initially shall be five (5) and
thereafter the number of trustees of the Trust shall be such number as
shall be fixed from time to time by a written instrument signed by the
Depositor which may increase or decrease the number of trustees of the
Trust; provided, however, that to the extent required by the Business
Trust Act, one trustee of the Trust shall either be a natural person
which is a resident of the State of Delaware or, if not a natural
person, an entity which has its principal place of business in the State
of Delaware. The Delaware Trustee represents and warrants that it has
and will retain its principal place of business in the State of
Delaware. Subject to the foregoing, the Depositor is entitled to appoint
or remove without cause any trustee of the Trust at any time. Any
trustee of the Trust may resign upon thirty days' prior notice to the
Depositor.
7. This Trust Agreement shall be governed by, and construed in accordance
with, the laws of the State of Delaware (without regard to conflict of
laws principles).
8. In the event that the parties hereto do not enter into an amended and
restated trust agreement prior to the expiration of one hundred twenty
(120) days from the date hereof, (i) this Trust Agreement (except for
Section 9 hereof, which shall survive) shall terminate and the Trustees
shall have no further duties except for the filing of a certificate of
cancellation in accordance with the Business Trust Act; and (ii) the Trust
shall dissolve and terminate in accordance with Section 3808 of the
Business Trust Act.
9. Concerning the Trustees.
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(a) The Trustees accept the trust hereby created and agree to perform
their duties hereunder with respect to the same but only upon the terms of
this Trust Agreement. Each Trustee shall not be personally liable under any
circumstances, except for its own willful misconduct or gross negligence.
In particular, but not by way of limitation:
(i) No provision of this Trust Agreement shall require the
Trustees to expend or risk their own funds or otherwise incur any financial
liability in the performance of any of their duties hereunder, or in the
exercise of any of their rights or powers, if they shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it;
(ii) The recitals contained herein shall be taken as the
statements of the Trust, and the Trustees do not assume any responsibility
for their correctness;
(iii) If, (1) in performing its duties under this Trust Agreement,
the Property Trustee is required to decide between alternative courses of
action or (2) in construing any of the provisions in this Trust Agreement,
the Property Trustee finds the same ambiguous or inconsistent with any
other provisions contained herein or (3) the Property Trustee is unsure of
the application of any provision of this Trust Agreement, then the Property
Trustee shall deliver a notice to the Depositor requesting written
instructions of the Depositor as to the course of action to be taken. The
Property Trustee shall take such action, or refrain from taking such
action, as the Property Trustee shall be instructed in writing to take, or
to refrain from taking, by the Depositor; provided, however, that if the
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Property Trustee does not receive such instructions of the Depositor within
ten business days after it has delivered such notice, or such reasonably
shorter period of time set forth in such notice (which to the extent
practicable shall not be less than five business days), it may, but shall
be under no duty to, take or refrain from taking such action not
inconsistent with this Trust Agreement as it shall deem advisable and in
the best interest of the Depositor, in which event the Property Trustee
shall have no liability except for its own negligent action, its own
negligent failure to act or its own willful misconduct; and
(iv) To the extent that, at law or in equity, the Administrative
Trustees have duties (including fiduciary duties) and liabilities relating
thereto to the Trust, the Administrative Trustees shall not be liable to
the Trust for the Administrative Trustees' good faith reliance on the
provisions of this Trust Agreement. The provisions of this Trust Agreement,
to the extent that they restrict the duties and liabilities of the
Administrative Trustees otherwise existing at law or in equity, are agreed
by the Depositor to replace such other duties and liabilities of the
Administrative Trustees.
(b) The Property Trustee may rely and shall be protected in acting or
refraining from acting in good faith upon any resolution, opinion of
counsel, certificate, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent, order,
appraisal, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties.
(c) The Property Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
its agents or attorneys and the Property Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder.
(d) The Property Trustee may consult with counsel or other experts of
its selection and the advice or opinion of such counsel or other experts
with respect to legal matters or advice within the scope of such experts'
area of expertise shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted by it hereunder in good
faith and in reliance thereon.
(e) Except as expressly provided in this Section 9, in accepting and
performing the trust hereby created, each Trustee acts solely as a Trustee
hereunder and not in its individual capacity, and all persons having any
claim against a Trustee by reason of the transactions contemplated by this
Trust Agreement shall look only to the Trust's property for payment or
satisfaction thereof.
10. Compensation; Indemnity; Fees.
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The Depositor agrees:
(a) to pay to the Trustees from time to time such compensation as
shall have been agreed in writing with the Depositor for all services
rendered by them hereunder (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust);
(b) except as otherwise expressly provided herein, to reimburse the
Trustees upon request for all reasonable expenses, disbursements and
advances incurred or made by the Trustees in accordance with any provision
of this Trust Agreement (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to its own
negligent action, its own negligent failure to act or its own willful
misconduct (or, in the case of the Administrative Trustees, any such
expense, disbursement or advance as may be attributable to his/her gross
negligence); and
(c) to the fullest extent permitted by applicable law, to indemnify
and hold harmless the Trustees and any of the officers, directors,
employees or agents of the Trustees (the "Indemnified Persons") from and
against any loss, damage or claim incurred by such Indemnified Persons by
reason of any act or omission performed or omitted by such Indemnified
Persons in good faith on behalf of the Trust and in a manner such
Indemnified Persons reasonably believed to be within the scope of authority
conferred on such Indemnified Persons by this Trust Agreement, except that
no Indemnified Person shall be entitled to be indemnified in respect of any
loss, damage or claim incurred by such Indemnified Person by reason of
gross negligence (or, in the case of the Property Trustee, negligence) or
willful misconduct with respect to such acts or omissions.
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be duly executed as of the day and year first above written.
Hawaiian Electric Company, Inc. as
Depositor
/s/ Xxxx X. Xxxx
By: ___________________________________
Xxxx X. Xxxx,
Financial Vice President and
Treasurer
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/s/ Xxxxxx X. Xxxxxxxxx
By: _________________________________
Xxxxxx X. Xxxxxxxxx,
Assistant Treasurer
THE BANK OF NEW YORK, not in its
individual capacity but solely as
trustee of the Trust
/s/ Xxxxxx X. Xxxxxx
By: _________________________________
Name: Xxxxxx X. Xxxxxx
Title: Assistant Vice President
THE BANK OF NEW YORK (DELAWARE), not
in its individual capacity but
solely as trustee of the Trust
/s/ Xxxxxx X. Xxxxxx
By: _________________________________
Name: Xxxxxx X. Xxxxxx
Title: Authorized Signatory
T. Xxxxxxx Xxx, not in his
individual capacity, but solely as
trustee of the Trust
/s/ T. Xxxxxxx Xxx
By: _________________________________
Signature
Xxxx X. Xxxx, not in his individual
capacity, but solely as trustee of
the Trust
/s/ Xxxx X. Xxxx
By: _________________________________
Signature
Xxxxx Xxx Xxxxxx, not in her
individual capacity, but solely as
trustee of the Trust
/s/ Xxxxx Xxx Xxxxxx
By: _________________________________
Signature
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