EXHIBIT 1
2,000,000 Preferred Securities
HECO CAPITAL TRUST I
__% Cumulative Quarterly Income Preferred Securities, Series 1997 ("QUIPS"/sm/)
(liquidation preference $25 per preferred security)
guaranteed to the extent HECO Capital Trust I has funds as set forth herein by
HAWAIIAN ELECTRIC COMPANY, INC.
UNDERWRITING AGREEMENT
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March __, 1997
Xxxxxxx, Xxxxx & Co.
Xxxx Xxxxxx Xxxxxxxx Inc.
As representatives of the several
Underwriters named in Schedule I hereto
c/x Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
The undersigned, HECO Capital Trust I (the "Trust"), a statutory
business trust created under the Business Trust Act of the State of Delaware
(Title 12, Chapter 38 of the Delaware Code, 12 Del. C. Section 3801 et seq.)
(the "Delaware Act"), proposes to issue and sell to the several underwriters
named in Schedule I hereto (the "Underwriters," which term, when the context
permits, shall also include any underwriters substituted as hereinafter in
Section 11 hereof provided), for whom you are acting as representatives (in such
capacity, you shall hereinafter be referred to as the "Representatives"),
2,000,000 of its __% Cumulative Quarterly Income Preferred Securities, Series
1997 (liquidation preference $25 per preferred security), representing preferred
undivided beneficial interests in the assets of the Trust (the "Trust Preferred
Securities"), as follows:
__________________________
/sm/ QUIPS is a servicemark of Xxxxxxx, Xxxxx & Co.
SECTION 1. Purchase and Sale. (a) On the basis of the
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representations and warranties herein contained, and subject to the terms and
conditions herein set forth, the Trust shall issue and sell to each of the
Underwriters named in Schedule I hereto, and each Underwriter shall purchase
from the Trust at the time and place herein specified, severally and not
jointly, the number of Trust Preferred Securities set forth opposite the name of
such Underwriter in Schedule I hereto at a purchase price of $25.00 per Trust
Preferred Security.
(b) Hawaiian Electric Company, Inc. ("HECO" and, together with the
Trust, the "Offerors"), a corporation incorporated under the laws of the Kingdom
of Hawaii, (i) agrees to issue, or cause to be issued, to the Trust the
Debentures and the Guarantees (each as defined herein) concurrently with the
issue and sale of the Trust Preferred Securities as contemplated herein and (ii)
guarantees the timely performance by the Trust of its obligations under this
Section 1. The Trust agrees to purchase the Debentures with the proceeds of the
Trust Securities (as defined herein) as contemplated herein.
(c) Because the proceeds of the sale of the Trust Preferred
Securities, together with the proceeds from the sale by the Trust to HECO of the
Common Securities (as defined herein), will be used to purchase the Debentures,
HECO hereby agrees to pay on the Closing Date (as defined herein) to Xxxxxxx,
Xxxxx & Co., for the accounts of the several Underwriters, as compensation for
their arranging the investment therein of such proceeds, an amount equal to
$_________ per Preferred Security (or $_____________ in the aggregate).
SECTION 2. Description of Trust Preferred Securities. (a) The
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Trust Preferred Securities will be guaranteed, to the extent of funds held by
the Trust, by HECO with respect to distributions and payments upon liquidation,
redemption and otherwise (the "Trust Guarantee" and, together with the
Subsidiary Guarantees (as defined herein), the "Guarantees") pursuant to, and to
the extent set forth in, the Guarantee Agreement dated as of March __, 1997
between The Bank of New York, as trustee (the "Trust Guarantee Trustee"), and
HECO (the "Trust Guarantee Agreement"). Under an agreement as to expenses and
liabilities among the Obligors (as defined herein) and the Trust dated as of
March __, 1997 (the "Expense Agreement"), the Obligors will agree, for the
benefit of each person or entity to whom the Trust becomes indebted or liable,
to pay any costs, expenses or liabilities of the Trust, subject to certain
exceptions therein.
(b) The proceeds from the sale of the Trust Preferred Securities will
be combined with the proceeds from the sale by the Trust to HECO of its common
securities representing undivided beneficial interests in the assets of the
Trust (the "Trust Common Securities" and, together with the Trust Preferred
Securities, the "Trust Securities") and will be used by the Trust to purchase
(i) $31,546,400 principal amount of __% Junior Subordinated Deferrable Interest
Debentures, Series 1997, due March __, 2027 issued by HECO (the "HECO
Debentures" and, together with the Substituted HECO Debentures (as defined
herein) and the Guarantees, the "HECO Securities"), (ii) $10,000,000 principal
amount of __% Junior Subordinated Deferrable Interest Debentures, Series 1997,
due March __, 2027 issued by Hawaii Electric Light Company, Inc. ("HELCO" and,
together with MECO (as defined herein), the "Subsidiaries"), a corporation
incorporated under the laws of the Republic of Hawaii (the "HELCO Debentures"
and, together with the MECO Debentures (as defined herein), the "Subsidiary
Debentures"), and
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(iii) $10,000,000 principal amount of __% Junior Subordinated Deferrable
Interest Debentures, Series 1997, due March __, 2027 issued by Maui Electric
Company, Limited ("MECO" and, together with HECO and HELCO, the "Obligors"), a
corporation incorporated under the laws of the Territory of Hawaii (the "MECO
Debentures" and, together with the HECO Debentures and the HELCO Debentures, the
"Debentures"); provided, however, that, at the option of HECO pursuant to the
HECO Indenture (as defined herein), the date of maturity of all of the
Debentures, and any Substituted HECO Debentures (as defined herein), may be
shortened to a date not earlier than March __, 2002 or extended to a date not
later than March __, 2046. The Subsidiary Debentures will be fully, irrevocably
and unconditionally guaranteed by HECO on a subordinated basis (the "Subsidiary
Guarantees") as set forth in the Subsidiary Indentures (as defined herein).
(c) The HECO Debentures will be issued pursuant to a Junior Indenture
dated as of March __, 1997, between The Bank of New York, as trustee (the
"Debenture Trustee"), and HECO (such Junior Indenture, as so supplemented, the
"HECO Indenture"). The HELCO Debentures will be issued pursuant to a Junior
Indenture dated as of March __, 1997, among the Debenture Trustee, HELCO and
HECO (such Junior Indenture, as so supplemented, the "HELCO Indenture" and,
together with the MECO Indenture (as defined herein), the "Subsidiary
Indentures"). The MECO Debentures will be issued pursuant to a Junior Indenture
dated as of March __, 1997, among the Debenture Trustee, MECO and HECO (such
Junior Indenture, as so supplemented, the "MECO Indenture" and, together with
the HECO Indenture and the HELCO Indenture, the "Indentures"). Upon the
occurrence of an Early Dissolution Event (as defined in the Trust Agreement (as
defined herein)) specified in Section 8.02(a), (b) or (d) of the Trust
Agreement, provided that any necessary approval of the Public Utilities
Commission of the State of Hawaii (the "PUC") shall have been obtained, HECO
will issue to the Trust, pursuant to and in accordance with the HECO Indenture
and in exchange for the Subsidiary Debentures then held by the Trust, additional
__% Junior Subordinated Deferrable Interest Debentures due March __, 2027,
Series 1997, in the aggregate principal amount of such Subsidiary Debentures
(the "Substituted HECO Debentures" and, together with the HECO Debentures, on or
after the distribution thereof in accordance with the terms of the Trust
Agreement, the "Distributable HECO Debentures").
(d) The Trust Securities will be issued pursuant to an Amended and
Restated Trust Agreement of the Trust dated as of March __, 1997 among HECO, as
depositor, the Administrative Trustees (as defined herein), The Bank of New
York, as property trustee (the "Property Trustee"), The Bank of New York
(Delaware), as Delaware trustee (the "Delaware Trustee"), and the holders, from
time to time, of undivided beneficial interests in the assets of the Trust (the
"Trust Agreement"). The Trust Preferred Securities and the HECO Securities are
referred to herein as the "Securities."
SECTION 3. Representations and Warranties of the Offerors. Each of
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the Offerors jointly and severally represents and warrants to the several
Underwriters, and covenants and agrees with the several Underwriters, that:
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(a) HECO is duly organized under the laws of the Kingdom of Hawaii and
is validly existing as a corporation in good standing under the laws of the
State of Hawaii and has the necessary corporate power and authority to conduct
the business that it is described in the Prospectus (as defined herein) as
conducting, to own and operate the properties owned and operated by it in such
business, to issue the HECO Securities, to enter into and perform its
obligations under this Underwriting Agreement, the Trust Agreement, the
Indentures, the Trust Guarantee Agreement, the Expense Agreement and the HECO
Securities, to purchase, own and hold the Trust Common Securities issued by the
Trust and to consummate the transactions herein and therein contemplated; the
only subsidiaries of HECO are the Subsidiaries and the Trust; each of HELCO and
MECO is duly organized under the laws of the Republic of Hawaii and the
Territory of Hawaii, respectively, and each is validly existing as a corporation
in good standing under the laws of the State of Hawaii, and has the necessary
corporate power and authority to conduct the business that it is described in
the Prospectus as conducting, to own and operate the properties owned and
operated by it in such business, to issue the Subsidiary Debentures issued by
such Subsidiary, to enter into and perform its obligations under the Subsidiary
Indenture to which it is a party, the Expense Agreement and such Subsidiary
Debentures and to consummate the transactions herein and therein contemplated;
all of the issued and outstanding shares of common stock of the Subsidiaries
have been duly and validly issued and are fully-paid and non-assessable and are
directly owned by HECO, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity other than the lien of the indenture
securing HECO's first mortgage bonds; and none of such common stock was issued
in violation of preemptive or similar rights of any securityholder of the
Subsidiaries.
(b) The Trust has been duly created and is validly existing as a
business trust in good standing under the Delaware Act, has the power and
authority to own its property, to conduct its business as described in the
Prospectus, to issue and sell the Trust Securities, to enter into and perform
its obligations under this Underwriting Agreement and the Trust Securities and
to consummate the transactions herein contemplated; the Trust has no
subsidiaries and is duly qualified to transact business and in good standing in
each jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that the
failure to be so qualified or be in good standing would not have a material
adverse effect on the Trust; the Trust has conducted and will conduct no
business other than the transactions contemplated by this Underwriting Agreement
and described in the Prospectus; the Trust is not a party to or otherwise bound
by any agreement other than those described in the Prospectus, and is not a
party to any action, suit or proceeding of any nature; the Trust is not an
association taxable as a corporation for United States federal income tax
purposes; and the Trust is and will be treated as a consolidated subsidiary of
HECO pursuant to generally accepted accounting principles.
(c) The Offerors have filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (File Nos.
333-20757 and 333-20757-01) and a Preliminary Prospectus (as defined herein) for
the registration of the Securities under the Securities Act of 1933, as amended
(the "Securities Act"), and such registration statement, as amended, has become
effective under the Securities Act. The Offerors qualify for use of Form S-3
for the registration of the Securities. Such registration statement, as amended
at the time it (or the most recent post-effective amendment thereto) became
effective under the Securities Act, including the information deemed to be part
thereof pursuant to Rule 430A(b) under the
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Securities Act, is hereinafter referred to as the "Registration Statement." The
prospectus constituting a part of the Registration Statement, including the
documents incorporated or deemed to be incorporated by reference therein
pursuant to Item 12 of Form S-3 under the Securities Act, in the form
transmitted for filing to the Commission pursuant to Rule 424(b)(1) or (b)(4)
under the Securities Act and as it may thereafter be amended or supplemented
pursuant to Section 6(d) hereof, is hereinafter referred to as the "Prospectus"
(except that if any revised prospectus shall be provided to the Underwriters by
the Offerors for use in connection with the offering of the Securities that
differs from the Prospectus transmitted for filing to the Commission pursuant to
Rule 424(b) under the Securities Act, the term "Prospectus" shall refer to such
revised prospectus from and after the time it is first provided to the
Underwriters for such use). For purposes hereof, "Preliminary Prospectus" shall
mean any preliminary prospectus included in the Registration Statement prior to
the time the Registration Statement became effective or was transmitted for
filing to the Commission pursuant to Rule 424(a) under the Securities Act.
(d) After the date hereof and during the time specified in Section
6(d) hereof, the Offerors will not file any amendment to the Registration
Statement or amendment or supplement to the Prospectus, without prior notice to
the Underwriters and to Winthrop, Stimson, Xxxxxx & Xxxxxxx, counsel for the
Underwriters ("Counsel for the Underwriters"), or any such amendment or
supplement to which Counsel for the Underwriters shall reasonably object on
legal grounds in writing.
(e) The Registration Statement, at the time it became effective under
the Securities Act, the Indentures, the Trust Agreement and the Trust Guarantee
Agreement, at such time, and any Preliminary Prospectus, when delivered to the
Underwriters for their use in marketing the Trust Preferred Securities, fully
complied, and the Prospectus, when delivered to the Underwriters for their use
in making confirmations of sales of the Trust Preferred Securities and at the
Closing Date, as it may then be amended or supplemented, will fully comply, in
all material respects with the applicable provisions of the Securities Act and
the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), and in
each case the rules and regulations of the Commission thereunder or pursuant to
such rules and regulations did or will be deemed to comply therewith. The
documents incorporated or deemed to be incorporated by reference in the
Prospectus pursuant to Item 12 of Form S-3, on the date filed with the
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), fully complied and will fully comply in all material respects
with the applicable provisions of the Exchange Act and the rules and regulations
of the Commission thereunder or pursuant to such rules and regulations did or
will be deemed to comply therewith. On the date the Registration Statement was
declared effective by the Commission under the Securities Act, the Registration
Statement did not, and on the date that any post-effective amendment to the
Registration Statement becomes effective under the Securities Act, the
Registration Statement, as amended by any such post-effective amendment, will
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 that any Preliminary Prospectus was delivered to
the Underwriters for their use in marketing the Trust Preferred Securities, such
Preliminary Prospectus did 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. At the time the Prospectus is delivered to the Underwriters for
their use in making
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confirmations of sales of the Trust Preferred Securities and at the Closing
Date, the Prospectus, as it may then be amended or supplemented, 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 are made, not misleading. The documents
incorporated or deemed to be incorporated by reference in the Prospectus
pursuant to Item 12 of Form S-3, on the date filed with the Commission pursuant
to the Exchange Act, did not 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 foregoing representations and warranties in this
Section 3(e) shall not apply to statements or omissions from the Registration
Statement or the Prospectus (x) made in reliance upon and in conformity with
written information furnished to the Offerors by any Underwriter through
Xxxxxxx, Xxxxx & Co. expressly for use therein which, for purposes of this
Underwriting Agreement, shall be deemed to consist of the matters described in
the stabilization paragraph on page 2 of the Prospectus, the second paragraph
under the table set forth under "Underwriting" in the Prospectus and the
penultimate sentence of the fifth paragraph under the table set forth under
"Underwriting" in the Prospectus (collectively, the "Underwriter Information")
and (y) with respect to the statements of eligibility on Form T-1 filed as
exhibits to the Registration Statement.
(f) The consolidated financial statements of HECO and the
Subsidiaries incorporated by reference in the Prospectus present fairly in all
material respects the financial position of HECO and the Subsidiaries as of the
dates indicated and the results of its operations for the periods specified; and
such consolidated financial statements have been prepared in conformity with
generally accepted accounting principles consistently applied in all material
respects with respect to the periods involved, except as may be noted therein
and, in the case of unaudited financial statements, subject to year-end and
audit adjustments.
(g) The Trust Common Securities have been duly authorized by the
Trust Agreement and, when issued and delivered by the Trust to HECO against
payment therefor as described in the Registration Statement and the Prospectus,
will constitute validly issued undivided beneficial interests in the assets of
the Trust and will be entitled to the benefits of the Trust Agreement; the
issuance of the Trust Common Securities is not subject to preemptive or other
similar rights; at the Closing Date, all of the Trust Common Securities will be
directly owned by HECO free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity other than the lien of the indenture
securing HECO's first mortgage bonds; and the Trust Common Securities will
conform in all material respects to the description thereof contained in the
Prospectus.
(h) This Underwriting Agreement has been duly authorized, executed
and delivered by each of the Trust and HECO.
(i) The Trust Agreement has been duly qualified under the Trust
Indenture Act, has been duly authorized by HECO and, at the Closing Date, will
have been duly executed and delivered by HECO and each of the Administrative
Trustees and, assuming due authorization, execution and delivery of the Trust
Agreement by the Property Trustee and the Delaware Trustee, will constitute a
valid and binding instrument of HECO and the Administrative Trustees,
enforceable against HECO and the Administrative Trustees in accordance with its
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terms, except as limited by applicable bankruptcy, insolvency, fraudulent
conveyance or transfer, reorganization or other similar laws affecting
creditors' rights and by general equitable principles (regardless of whether
enforceability is considered in a proceeding in equity or at law); and the Trust
Agreement will conform in all material respects to the description thereof in
the Prospectus.
(j) The Trust Guarantee Agreement has been duly qualified under the
Trust Indenture Act, has been duly authorized by HECO and, at the Closing Date,
will have been duly executed and delivered by HECO and, assuming due
authorization, execution and delivery of the Trust Guarantee Agreement by the
Trust Guarantee Trustee, will constitute a valid and binding instrument of HECO,
enforceable against HECO in accordance with its terms, except as limited by
applicable bankruptcy, insolvency, fraudulent conveyance or transfer,
reorganization or other similar laws affecting creditors' rights and by general
equitable principles (regardless of whether enforceability is considered in a
proceeding in equity or at law); and the Trust Guarantee and the Trust Guarantee
Agreement will conform in all material respects to the descriptions thereof
contained in the Prospectus.
(k) The Trust Preferred Securities have been duly authorized by the
Trust Agreement and, on the Closing Date, will have been duly executed by an
Administrative Trustee and, when issued and delivered against payment therefor
in accordance with the provisions of this Underwriting Agreement and the Trust
Agreement, will constitute validly issued and (subject to the terms of the Trust
Agreement) fully paid and non-assessable undivided beneficial interests in the
assets of the Trust and will be entitled to the benefits of the Trust Agreement;
the issuance of the Trust Preferred Securities is not subject to preemptive or
other similar rights; holders of Trust Preferred Securities 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; and the Trust Preferred Securities will conform in all material
respects to the description thereof contained in the Prospectus.
(l) Each of the HECO Indenture and, with respect to the Subsidiary
Guarantees, the Subsidiary Indentures has been duly qualified under the Trust
Indenture Act, has been duly authorized by HECO and, at the Closing Date, will
have been duly executed and delivered by XXXX and, assuming due authorization,
execution and delivery of the Indentures by the Debenture Trustee, will
constitute a valid and binding instrument of HECO, enforceable against HECO in
accordance with its terms, except as limited by applicable bankruptcy,
insolvency, fraudulent conveyance or transfer, reorganization or other similar
laws affecting creditors' rights and by general equitable principles (regardless
of whether enforceability is considered in a proceeding in equity or at law);
and the HECO Indenture and the Subsidiary Guarantees will conform in all
material respects to the description thereof contained in the Prospectus.
(m) The Subsidiary Indenture to which each Subsidiary is a party has
been duly authorized by such Subsidiary and, at the Closing Date, will have been
duly executed and delivered by such Subsidiary and, assuming due authorization,
execution and delivery of such Subsidiary Indenture by the Debenture Trustee,
will constitute a valid and binding instrument of such Subsidiary, enforceable
against such Subsidiary in accordance with its terms, except as limited by
applicable bankruptcy, insolvency, fraudulent conveyance or transfer,
reorganization or other similar laws affecting creditors' rights and by general
equitable principles (regardless of whether
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enforceability is considered in a proceeding in equity or at law); and the
Subsidiary Indentures will conform in all material respects to the description
thereof contained in the Prospectus.
(n) The HECO Debentures have been duly authorized and, on the Closing
Date, will have been duly executed by HECO and, when authenticated in the manner
provided for in the HECO Indenture and delivered against payment therefor by the
Trust as described in the Prospectus, will constitute valid and binding
obligations of HECO, enforceable against HECO in accordance with their terms,
except as limited by applicable bankruptcy, insolvency, fraudulent conveyance or
transfer, reorganization or other similar laws affecting creditors' rights and
by general equitable principles (regardless of whether enforceability is
considered in a proceeding in equity or at law), and will be entitled to the
benefits of such Indenture; and the HECO Debentures will conform in all material
respects to the description thereof contained in the Prospectus.
(o) The Substituted HECO Debentures have been duly authorized by HECO
and, if and when approved by the PUC and then executed and authenticated in the
manner provided for in the HECO Indenture and delivered in exchange for the
Subsidiary Debentures as described in the Prospectus, will constitute valid and
binding obligations of HECO, enforceable against HECO in accordance with their
terms, except as limited by applicable bankruptcy, insolvency, fraudulent
conveyance or transfer, reorganization or other similar laws affecting
creditors' rights and by general equitable principles (regardless of whether
enforceability is considered in a proceeding in equity or at law), and will be
entitled to the benefits of the HECO Indenture; and the Substituted HECO
Debentures will conform in all material respects to the description thereof
contained in the Prospectus.
(p) The Subsidiary Debentures issued by each Subsidiary have been
duly authorized and, on the Closing Date, will have been duly executed by such
Subsidiary and, when authenticated in the manner provided for in the applicable
Subsidiary Indenture and delivered against payment therefor by the Trust as
described in the Prospectus, will constitute valid and binding obligations of
such Subsidiary, enforceable against such Subsidiary in accordance with their
terms, except as limited by applicable bankruptcy, insolvency, fraudulent
conveyance or transfer, reorganization or other similar laws affecting
creditors' rights and by general equitable principles (regardless of whether
enforceability is considered in a proceeding in equity or at law), and will be
entitled to the benefits of such Subsidiary Indenture; and the Subsidiary
Debentures will conform in all material respects to the description thereof
contained in the Prospectus.
(q) The Expense Agreement has been duly authorized by each Obligor
and, at the Closing Date, will have been duly executed and delivered by each
Obligor and will constitute a valid and binding instrument of each Obligor,
enforceable against such Obligor in accordance with its terms, except as limited
by applicable bankruptcy, insolvency, fraudulent conveyance or transfer,
reorganization or other similar laws affecting creditors' rights and by general
equitable principles (regardless of whether enforceability is considered in a
proceeding in equity or at law); and the Expense Agreement will conform in all
material respects to the description thereof contained in the Prospectus.
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(r) X. Xxxxxxx Xxx, Xxxx X. Xxxx and Xxxxxx X. Xxxxxxxxx, in their
capacities as administrative trustees (the "Administrative Trustees") under the
Trust Agreement, are officers of HECO and have been duly authorized by HECO to
execute and deliver the Trust Agreement.
(s) The Trust is not, and as a result of the offering and sale of the
Trust Preferred Securities and the application of the proceeds thereof as
described in the Prospectus, will not be an "investment company" or an entity
"controlled" by an "investment company" within the meaning of the Investment
Company Act of 1940, as amended (the "Investment Company Act").
(t) The Trust is not in violation of its Certificate of Trust filed
in the office of the Secretary of State of the State of Delaware on December 31,
1996 (the "Trust Certificate") or the Trust Agreement; the execution and
delivery by the Obligors and the Trust of, and the performance by the Obligors
and the Trust of their respective obligations under, this Underwriting
Agreement, the Securities, the Subsidiary Debentures, the Indentures, the Trust
Agreement, the Trust Guarantee Agreement, the Expense Agreement and the other
agreements and instruments contemplated hereby and thereby to which they are a
party do not and will not conflict with any existing law, court or
administrative regulation, decree or order to which any of the Obligors or the
Trust is subject or result in a breach of or a default under any agreement,
indenture, mortgage, lease, deed or trust or other instrument to which it is a
party or by which it or its property is bound.
(u) Neither any Obligor nor the Trust will take or omit to take any
action the taking or omission of which will in any way cause or result in the
proceeds from the sale of the Trust Preferred Securities to be applied in a
manner other than as provided in the Trust Agreement, the Indentures, the Trust
Guarantee Agreement, the Expense Agreement and this Underwriting Agreement and
as described in the Prospectus.
(v) Except as set forth or contemplated in the Prospectus, as it may
then be amended or supplemented, the Obligors possess adequate franchises,
licenses, permits, and other rights to conduct their respective businesses and
operations as now conducted, without any known conflicts with the rights of
others, where the failure to possess such franchise, license, permit or other
right, or where such conflict, would have a material adverse effect on the
consolidated financial position, stockholder's equity or results of operations
of HECO and the Subsidiaries taken as a whole.
(w) To the knowledge of each of the Trust and HECO, there is no
action, suit, proceeding or formal investigation at law or in equity or before
or by any governmental, regulatory or administrative agency pending or
threatened against the Trust or the Obligors that would have a material adverse
effect on (i) the transactions contemplated by the Trust Agreement, the
Indentures, the Trust Guarantee Agreement, the Expense Agreement, this
Underwriting Agreement or any agreement or instrument to which any of the
Obligors or the Trust is a party and that are used or contemplated for use in
the consummation of the transactions contemplated hereby or thereby or (ii) the
validity or enforceability of the Securities,
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the Subsidiary Debentures, the Trust Agreement, the Indentures, the Trust
Guarantee Agreement, the Expense Agreement or this Underwriting Agreement.
(x) The PUC has issued an order approving the issuance of HECO
Securities (but not the Substituted HECO Debentures) by HECO and of the
Subsidiary Debentures by the Subsidiaries on terms not inconsistent with those
set forth in this Underwriting Agreement and described in the Prospectus and
such order is in full force and effect; and no approval of any other
governmental agency or public body is necessary in connection with the issuance
of the HECO Securities by HECO or the Subsidiary Debentures by the Subsidiaries,
other than such approvals, authorizations, registrations or qualifications as
may be required from the PUC with respect to the issuance by HECO of the
Substituted HECO Debentures or under Blue Sky or other state or foreign
securities laws or as may have been obtained;
(y) HECO is a holding company within the meaning of the Public
Utility Holding Company Act of 1935, as amended; however, by virtue of having
filed appropriate applications under Section 3(a)(2) of such Act, HECO is exempt
from all provisions thereunder other than Section 9(a)(2) thereof, and will
remain so exempt, subject to, future timely filings of annual exemption
statements and such filings as are required by Section 33 of such Act with
respect to interests of HECO or any of its affiliates 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;
SECTION 4. Offering. The Offerors are advised by the
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Representatives that the Underwriters propose to make a public offering of the
Trust Preferred Securities as soon after the date hereof as in their judgment
the Underwriters deem advisable. The Offerors are further advised by the
Representatives that the Trust Preferred Securities will be offered to the
public at the initial public offering price specified in the Prospectus.
SECTION 5. Time and Place of Closing; Certificates. Delivery of
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certificates for the Trust Preferred Securities and payment of the purchase
price therefor by wire transfer of immediately available funds shall be made
through the facilities of The Depository Trust Company, New York, New York
("DTC"), pursuant to such arrangements and instructions as shall be agreed upon
by the Offerors and the Representatives at 10:00 A.M. (Eastern time) on March
__, 1997, or at such other time on the same or such other day as shall be agreed
upon by the Offerors and the Representatives, or as may be established in
accordance with Section 11 hereof. The time and date of such delivery and
payment are herein called the "Closing Date."
Certificates for the Trust Preferred Securities shall be in definitive
form and registered in such denominations as the Representatives shall request
not later than the business day prior to the Closing Date. For purposes of this
Underwriting Agreement, "business day" means any day on which the New York Stock
Exchange, Inc. (the "NYSE") is open for bidding.
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On the Closing Date, HECO will pay, or cause to be paid, the
compensation payable at such time to the Underwriters pursuant to Section 1(c)
hereof by wire transfer in immediately available funds to an account designated
by, or by cashier's check payable to, Xxxxxxx, Xxxxx & Co., for the accounts of
the several Underwriters.
SECTION 6. Covenants of the Offerors. Each of the Offerors jointly
-------------------------
and severally covenants and agrees with the several Underwriters that:
(a) Not later than the Closing Date, XXXX will deliver to the
Representatives a copy of the Registration Statement in the form that it became
effective under the Securities Act or a conformed copy thereof, certified by an
officer of HECO to be in such form.
(b) The Offerors will deliver to the Underwriters as many copies of
the Prospectus (and any amendments or supplements thereto) as the Underwriters
may reasonably request.
(c) The Offerors will cause the Prospectus to be transmitted for
filing to the Commission pursuant to and in compliance with Rule 424(b) under
the Securities Act and will advise the Representatives promptly of the issuance
of any stop order under the Securities Act with respect to the Registration
Statement or the institution of any proceedings therefor of which either of the
Offerors shall have received notice. Each of the Offerors will use reasonable
efforts to prevent the issuance of any such stop order and to secure the prompt
removal thereof if issued.
(d) During such period of time as the Underwriters are required by
law to deliver a prospectus relating to any of the Securities, if any event
relating to or affecting the Offerors, or of which the Offerors shall be advised
by the Representatives in writing, shall occur that in the opinion of the
Representatives and HECO should be set forth in a supplement or amendment to the
Prospectus in order to make the Prospectus not misleading in the light of the
circumstances when it is delivered to a purchaser of any of the Securities, or
if it shall be necessary in the opinion of the Representatives and HECO at any
such time to amend the Registration Statement or amend or supplement the
Prospectus in order to comply with the requirements of the Securities Act, the
Exchange Act or the Trust Indenture Act or, in each case, the rules and
regulations of the Commission thereunder, the Offerors will amend or supplement
the Prospectus so that, as amended or supplemented, it 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 when
the Prospectus is delivered to a purchaser, not misleading or amend the
Registration Statement or amend or supplement the Prospectus so that, as amended
or supplemented, the Registration Statement or the Prospectus will comply with
such requirements.
(e) HECO will, on behalf of the Trust, make generally available to
the Trust's security holders, as soon as practicable, an earning statement
(which need not be audited) covering a period of at least twelve months
beginning after the "effective date of the registration statement" within the
meaning of Rule 158 under the Securities Act, which earning statement
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shall be in such form, and be made generally available to security holders in
such a manner, as to meet the requirements of the last paragraph of Section
11(a) of and Rule 158 under the Securities Act.
(f) The Offerors will furnish such proper information as may be
lawfully required, and will otherwise cooperate with the Underwriters, to
qualify the Trust Preferred Securities and, if applicable, the Distributable
HECO Debentures for offer and sale under the state securities or blue sky laws
of such jurisdictions as the Representatives may reasonably designate, provided
that the Offerors shall not be required to qualify as a foreign corporation or
dealer in securities or to file any general consents to service of process under
the laws of any jurisdiction.
(g) HECO will, except as herein provided, pay all fees, expenses and
taxes incident to the performance of each Offeror's obligations under this
Underwriting Agreement, including, but not limited to, (i) the preparation and
filing of the Registration Statement and any post-effective amendment thereto,
(ii) the printing, issuance and delivery of the certificates for the Trust
Preferred Securities to the Underwriters, (iii) the qualification of the Trust
Preferred Securities and, if applicable, the Distributable HECO Debentures under
the state securities or blue sky laws of various jurisdictions in accordance
with the provisions of Section 6(f) hereof, including the reasonable fees and
disbursements of Counsel for the Underwriters in connection therewith and with
the preparation of any Blue Sky Survey (and any supplement thereto) relating to
any of the Securities up to a maximum of $15,000, (iv) the printing and delivery
to the Underwriters of reasonable quantities of copies of the Registration
Statement, any Blue Sky Survey (and any supplement thereto) relating to any of
the Securities, any Preliminary Prospectus and the Prospectus and any amendment
or supplement thereto, (v) the ratings of the Trust Preferred Securities and, if
applicable, the Distributable HECO Debentures by one or more nationally
recognized statistical rating agencies, (vi) the listing of the Trust Preferred
Securities on the NYSE and, if applicable, the Distributable HECO Debentures on
the NYSE, or such other exchange or other organization, and the registration
thereof under the Exchange Act in accordance with Section 6(i) hereof and (vii)
all other costs and expenses incident to the performance of its obligations
hereunder that are not otherwise specifically provided for in this Section 6(g).
If this Underwriting Agreement shall be terminated in accordance with the
provisions of Section 7 (other than paragraph (l) thereof) or 8 hereof, the
Obligors will reimburse the Underwriters for all out-of-pocket expenses,
including fees and disbursements of Counsel for the Underwriters, reasonably
incurred by the Underwriters in contemplation of the performance of this
Underwriting Agreement. The Obligors shall not in any event be liable to the
Underwriters for damages on account of loss of anticipated profits.
(h) Each of the Offerors will not, and HECO will cause each of HELCO
and MECO to not, offer, sell, contract to sell or otherwise dispose of any Trust
Preferred Securities, any other beneficial interests in the assets of the Trust,
or any preferred securities or any other securities of the Trust or the Obligors
that are substantially similar to the Trust Preferred Securities, including any
guarantee of such securities, or any securities convertible into or exchangeable
for or that represent the right to receive securities, preferred securities or
any such substantially similar securities of either the Trust or the Obligors,
except for the Securities, without the consent of the Representatives until the
earlier to occur of (i) 30 days after the
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Closing Date and (ii) the date of the termination of the trading restrictions on
the Trust Preferred Securities, as determined by the Underwriters.
(i) 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 Exchange Act; and, upon any
distribution of the Distributable HECO Debentures to holders of the Trust
Preferred Securities, HECO will use its best efforts to have the Distributable
HECO Debentures listed on the NYSE, or such other exchange or other organization
on which the Trust Preferred Securities are then listed, and to have the
Distributable HECO Debentures registered under the Exchange Act.
SECTION 7. Conditions of Underwriters' Obligations. The obligations
---------------------------------------
of the Underwriters to purchase and pay for the Trust Preferred Securities shall
be subject to the accuracy on the date hereof and on the Closing Date of the
representations and warranties made herein on the part of the Offerors and of
any certificates furnished by the Offerors on the Closing Date and to the
following conditions:
(a) The Prospectus shall have been transmitted for filing to the
Commission in the manner and within the time period required by Rule 424(b)
under the Securities Act.
(b) No stop order suspending the effectiveness of the Registration
Statement shall be in effect at or prior to the Closing Date; no proceedings for
such purpose shall be pending before, or, to the knowledge of the Offerors or
the Underwriters, threatened by, the Commission on the Closing Date.
(c) At the Closing Date, the Representatives shall have received an
opinion of Xxxxxxxx Xxxxxxxx Xxxxx & Xxxxxx, counsel for the Obligors, dated the
Closing Date, to the effect that:
(i) HECO has been duly incorporated under the laws of the Kingdom
of Hawaii, is validly existing as a corporation in good standing under the
laws of the State of Hawaii and has the corporate power and authority to
carry on the business stated in the Prospectus as being conducted by it;
and all shares of its issued and outstanding common stock have been duly
and validly issued and are fully paid and non-assessable;
(ii) MECO and HELCO are corporations duly incorporated under the
laws of the Territory of Hawaii and the Republic of Hawaii, respectively,
and are validly existing and in good standing under the laws of the State
of Hawaii and have the corporate power and authority to carry on the
business as stated in the Prospectus as being conducted by them; and all of
the issued and outstanding shares of common stock of the Subsidiaries have
been duly and validly issued and are fully-paid and non-assessable;
(iii) other than litigation and proceedings referred to in the
Prospectus, to the best of such counsel's knowledge, (A) HECO and the
Subsidiaries are not engaged in, or threatened with, any litigation and (B)
there are no governmental proceedings, or any governmental proceedings
threatened, with respect to any of HECO and the Subsidiaries
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or their property, that, in the case of either clause (A) or (B) above,
such counsel (or other counsel who have permitted such counsel to rely on
their opinions or reports as to litigation or proceedings that are not
being principally handled by such counsel) has concluded is reasonably
expected to have a material adverse effect on HECO and Subsidiaries taken
as a whole;
(iv) HECO is the record holder of all outstanding common stock of
the Subsidiaries, free and clear of any perfected encumbrance or security
interest other than of the lien of the indenture securing XXXX's first
mortgage bonds;
(v) the PUC has issued an order approving the issuance of HECO
Securities (but not the Substituted HECO Debentures) by HECO and of the
Subsidiary Debentures by the Subsidiaries on terms not inconsistent with
those set forth in this Underwriting Agreement and described in the
Prospectus and, to the best of such counsel's knowledge, such order remains
in full force and effect on the date of such opinion; and no approval of
any other governmental agency or public body is required in connection with
the issuance of HECO Securities by HECO or the Subsidiary Debentures by the
Subsidiaries, other than such approvals, authorizations, registrations or
qualifications as may be required from the PUC with respect to the issuance
by HECO of the Substituted HECO Debentures or under Blue Sky or other state
or foreign securities laws (as to which such counsel has not been requested
to and does not express any opinion) or as may have been obtained;
(vi) HECO is a holding company within the meaning of the Public
Utility Holding Company Act of 1935, as amended; however, by virtue of
having filed appropriate applications under Section 3(a)(2) of such Act,
HECO is exempt from all provisions thereunder other than Section 9(a)(2)
thereof, and will remain so exempt, subject to future timely filings of
annual exemption statements and such filings as are required by Section 33
of such Act with respect to interests of HECO or any of its affiliates 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;
(vii) the Trust is not, and as a result of the offering and sale of
the Trust Preferred Securities and the application of the proceeds thereof
as described in the Prospectus, will not be an "investment company" or an
entity "controlled" by an "investment company" within the meaning of the
Investment Company Act;
(viii) the Registration Statement, at the time it was declared
effective by the Commission under the Securities Act, and the Prospectus,
at the time it was transmitted for filing to the Commission pursuant to
Rule 424(b) under the Securities Act, complied as to form in all material
respects with the Securities Act and the Trust Indenture Act and in each
case the rules and regulations of the Commission thereunder; each document
incorporated by reference in the Prospectus as originally filed pursuant to
the Exchange Act complied as to form when so filed in all material respects
with the Exchange Act and the rules and regulations of the Commission
thereunder; and the Registration Statement has become, and on the Closing
Date is, effective under the Securities Act and, to the
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best of such counsel's knowledge, no proceedings for a stop order with
respect thereto are threatened or pending under Section 8 of the Securities
Act;
(ix) nothing has come to the attention of such counsel to cause them
to believe that the Registration Statement, at the time it was declared
effective by the Commission under the Securities Act, 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 transmitted for
filing to the Commission pursuant to Rule 424(b) under the Securities Act
or on the Closing Date, 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 the provisions of the Securities and
the Subsidiary Debentures (other than any such statements describing DTC's
book-entry system), the Indentures, the Trust Agreement, the Guarantees and
the Trust Guarantee Agreement and the Expense Agreement, and the statements
under "Hawaiian Electric Company, Inc. and Subsidiaries" relating to HECO
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 Underwriting Agreement has been duly authorized by all
necessary corporate action of and duly executed and delivered by XXXX on
behalf of itself and as depositor under the Trust Agreement; and the Trust
Preferred Securities have been duly executed and delivered by more than one
Administrative Trustee;
(xii) the Trust Agreement has been duly authorized by all necessary
corporate action of HECO and xxxx executed and delivered by XXXX and the
Administrative Trustees and, to such counsel's knowledge, has been duly
qualified under the Trust Indenture Act;
(xiii) the Trust Guarantee Agreement has been duly authorized by all
necessary corporate action of and duly executed and delivered by HECO and
constitutes a valid and binding instrument of HECO, enforceable against
HECO in accordance with its terms and, to such counsel's knowledge, has
been duly qualified under the Trust Indenture Act;
(xiv) each of the HECO Indenture and, with respect to the Subsidiary
Guarantees, the Subsidiary Indentures has been duly authorized by all
necessary corporate action of and duly executed and delivered by HECO and
constitutes a valid and binding instrument of HECO, enforceable against
HECO in accordance with its terms and, to such counsel's knowledge, has
been duly qualified under the Trust Indenture Act;
(xv) the Subsidiary Indenture to which each Subsidiary is a party has
been duly authorized by all necessary corporate action of and duly executed
and delivered by such Subsidiary and constitutes a valid and binding
instrument of such Subsidiary, enforceable against such Subsidiary in
accordance with its terms;
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(xvi) the HECO Debentures have been duly authorized by all necessary
corporate action of and duly executed by XXXX and, when authenticated in
the manner provided for in the HECO Indenture and delivered against payment
therefor by the Trust as described in the Prospectus, will constitute valid
and binding obligations of HECO, enforceable against HECO in accordance
with their terms, and will be entitled to the benefits of such Indenture;
(xvii) the Substituted HECO Debentures have been duly authorized by all
necessary corporate action of HECO and, if and when approved for issuance
by the PUC and then executed and authenticated in the manner provided for
in the HECO Indenture and delivered in exchange for the Subsidiary
Debentures as described in the Prospectus, will constitute valid and
binding obligations of HECO, enforceable against HECO in accordance with
their terms, and will be entitled to the benefits of the HECO Indenture;
(xviii) the Subsidiary Debentures issued by each Subsidiary have been
duly authorized by all necessary corporate action of and duly executed by
such Subsidiary and, when authenticated in the manner provided for in the
applicable Indenture and delivered against payment therefor by the Trust as
described in the Prospectus, will constitute valid and binding obligations
of such Subsidiary, enforceable against such Subsidiary in accordance with
their terms, and will be entitled to the benefits of such Indenture;
(xix) the Expense Agreement has been duly authorized by all necessary
corporate action of and duly executed and delivered by each Obligor and
constitutes a valid and binding instrument of each Obligor, enforceable
against such Obligor in accordance with its terms;
(xx) the execution and delivery by each of the Obligors and the Trust
of such of this Underwriting Agreement, the Securities, the Subsidiary
Debentures, the Indentures, the Trust Agreement, the Trust Guarantee
Agreement and the Expense Agreement to which it is a party did not, and the
consummation by such Obligor or the Trust of the transactions contemplated
hereby and thereby to be performed by it and the fulfillment of the terms
hereof and thereof will not result in a breach of any of the terms or
provisions of, or constitute a default under, any material indenture,
mortgage, deed of trust or other agreement or instrument to which such
Obligor or the Trust is a party and of which such counsel has knowledge, or
the Amended Articles of Incorporation, as amended, or By-Laws of such
Obligor or contravene or conflict with any order, rule or regulation known
to such counsel as applicable to such Obligor or the Trust of any court or
of any federal or state regulatory body or administrative agency or other
governmental body having jurisdiction over such Obligor or the Trust or any
of its properties, or any statute or constitutional provision of the State
of Hawaii applicable to such Obligor or the Trust, except that such counsel
need not express an opinion with respect to compliance with federal, state
or foreign securities or blue sky laws; and
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(xxi) those portions of the Registration Statement and the
Prospectus that are stated therein to have been made on such counsel's
authority (including such counsel's opinion set forth under "Certain
Federal Income Tax Consequences" in the Prospectus) have been reviewed by
such counsel and, as to matters of law and legal conclusions, are, subject
to the qualifications set forth therein, correct.
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, the laws of the State
of Hawaii and, subject to clause (B) below, the laws of the State of New York,
(B) such counsel may rely, 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 7(e) 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 upon request 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 Obligors (provided that copies of such certificates will be
furnished to Counsel for the Underwriters), (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 Obligors in such
litigation or proceedings (provided that copies of such opinions will be
furnished upon request to Counsel for the Underwriters), (F) for purposes of the
opinion expressed in paragraph (iii) 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 or with respect to the statements of eligibility on Form T-1 filed as
exhibits to the Registration Statement, (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 (xxi) above), (I) such
counsel may limit the matters set forth in paragraphs (xiii) through (xix) above
by the application of applicable bankruptcy, insolvency, fraudulent conveyance
or transfer, reorganization or other similar laws affecting creditors' rights
and of general equitable principles (regardless of whether enforceability is
considered in a proceeding in equity or at law) 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 Obligors 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 (iii) 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.
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reasonably acceptable to the Representatives and Counsel for the Underwriters.
References to the Registration Statement and the Prospectus in this Section 7(c)
shall include any amendments or supplements thereto at the Closing Date.
(d) At the Closing Date, the Representatives shall have received an
opinion of Xxxxxxxx, Xxxxxx & Xxxxxx, P.A., special Delaware counsel for HECO
and the Trust, dated the Closing Date, to the effect that:
(i) the Trust has been duly created and is validly existing in good
standing as a business trust under the Business 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 Business 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 Underwriting Agreement and the Trust Securities, (C) to
execute and deliver this Underwriting Agreement and (D) to consummate the
transactions contemplated by this Underwriting 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 HECO and the
Administrative Trustees, and is enforceable against HECO and the
Administrative Trustees, in accordance with its terms, except as limited by
bankruptcy, insolvency, moratorium, receivership, reorganization,
liquidation, fraudulent conveyance or transfer and other similar laws
relating to or affecting creditors' rights generally, principles of equity,
including applicable law relating to fiduciary duties (regardless of
whether considered in a proceeding in equity or at law), and the effect of
applicable public policy on the enforceability of provisions relating to
contribution or indemnification;
(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 paragraph (vi) below, fully paid and non-
assessable 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
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of replacement certificates for Trust Preferred Securities and (B) security
or indemnity in connection with requests of or directions to the Property
Trustee to exercise its rights and powers under the Trust Agreement);
(vii) under the Trust Agreement and the Business Trust Act, the
issuance of the Trust Securities is not subject to preemptive rights;
(viii) the issuance and sale by the Trust of the Trust Securities, the
execution, delivery and performance by the Trust of this Underwriting
Agreement, and the consummation of the transactions contemplated by this
Underwriting Agreement, do not violate (A) the Trust Certificate or the
Trust Agreement or (B) any applicable Delaware law, rule or regulation; and
(ix) under the Trust Agreement and the Business Trust Act, the
issuance and sale by the Trust of the Trust Securities and the execution
and delivery by the Trust of this Underwriting Agreement, and the
performance by the Trust of its obligations hereunder, have been duly
authorized by all necessary trust action on the part of, and, upon the due
execution and delivery of this Underwriting Agreement by HECO as depositor
under the Trust Agreement and the certificates for the Trust Preferred
Securities by more than one Administrative Trustee on behalf of the Trust,
and the countersignature of the Trust Preferred Securities by an authorized
officer of the Property Trustee in accordance with the Trust Agreement,
this Underwriting Agreement and the Trust Preferred Securities will have
been duly executed and delivered by the Trust.
In rendering such opinion, (A) 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 upon request to Counsel for the Underwriters), (B) such counsel may
rely, as to matters of fact, upon certificates and representations of the Trust
(provided that copies of such certificates will be furnished upon request to
Counsel for the Underwriters), (C) such counsel may state that it is expressing
an opinion only as to the laws of the State of Delaware and (D) such counsel may
include therein such other customary qualifications reasonably acceptable to the
Representatives and Counsel for the Underwriters. References to the Prospectus
in this Section 7(d) shall include any amendments or supplements thereto at the
Closing Date.
(e) At the Closing Date, the Representatives shall have received an
opinion of Counsel for the Underwriters, dated the Closing Date, with respect to
certain matters relating to the execution and delivery by HECO of this
Underwriting Agreement, the description of the Securities, the validity of the
Indentures and the HECO Securities, the Registration Statement and the
Prospectus, as amended or supplemented to the Closing Date, and such other
related matters as the Representatives may reasonably request.
(f) On the date hereof, the Representatives shall have received a
letter from KPMG Peat Marwick LLP, XXXX's independent certified public
accountants (the "Accountants"), dated the date hereof, to the effect that:
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(i) The Accountants are independent certified public accountants
with respect to HECO and the Subsidiaries within the meaning of the
Securities Act and the applicable rules and regulations of the Commission
thereunder;
(ii) In the opinion of the Accountants, the financial statements and
any supplementary financial information and schedules examined by them and
included or incorporated by reference in the Prospectus comply as to form
in all material respects with the applicable accounting requirements of the
Securities Act or the Exchange Act, as applicable, and the related rules
and regulations of the Commission thereunder; and, if applicable, the
Accountants have made a review in accordance with standards established by
the American Institute of Certified Public Accountants of the consolidated
interim financial statements, pro forma financial information or condensed
financial statements derived from audited financial statements of HECO and
the Subsidiaries for the periods specified in such letter, as indicated in
their reports thereon, copies of which have been furnished to the
Representatives;
(iii) In the opinion of the Accountants, the unaudited selected
financial information with respect to the consolidated results of
operations and financial position of HECO for the five most recent fiscal
years incorporated by reference from HECO's Current Report on Form 8-K
dated March __, 1997 in the Prospectus agrees with the corresponding
amounts (after restatement where applicable) in the audited consolidated
financial statements for the five such fiscal years that were included or
incorporated by reference in HECO's Annual Reports on Form 10-K and such
Form 8-K for such fiscal years, as applicable, to the extent that such
unaudited selected financial information was derived from such audited
financial statements;
(iv) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available interim
financial statements of HECO and the Subsidiaries, inspection of the minute
books of HECO and the Subsidiaries since the date of the latest audited
financial statements included or incorporated by reference in the
Prospectus, inquiries of officials of HECO and the Subsidiaries responsible
for financial and accounting matters and such other inquiries and
procedures as may be specified in such letter, nothing came to their
attention that caused the Accountants to believe that:
(A) the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included or incorporated by reference in HECO's Quarterly Reports on
Form 10-Q incorporated by reference in the Prospectus do not comply as
to form in all material respects with the applicable accounting
requirements of the Exchange Act as it applies to Form 10-Q and the
related rules and regulations of the Commission thereunder or are not
in conformity with generally accepted accounting principles applied on
a basis substantially consistent with the basis for the audited
consolidated statements of income, consolidated balance sheets and
consolidated statements of cash flows included or incorporated by
reference in the Prospectus;
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(B) any other unaudited income statement data and balance sheet
items included in the Prospectus do not agree with the corresponding
items in the unaudited consolidated financial statements from which
such data and items were derived, and any such unaudited data and
items were not determined on a basis substantially consistent with the
basis for the corresponding amounts in the audited consolidated
financial statements included or incorporated by reference in the
Prospectus;
(C) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the Prospectus do
not comply as to form in all material respects with the applicable
accounting requirements of the Securities Act and the rules and
regulations of the Commission thereunder or the pro forma adjustments
have not been properly applied to the historical amounts in the
compilation of those statements;
(D) as of a specified date not more than five business days prior
to the date of such letter, there have been any changes in the
consolidated capital stock or any increase in the consolidated long-
term debt of HECO and the Subsidiaries or any decreases in
consolidated net assets or other items specified by the
Representatives, or any increases in any items specified by the
Representatives, in each case as compared with the amounts shown in
the latest balance sheet included or incorporated by reference in the
Prospectus, except in each case for changes, increases or decreases
that the Prospectus discloses have occurred or may occur or that are
described in such letter; or
(E) for the period from the date of the latest financial
statements included or incorporated by reference in the Prospectus to
the specified date referred to in paragraph (D) above there were any
decreases in consolidated revenues or operating profit or the total
amount of consolidated net income or other items specified by the
Representatives, or any increases in any items specified by the
Representatives, in each case as compared with the comparable period
of the preceding year and with any other period of corresponding
length specified by the Representatives, except in each case for
increases or decreases that the Prospectus discloses have occurred or
may occur or that are described in such letter; and
(v) In addition to the examination referred to in their report or
reports included or incorporated by reference in the Prospectus and the
limited procedures, inspection of minute books, inquiries and other
procedures referred to in paragraphs (iii) and (iv) above, the Accountants
have carried out certain specified procedures, not constituting an
examination in accordance with generally accepted auditing standards, with
respect to certain amounts, percentages and financial information specified
by the Representatives that are derived from the general accounting records
of HECO and the Subsidiaries and that appear in the Prospectus (excluding
documents incorporated by reference) or in Part II of, or in exhibits and
schedules to, the Registration Statement specified by the Representatives
or in documents incorporated by reference in the Prospectus specified by
the Representatives, and have compared certain of such amounts,
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percentages and financial information with the accounting records of HECO
and the Subsidiaries and have found them to be in agreement.
References to the Registration Statement and the Prospectus in this Section 7(f)
shall include any amendments or supplements thereto at the Closing Date.
(g) At the Closing Date, the Representatives shall have received a
certificate, dated the Closing Date and signed by the President, by the
Financial Vice President and Treasurer or by any other Vice President of HECO,
as to (i) the accuracy of the representations and warranties of HECO contained
herein on behalf of each of the Obligors, (ii) the performance and compliance by
HECO with all agreements and conditions in this Underwriting Agreement to be
performed or complied with by HECO at or prior to the Closing Date and (iii) the
matters set forth in Sections 7(a), 7(b) and 7(m) hereof.
(h) At the Closing Date, the Representatives shall have received a
certificate, dated the Closing Date and signed by an authorized representative
of the Trust, as to (i) the accuracy of the representations and warranties of
the Trust contained herein and (ii) the performance and compliance by the Trust
with all agreements and conditions in this Underwriting Agreement to be
performed or complied with by the Trust at or prior to the Closing Date.
(i) At the Closing Date, the Representatives shall have received (i)
duly executed counterparts of the Trust Agreement, the Trust Guarantee
Agreement, the Expense Agreement and the Indentures, (ii) specimens of the
Debentures and of certificates for the Trust Common Securities and (iii) a duly
executed letter from the Subsidiaries and in a form reasonably satisfactory to
the Representatives, dated the Closing Date, to the effect that they agree
to be bound to the timely performance of certain of the obligations of the
Offerors under this Underwriting Agreement.
(j) At the Closing Date, the Representatives shall have received from
the Accountants a letter, dated the Closing Date, confirming, as of a date not
more than three business days prior to the Closing Date, the statements
contained in the letter delivered pursuant to Section 7(f) hereof.
(k) At the Closing Date, no Special Event (as defined in the Trust
Agreement) shall have occurred and be continuing.
(l) On or after the date hereof, there shall not have occurred any of
the following: (i) a suspension or material limitation in trading in securities
generally on the NYSE; (ii) a suspension or material limitation in trading of
the Trust Preferred Securities or of any securities of HECO on the NYSE; (iii) a
general moratorium on commercial banking activities declared by either Federal
authorities or authorities in the State of Hawaii or New York; (iv) the outbreak
or escalation of hostilities involving the United States or the declaration by
the United States of a national emergency or war, if the effect of any such
event in this clause (iv) in the judgment of the Representatives makes it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Trust Preferred Securities on the terms and in the manner contemplated in
the Prospectus; or (v) the occurrence of any material adverse change in the
existing financial, political or economic conditions in the United States or
elsewhere that, in the judgment of the
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Representatives, would materially and adversely affect the financial markets or
the market for the Trust Preferred Securities and other securities similar to
the Trust Preferred Securities or the Debentures.
(m) (i) Neither HECO nor either of the Subsidiaries shall have
sustained since the date of the latest audited financial statements included or
incorporated by reference in 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, otherwise than as set forth or contemplated in the Prospectus and
(ii) since the respective dates as of which information is given in the
Prospectus, there shall not have been any change in the capital stock or long-
term debt of HECO or any of the Subsidiaries or any change, or any development
involving a prospective change, in or affecting the general affairs, management,
financial position, stockholder's equity or results of operations of HECO and
the Subsidiaries, otherwise than as set forth or contemplated in the Prospectus,
the effect of which, in any such case described in clause (i) or (ii) above, is
in the judgment of the Representatives so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Trust Preferred Securities on the terms and in the manner contemplated in
the Prospectus.
(n) On or after the date hereof, (i) no downgrading shall have
occurred in the rating accorded any of HECO's debt securities by any "nationally
recognized statistical rating organization," as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the Securities Act and (ii) no
such organization shall have publicly announced that it has under surveillance
or review, with possible negative implications, its rating of any of HECO's debt
securities.
(o) On or prior to the Closing Date, the Representatives shall have
received from the Offerors evidence reasonably satisfactory to Xxxxxxx, Xxxxx &
Co. that Xxxxx'x Investors Service, Inc. and Standard & Poor's Ratings Service
have publicly assigned to the Trust Preferred Securities ratings of ___ and ___,
respectively, which ratings shall be in full force and effect on the Closing
Date.
(p) On or prior to the Closing Date, (i) the Trust Preferred
Securities shall have been duly listed, subject to notice of issuance, on the
NYSE and (ii) HECO's registration statement on Form 8-A relating to the Trust
Preferred Securities shall have become effective under the Exchange Act.
(q) All legal matters in connection with the issuance and sale of the
Trust Preferred Securities shall be satisfactory in form and substance to
Counsel for the Underwriters.
(r) The Offerors will furnish the Underwriters with additional
conformed copies of such opinions, certificates, letters and documents as may be
reasonably requested.
If any of the conditions specified in this Section 7 shall not have
been fulfilled, this Underwriting Agreement may be terminated by the
Underwriters upon notice thereof to the Offerors. Any such termination shall be
without liability of any party to any other party, except as otherwise provided
in Sections 6(g) and Section 10 hereof.
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SECTION 8. Condition to the Obligations of the Offerors. The
--------------------------------------------
obligations of the Offerors hereunder shall be subject to the condition that no
stop order suspending the effectiveness of the Registration Statement shall be
in effect at or prior to the Closing Date, and no proceedings for that purpose
shall be pending before, or threatened by, the Commission on the Closing Date.
In case such condition shall not have been fulfilled, this Underwriting
Agreement may be terminated by the Offerors upon notice thereof to the
Representatives. Any such termination shall be without liability of any party
to any other party, except as otherwise provided in Sections 6(g) and 10 hereof.
SECTION 9. Indemnification and Contribution.
--------------------------------
(a) The Offerors jointly and severally will indemnify and hold
harmless each Underwriter, and each person, if any, who controls each
Underwriter within the meaning of Section 15 of the Securities Act, from and
against any and all losses, claims, damages or liabilities, joint or several, to
which such Underwriter may become subject, under the Securities 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, as
amended, or 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, or arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in any Preliminary Prospectus or
in the Prospectus, as each may be amended or supplemented, or any omission or
alleged omission to state therein 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, and will reimburse such Underwriter for any legal or other
expenses reasonably incurred by each Underwriter in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that HECO 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 any such untrue statement or omission or alleged untrue statement or
omission made 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 9(a) with respect to any Preliminary
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 Trust Preferred
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 Securities Act and the rules and
regulations thereunder, and the untrue statement or alleged untrue statement or
omission or alleged omission of a material fact contained in such Preliminary
Prospectus was corrected in the Prospectus, provided that the Offerors have
delivered the
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Prospectus to the several Underwriters in requisite quantity on a timely basis
to permit such delivery or sending.
(b) Each Underwriter will indemnify and hold harmless the Offerors,
their respective directors and officers who signed the Registration Statement
and each person, if any, who controls the Offerors within the meaning of Section
15 of the Securities Act from and against any and all losses, claims, damages or
liabilities to which HECO may become subject, under the Securities 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, as
amended, or 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, or arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in any Preliminary Prospectus or
in the Prospectus, as each may be amended or supplemented, or any omission or
alleged omission to state therein 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, in each case to the extent, but only to the extent, that
any such loss, claim, damage or liability arises out of or is based upon any
such untrue statement or omission or alleged untrue statement or omission made
in reliance upon and in conformity with the Underwriter Information, and will
reimburse HECO for any legal or other expenses reasonably incurred by Company in
connection with investigating or defending any such action or claim as such
expenses are incurred.
(c) Promptly after receipt by an indemnified party under Section 9(a)
or 9(b) above 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 9(a) or 9(b), notify such indemnifying party in
writing of the commencement thereof; but the failure to so notify such
indemnifying party shall neither relieve such indemnifying party from any
liability that it may have to the indemnified party that failed to give such
notice unless and only to the extent that such indemnifying party has been
prejudiced by such failure nor relieve it from any liability that it may have to
such indemnified party otherwise than under this Section 9. In case any such
action shall be brought against any such indemnified party and it shall notify
such indemnifying party of the commencement thereof, such indemnifying party
shall be entitled to participate therein and, to the extent that it shall wish,
jointly with any other indemnifying parties similarly notified, to assume the
defense thereof, with counsel satisfactory to such indemnified party (who shall
not, except with the consent of such indemnified party, be counsel to such
indemnifying party), and, after notice from such indemnifying party to such
indemnified party of its election to so assume the defense thereof, such
indemnifying party shall not be liable to such indemnified party under Section
9(a) or 9(b) 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 such
indemnifying party shall, without the written consent of such indemnified party,
effect the settlement or compromise of, or consent to the entry of any judgment
with respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not such
indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (i) includes an unconditional
release of such indemnified party from all liability arising out of such action
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) If the indemnification provided for in Section 9(a) or 9(b) hereof
is unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, claims, damages or liabilities (or actions in respect
thereof) described 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 XXXX
on the one hand and the Underwriters on the other from the offering of the Trust
Preferred Securities. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if such indemnified
party failed to give the notice required under Section 9(c) hereof and such
indemnifying party was prejudiced by such failure, then each such indemnified
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 HECO 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 XXXX 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 offering (before
deducting expenses) received by the Trust bear to the total underwriting
commission received by the Underwriters, in each case as set forth in the table
on the cover page of the Prospectus. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by HECO on the one hand or the Underwriters on
the other and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. XXXX and the
Underwriters agree that it would not be just and equitable if contribution
pursuant to this Section 9(d) were determined by pro rata allocation (even if
the Underwriters were treated as one entity for such purpose) or any other
method of allocation that does not take account of the equitable considerations
referred to above in this Section 9(d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) refereed to above in this Section 9(d) 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 9(d), no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the Trust Preferred Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages that such Underwriter has otherwise been required to pay by reason of
such untrue or allege untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. For purposes of this
paragraph 9(d), each person, if any, who controls an Underwriter within the
meaning of Section 15 of the Securities Act shall have the same rights to
contribution as such Underwriter, and each person, if any, who controls either
Offerors within the meaning of Section 15 of the Securities Act and each officer
or director of such Offeror shall have the same rights to contribution as such
Offeror, as the case may be, subject in each case to Sections 9(a) and 9(b)
hereof.
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SECTION 10. Survival of Certain Representations and Obligations.
---------------------------------------------------
Any other provision of this Underwriting Agreement to the contrary
notwithstanding, (a) the indemnity and contribution agreements contained in
Section 9 hereof, and the representations and warranties and other agreements of
the Offerors contained herein, shall remain operative and in full force and
effect regardless of (i) any investigation made by or on behalf of any
Underwriter or by or on behalf of the Offerors or its directors or officers, or
any of the other persons referred to in Section 9 hereof and (ii) acceptance of
and payment for the Trust Preferred Securities and (b) the indemnity and
contribution agreements contained in Section 9 hereof shall remain operative and
in full force and effect regardless of any termination of this Underwriting
Agreement.
SECTION 11. Default of Underwriters.
-----------------------
(a) If any Underwriter shall default in its obligation to purchase the
number of Trust Preferred Securities that it has agreed to purchase hereunder,
the non-defaulting Underwriters may in their discretion arrange for such non-
defaulting Underwriters or another party or other parties to purchase such
number of Trust Preferred Securities on the terms contained herein. If within
twenty-four hours after such default by any Underwriter such non-defaulting
Underwriters do not arrange for the purchase of such number of Trust Preferred
Securities, then the Offerors shall be entitled to a further period of twenty-
four hours within which to, but shall not be required to, procure another party
or other parties satisfactory to such non-defaulting Underwriters to purchase
such Securities on such terms. In the event that, within the respective periods
prescribed above, such non-defaulting Underwriters notify the Offerors that they
have so arranged for the purchase of such number of Trust Preferred Securities,
or the Offerors notify the Underwriters that it has so arranged for the purchase
of such number of Trust Preferred Securities, then such non-defaulting
Underwriters or the Offerors shall have the right to postpone the Closing Date,
for a period of not more than five business days, in order to effect whatever
changes may thereby be made necessary in the Registration Statement or the
Prospectus, or in any other documents or arrangements, and the Offerors agree to
file promptly any amendments to the Registration Statement or the Prospectus
that in the opinion of such non-defaulting Underwriters may thereby be made
necessary.
(b) If, after giving effect to any arrangements for the purchase of
Trust Preferred Securities of a defaulting Underwriter or Underwriters by the
non-defaulting Underwriter or Underwriters and the Offerors as provided in
Section 11(a) hereof, the aggregate number of Trust Preferred Securities that
remains unpurchased does not exceed one-eleventh of the aggregate number of all
the Trust Preferred Securities to be purchased hereunder, then the Offerors
shall have the right to require each non-defaulting Underwriter to purchase the
number of Trust Preferred Securities that such Underwriter agreed to purchase
hereunder and, in addition, to require each non-defaulting Underwriter to
purchase its pro rata share (based on the number of Trust Preferred Securities
that such Underwriter agreed to purchase hereunder) of the Trust Preferred
Securities of such defaulting Underwriter or Underwriters for which such
arrangements have not been made, but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
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(c) If, after giving effect to any arrangements for the purchase of
the Trust Preferred Securities of a defaulting Underwriter or Underwriters by
the non-defaulting Underwriter or Underwriters and the Offerors as provided in
Section 11(a) hereof, the aggregate number of Trust Preferred Securities that
remains unpurchased exceeds one-eleventh of the aggregate number of all the
Trust Preferred Securities to be purchased hereunder, or if the Offerors shall
not exercise the right provided in Section 11(b) hereof to require such non-
defaulting Underwriters to purchase Trust Preferred Securities of a defaulting
Underwriter or Underwriters, then this Underwriting Agreement shall thereupon
terminate, without liability on the part of any such non-defaulting Underwriter
or either of the Offerors, except for the indemnity agreements in Section 9
hereof, but nothing herein shall relieve a defaulting Underwriter from liability
for its default.
SECTION 12. Miscellaneous. THE RIGHTS AND DUTIES OF THE PARTIES TO
-------------
THIS UNDERWRITING AGREEMENT SHALL, PURSUANT TO NEW YORK GENERAL OBLIGATIONS LAW
SECTION 5-1401, BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK. This
Underwriting Agreement shall become effective when a fully executed copy thereof
is delivered to the Offerors and to the Representatives. This Underwriting
Agreement may be executed in any number of separate counterparts, each of which,
when so executed and delivered, shall be deemed to be an original and all of
which, taken together, shall constitute but one and the same agreement. This
Underwriting Agreement shall inure to the benefit of each of the Offerors, the
Underwriters and, with respect to the provisions of Section 9 hereof, each
director, officer and other person referred to in Section 9 hereof, and their
respective successors. Should any part of this Underwriting Agreement for any
reason be declared invalid, such declaration shall not affect the validity of
any remaining portion, which remaining portion shall remain in full force and
effect as if this Underwriting Agreement had been executed with the invalid
portion thereof eliminated. Nothing herein is intended or shall be construed to
give to any other person, firm or corporation any legal or equitable right,
remedy or claim under or in respect of any provision in this Underwriting
Agreement. The term "successor" as used in this Underwriting Agreement shall
not include any purchaser, as such purchaser, of any Trust Preferred Securities
from the Underwriters.
SECTION 13. Notices. All communications hereunder shall be in
-------
writing and, if to the Underwriters, shall be mailed or delivered to Xxxxxxx,
Xxxxx & Co. at the address set forth at the beginning of this Underwriting
Agreement (to the attention of its General Counsel) or, if to the Offerors,
shall be mailed or delivered to it at P.O. Box 2750, Honolulu, Hawaii 96840-
0001, Attention: Financial Vice President and Treasurer.
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If the foregoing is in accordance with your understanding, please sign
and return to us counterparts of this Underwriting Agreement, and upon
acceptance hereof by you, on behalf of each of the Underwriters, this
Underwriting Agreement and such acceptance hereof shall constitute a binding
agreement among each of the Underwriters, HECO and the Trust. It is understood
that your acceptance of this Underwriting Agreement on behalf of each of the
Underwriters is or will be pursuant to the authority set forth in a form of
Agreement among Underwriters, the form of which shall be submitted to HECO and
the Trust for examination upon request, but without warranty on the part of the
Representatives as to the authority of the signers thereof.
Very truly yours,
Hawaiian Electric Company, Inc.
By: _________________________________________
Name:
Title:
By: _________________________________________
Name:
Title:
HECO Capital Trust I
By: Hawaiian Electric Company, Inc.,
as Depositor
By: _________________________________________
Name:
Title:
By: _________________________________________
Name:
Title:
Accepted as of the date first above written:
Xxxxxxx, Xxxxx & Co.
Xxxx Xxxxxx Xxxxxxxx Inc.
As representatives of the other several
Underwriters named in Schedule I hereto
By: ____________________________________________
(Xxxxxxx, Xxxxx & Co.)
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SCHEDULE I
----------
HECO Capital Trust I
__% Cumulative Quarterly Income Preferred Securities, Series 1997
Number of
Underwriter Trust Preferred Securities
----------- --------------------------
Xxxxxxx, Xxxxx & Co.
Xxxx Xxxxxx Xxxxxxxx Inc.
_________
Total 2,000,000
=========
