EXHIBIT 4(i)
EXPENSE AGREEMENT
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AGREEMENT dated as of December 1, 1998, between Hawaiian Electric
Company, Inc., a Hawaii corporation ("HECO"), Maui Electric Company, Limited, a
Hawaii corporation ("MECO"), Hawaii Electric Light Company, Inc., a Hawaii
corporation ("HELCO") and HECO Capital Trust I, a Delaware statutory business
trust (the "Trust").
WHEREAS, the Trust intends to issue and sell its Common Securities
(the "Common Securities") to HECO and to issue and sell in a registered public
offering its ____% Cumulative Quarterly Income Preferred Securities, Series
1998, (the "Trust Preferred Securities") with such powers, preferences and
special rights and restrictions as are set forth in the Amended and Restated
Trust Agreement of the Trust dated as of December 1, 1998, as the same may be
amended from time to time (the "Trust Agreement");
WHEREAS, HECO will own all of the Common Securities of the Trust, will
issue and sell its ____% Junior Subordinated Deferrable Interest Debentures,
Series 1998 (the "HECO Debentures") to the Trust and will fully, irrevocably and
unconditionally guarantee the obligations of MECO and HELCO under their
respective ____% Junior Subordinated Deferrable Interest Debentures, Series 1998
(together with the HECO Debentures, the "Debentures"), which Debentures are to
be sold by MECO and HELCO to the Trust;
NOW, THEREFORE, in consideration of the purchase of the Trust
Preferred Securities by each holder, which purchase HECO, MECO and HELCO hereby
agree shall benefit each of them and which purchase HECO, MECO and HELCO
acknowledge will be made in reliance upon the execution and delivery of this
Agreement, HECO (including in its capacity as holder of the Common Securities),
MECO and HELCO and the Trust, hereby agree as follows:
ARTICLE I
Section 1.1. Agreement by HECO, MECO and HELCO to
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Pay Pro Rata Share of Expenses.
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Subject to the terms and conditions hereof, HECO, MECO and HELCO
hereby agree for the benefit of each person or entity to whom the Trust is now
or hereafter becomes indebted or liable (the "Beneficiaries") to pay, when and
as due, each
of their respective Pro Rata Shares of any and all Obligations (as hereinafter
defined) to such Beneficiaries. "Pro Rata Share" means the proportionate share
of the Obligations of each of HECO, MECO and HELCO based on the aggregate
principal amount of each of their respective Debentures held by the Trust. As
used herein, "Obligations" means any indebtedness, expenses or liabilities of
the Trust, other than obligations of the Trust to pay to holders of any Trust
Preferred Securities the amounts due such holders pursuant to the terms of the
Trust Preferred Securities. This Agreement is intended to be for the benefit of,
and to be enforceable by, all such Beneficiaries, whether or not such
Beneficiaries have received notice hereof.
Section 1.2. HECO Guarantee.
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HECO fully, irrevocably and unconditionally guarantees the payment in
full by each of MECO and HELCO of their respective Pro Rata Shares of the
Obligations (the "Guarantee"), regardless of any defense, right of setoff or
counterclaim that HECO may have or assert. HECO hereby waives notice of
acceptance of the Guarantee and of any liability to which it applies or may
apply, presentment, demand for payment, any right to require a proceeding first
against MECO or HELCO or any other person, firm or corporation before proceeding
against HECO, protest, notice of nonpayment or dishonor, notice of redemption,
and all other notices and demands. The obligations of HECO under the Guarantee
shall in no way be affected or impaired by reason of the happening from time to
time of any of (i) the release or waiver, by operation of law or otherwise, of
the performance or observance by MECO or HELCO of any obligation to be performed
or observed by it under this Agreement, (ii) any failure, omission, delay or
lack of diligence on the part of MECO or HELCO, (iii) the voluntary or
involuntary liquidation, dissolution, receivership, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization, or other similar
proceedings affecting MECO or HELCO or (iv) any other circumstance whatsoever
that might otherwise constitute a legal or equitable discharge or defense of a
guarantor, it being the intent of HECO that its obligations under the Guarantee
shall be irrevocable, absolute and unconditional under any and all circumstances
(and there shall be no obligation of any person, firm or corporation to give
notice to, or obtain consent of, HECO with respect to the happening of any of
the foregoing). The Guarantee constitutes a guarantee of performance and payment
and not collection. HECO acknowledges that its obligations under the Guarantee
are independent of the obligations of MECO or HELCO under this Agreement, and
that HECO shall be liable as principal and debtor under the Guarantee
notwithstanding the occurrence of any event referred to above.
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Section 1.3. Term of Agreement.
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This Agreement shall terminate and be of no further force and effect
upon the later of (a) the date on which full payment has been made of all
amounts payable to all holders of all the Trust Preferred Securities (whether
upon redemption, liquidation, exchange or otherwise) and (b) the date on which
there are no Beneficiaries remaining; provided, however, that this Agreement
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shall continue to be effective or shall be reinstated, as the case may be, if at
any time any holder of Trust Preferred Securities or any Beneficiary must
restore payment of any sums paid under the Trust Preferred Securities, under any
Obligation, under the Trust Guarantee Agreement dated the date hereof by HECO
and The Bank of New York, as trust guarantee trustee, or under this Agreement
for any reason whatsoever. This Agreement is continuing, irrevocable,
unconditional and absolute.
Section 1.4. Waiver of Notice.
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HECO, MECO and HELCO each hereby waives notice of acceptance of this
Agreement and of any Obligation to which it applies or may apply, and HECO, MECO
and HELCO each hereby waives presentment, demand for payment, protest, notice of
nonpayment, notice of dishonor, notice of redemption and all other notices and
demands.
Section 1.5. No Impairment.
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The obligations, covenants, agreements and duties of HECO, MECO and
HELCO under this Agreement shall in no way be affected or impaired by reason of
the happening from time to time of any of the following:
(a) the extension of time for the payment by the
Trust of all or any portion of the Obligations or for the performance of
any other obligation under, arising out of, or in connection with, the
Obligations;
(b) any failure, omission, delay or lack of diligence on the part of
the Beneficiaries to enforce, assert or exercise any right, privilege,
power or remedy conferred on the Beneficiaries with respect to the
Obligations or any action on the part of the Trust granting indulgence or
extension of any kind;
(c) the voluntary or involuntary liquidation, dissolution, sale of
any collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or
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readjustment of debt of, or other similar proceedings affecting, the Trust
or any of the assets of the Trust;
(d) the release or waiver, by operation of law or otherwise, of the
performance or observance by any Beneficiary of any express or implied
agreement, covenant, term or condition to be performed or observed
hereunder by any of HECO, HELCO or MECO, or any discharge, disallowance,
invalidity, illegality, voidness or other unenforceability thereof;
(e) any invalidity of, or defect or deficiency in, the Debentures;
(f) the settlement or compromise of any Obligation guaranteed hereby
or hereby incurred;
(g) any termination of or change in any relationship between HECO,
HELCO and MECO, including any resulting from a change in the ownership of
any of such companies; or
(h) to the extent permitted by law, any other circumstance whatsoever
that might otherwise constitute a legal or equitable discharge or defense
of a party to this Agreement, it being the intent of this Section 1.5 that
the Obligations shall be absolute and unconditional under any and all
circumstances.
There shall be no obligation of the Beneficiaries to give notice to, or obtain
the consent of, HECO, MECO or HELCO with respect to the happening of any of the
foregoing.
Section 1.6. Enforcement.
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A Beneficiary may enforce this Agreement directly against HECO, MECO
and HELCO, jointly and severally, and HECO, MECO and HELCO each waives any right
or remedy to require that any action be brought against the Trust or any other
person or entity before proceeding against HECO, MECO or HELCO.
ARTICLE II
Section 2.1. Binding Effect.
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This Agreement shall bind the successors, assigns, receivers, trustees
and representatives of each of HECO, MECO and HELCO and shall inure to the
benefit of the Beneficiaries.
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Section 2.2. Amendment.
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So long as there remains any Beneficiary or any Trust Preferred
Securities are outstanding, this Agreement shall not be modified or amended in
any manner adverse to such Beneficiary or to the holders of the Trust Preferred
Securities.
Section 2.3. Notices.
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Any notice, request or other communication required or permitted to be
given hereunder shall be given in writing by delivering the same against receipt
therefor by facsimile transmission (confirmed by mail), or by registered or
certified mail, addressed as follows (and if so given, shall be deemed given
when mailed):
If to the Trust:
HECO Capital Trust II
x/x Xxx Xxxx xx Xxx Xxxx
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Corporate Trust Trustee
Administration
If to HECO, MECO or HELCO:
Hawaiian Electric Company, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Treasurer
Section 2.4. Governing Laws.
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This Agreement shall be governed by and construed and interpreted in
accordance with the laws of the State of New York (without regard to conflict of
laws principles).
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THIS AGREEMENT is executed as of the day and year first above written.
HAWAIIAN ELECTRIC COMPANY, INC.
By:
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Xxxx X. Xxxx
Financial Vice President
and Treasurer
By:
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Xxxxx Xxx Xxxxxx
Assistant Treasurer
MAUI ELECTRIC COMPANY, LIMITED
By:
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Xxxx X. Xxxx
Financial Vice President
and Treasurer
By:
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Xxxxx Xxx Xxxxxx
Assistant Treasurer
HAWAII ELECTRIC LIGHT COMPANY, INC.
By:
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Xxxx X. Xxxx
Financial Vice President
and Treasurer
By:
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Xxxxx Xxx Xxxxxx
Assistant Treasurer
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HECO CAPITAL TRUST II
By:
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T. Xxxxxxx Xxx, not in his
individual capacity, but solely as
Administrative Trustee
By:
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Xxxx X. Xxxx, not in his individual
capacity, but solely as
Administrative Trustee
By:
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Xxxxx Xxx Xxxxxx, not in her
individual capacity, but solely as
Administrative Trustee
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