Exhibit 4(b)(iii)
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TRUST AGREEMENT
OF
HAWAIIAN ELECTRIC INDUSTRIES CAPITAL TRUST III
THIS TRUST AGREEMENT is made as of December 19, 1996 (this "Trust
Agreement"), by and among Hawaiian Electric Industries, Inc., a Hawaii
corporation, as Depositor (the "Depositor"), The Bank of New York (the "Property
Trustee"), The Bank of New York (Delaware), a Delaware banking corporation, as
trustee (the "Delaware Trustee"), and Xxxxxx X. Xxxxxx, Xxxxxx X. Xxxxxxx and
Xxxxxxxxx X. Xxx, as trustees (collectively, together with the Property Trustee
and the Delaware Trustee, the "Trustees"). The Depositor and the Trustees
hereby agree as follows:
1. The trust created hereby shall be known as "Hawaiian Electric
Industries Capital Trust III" (the "Trust"), in which name the Trustees or the
Depositor, to the extent provided herein, may conduct the business of the Trust,
make and execute contracts, and xxx and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets over
to the Trust the sum of $10. Such amount shall constitute the initial trust
estate. It is the intention of the parties hereto that the Trust created hereby
constitute a business trust under Chapter 38 of Title 12 of the Delaware Code,
12 Del. C. (S)3801, et seq. (the "Business Trust Act"), and that this document
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constitute the governing instrument of the Trust. The Trustees are hereby
authorized and directed to execute and file a certificate of trust with the
Delaware Secretary of State in such form as the Trustees may approve.
3. The Depositor and the Trustees will enter into an amended and
restated Trust Agreement or Declaration satisfactory to each such party and
substantially in the form to be included as an exhibit to the Registration
Statement on Form S-3 (the "1933 Act Registration Statement") referred to below,
or in such other form as the Trustees and the Depositor may approve, to provide
for the contemplated operation of the Trust created hereby and the issuance of
the Preferred Securities and Common Securities referred to therein. Prior to the
execution and delivery of such amended and restated Trust Agreement or
Declaration, the Trustees shall not have any duty or obligation hereunder or
with respect of the trust estate, except as otherwise required by applicable law
or as may be necessary to obtain prior to such execution and delivery any
licenses, consents or approvals required by applicable law or otherwise.
Notwithstanding the foregoing, the Trustees may take all actions deemed proper
as are necessary to effect the transactions contemplated herein.
4. The Depositor, as the sponsor of the Trust, is hereby authorized
(i) to file with the Securities and Exchange
Commission (the "Commission") and to execute, in the case of the 1933 Act
Registration Statement and 1934 Act Registration Statement (as herein defined),
on behalf of the Trust, (a) the 1933 Act Registration Statement, including pre-
effective or post-effective amendments to such Registration Statement, relating
to the registration under the Securities Act of 1933, as amended (the "1933
Act"), of the Preferred Securities of the Trust, (b) any preliminary prospectus
or prospectus supplement thereto relating to the Preferred Securities required
to be filed under the 1933 Act, and (c) a Registration Statement on Form 8-A or
other appropriate form (the "1934 Act Registration Statement") (including all
pre-effective and post-effective amendments thereto) relating to the
registration of the Preferred Securities of the Trust under the Securities
Exchange Act of 1934, as amended; (ii) to file with the New York Stock Exchange
or other exchange, and execute on behalf of the Trust a listing application and
all other applications, statements, certificates, agreements and other
instruments as shall be necessary or desirable to cause the Preferred Securities
to be listed on the New York Stock Exchange or such other exchange; (iii) to
file and execute on behalf of the Trust such applications, reports, surety
bonds, irrevocable consents, appointments of attorney for service of process and
other papers and documents as shall be necessary or desirable to register the
Preferred Securities under the securities or "Blue Sky" laws of such
jurisdictions as the Depositor, on behalf of the Trust, may deem necessary or
desirable; and (iv) to execute, deliver and perform on behalf of the Trust an
underwriting agreement with the Depositor and the underwriter or underwriters of
the Preferred Securities of the Trust and an agreement of limited partnership of
HEI Preferred Funding, LP, as the same may be amended or restated from time to
time. In the event that any filing referred to in clauses (i)-(iii) above is
required by the rules and regulations of the Commission, the New York Stock
Exchange or other exchange, or state securities or Blue Sky laws to be executed
on behalf of the Trust by the Trustees, the Trustees, in their capacities as
trustees of the Trust, are hereby authorized and directed to join in any such
filing and to execute on behalf of the Trust any and all of the foregoing, it
being understood that the Trustees, in their capacities as trustees of the
Trust, shall not be required to join any such filing or execute on behalf of the
Trust any such document unless required by the rules and regulations of the
Commission, the New York Stock Exchange or other exchange, or state securities
or Blue Sky laws. In connection with all of the foregoing, the Trustees, solely
in their capacities as trustees of the Trust, and the Depositor hereby
constitute and appoint any one or more of Xxxxxx X. Xxxxxx, Xxxxxx X. Xxxxxxx,
Xxxxxxxxx X. Xxx, Xxxxxx X. Xxxxxx, Xxxxx X. Xxxxx and Xxxxxxx X. Xxx, with
power in any one of them to act singly, as his, her or its, as the case may be,
true and lawful attorney-in-fact and agent, with full power of substitution and
resubstitution for the Depositor or in the Depositor's name, place and stead, in
any and all capacities,
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to sign any and all amendments (including all pre-effective and post-effective
amendments) to the 1933 Act Registration Statement and the 1934 Act Registration
Statement and to file the same, with all exhibits thereto, and any other
documents in connection therewith, with the Commission, granting unto said
attorney-in-fact and agent full power and authority to do and perform each and
every act and thing requisite and necessary to be done in connection therewith,
as fully to all intents and purposes as the Depositor might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and agent
or his respective substitute or substitutes, shall do or cause to be done by
virtue hereof.
5. This Trust Agreement may be executed in one or more counterparts.
6. The number of trustees of the Trust initially shall be five (5)
and thereafter the number of trustees of the Trust shall be such number as shall
be fixed from time to time by a written instrument signed by the Depositor which
may increase or decrease the number of trustees of the Trust; provided, however,
that to the extent required by the Business Trust Act, one trustee of the Trust
shall either be a natural person which is a resident of the State of Delaware
or, if not a natural person, an entity which has its principal place of business
in the State of Delaware. The Delaware Trustee represents and warrants that it
has and will retain its principal place of business in the State of Delaware.
Subject to the foregoing, the Depositor is entitled to appoint or remove without
cause any trustee of the Trust at any time. Any trustee of the Trust may resign
upon thirty days' prior notice to the Depositor.
7. This Trust Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to conflict
of laws principles).
IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed as of the day and year first above written.
HAWAIIAN ELECTRIC INDUSTRIES, INC.
as Depositor
By: /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx,
Financial Vice President and
Chief Financial Officer
By: /s/ Xxxxxxxxx X. Xxx
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Xxxxxxxxx X. Xxx,
Treasurer
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THE BANK OF NEW YORK, not in its
individual capacity but solely
as trustee of the Trust
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: Assistant Treasurer
THE BANK OF NEW YORK (DELAWARE), not
in its individual capacity but
solely as trustee of the Trust
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title: Assistant Treasurer
Xxxxxx X. Xxxxxx, not in his
individual capacity, but
solely as trustee of the Trust
/s/ Xxxxxx X. Xxxxxx
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Signature
Xxxxxx X. Xxxxxxx, not in his
individual capacity, but
solely as trustee of the Trust
/s/ Xxxxxx X. Xxxxxxx
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Signature
Xxxxxxxxx X. Xxx, not in her
individual capacity, but
solely as trustee of the Trust
/s/ Xxxxxxxxx X. Xxx
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Signature
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