EXHIBIT 4(v)
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TRUST PREFERRED SECURITIES GUARANTEE AGREEMENT
HAWAIIAN ELECTRIC INDUSTRIES CAPITAL TRUST II
DATED AS OF ________ __, 200_
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation............................................... 1
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application............................................. 4
SECTION 2.2 Lists of Holders of Securities............................................... 4
SECTION 2.3 Reports by the Trust Guarantee Trustee....................................... 5
SECTION 2.4 Periodic Reports to the Trust Guarantee Trustee.............................. 5
SECTION 2.5 Evidence of Compliance with Conditions Precedent............................. 5
SECTION 2.6 Events of Default; Waiver.................................................... 5
SECTION 2.7 Event of Default; Notice..................................................... 5
SECTION 2.8 Conflicting Interests........................................................ 6
ARTICLE III
POWERS, DUTIES AND RIGHTS OF THE TRUST GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Trust Guarantee Trustee............................. 6
SECTION 3.2 Certain Rights of the Trust Guarantee Trustee................................ 7
SECTION 3.3 Not Responsible for Recitals or Issuance of the Trust Guarantee.............. 9
ARTICLE IV
THE TRUST GUARANTEE TRUSTEE
SECTION 4.1 The Trust Guarantee Trustee; Eligibility..................................... 9
SECTION 4.2 Appointment, Removal and Resignation of the Trust Guarantee Trustee.......... 10
SECTION 4.3 Successor to the Trust Guarantee Trustee by Merger, Consolidation or
Succession to Business....................................................... 11
ARTICLE V
THE TRUST GUARANTEE
SECTION 5.1 Guarantee.................................................................... 11
SECTION 5.2 Waiver of Notice and Demand.................................................. 11
SECTION 5.3 Obligations Not Affected..................................................... 11
SECTION 5.4 Rights of Holders............................................................ 12
SECTION 5.5 Guarantee of Payment......................................................... 13
(i)
SECTION 5.6 Subrogation.................................................................. 13
SECTION 5.7 Independent Obligations...................................................... 13
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 Limitation of Transactions................................................... 13
SECTION 6.2 Ranking...................................................................... 14
ARTICLE VII
TERMINATION
SECTION 7.1 Termination.................................................................. 14
ARTICLE VIII
EXCULPATION AND INDEMNIFICATION
SECTION 8.1 Exculpation.................................................................. 14
SECTION 8.2 Indemnification.............................................................. 15
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Successors and Assigns....................................................... 15
SECTION 9.2 Amendments and Assignment.................................................... 15
SECTION 9.3 Merger of the Guarantor...................................................... 16
SECTION 9.4 Notices...................................................................... 16
SECTION 9.5 Benefit...................................................................... 17
SECTION 9.6 Governing Law................................................................ 17
(ii)
CROSS-REFERENCE TABLE*
Section of Section of
Trust Indenture Act Guarantee
of 1939, as amended Agreement
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310(a) .................................................................................... 4.1(a)
310(b) .................................................................................... 2.8, 4.1(c)
310(c) .................................................................................... Inapplicable
311(a) .................................................................................... 2.2(b)
311(b) .................................................................................... 2.2(b)
311(c) .................................................................................... Inapplicable
312(a) .................................................................................... 2.2(a)
312(b) .................................................................................... 2.2(b)
313 ....................................................................................... 2.3
314(a) .................................................................................... 2.4
314(b) .................................................................................... Inapplicable
314(c) .................................................................................... 2.5
314(d) .................................................................................... Inapplicable
314(e) .................................................................................... 1.1, 2.5, 3.2
314(f) .................................................................................... 2.1, 3.2
315(a) .................................................................................... 3.1(d)
315(b) .................................................................................... 2.7
315(c) .................................................................................... 3.1
315(d) .................................................................................... 3.1(d)
316(a) .................................................................................... 1.1, 2.6, 5.4
316(b) .................................................................................... 5.3
316(c) .................................................................................... 9.2
317(a) .................................................................................... Inapplicable
317(b) .................................................................................... Inapplicable
318(a) .................................................................................... 2.1(b)
318(b) .................................................................................... 2.1
318(c) .................................................................................... 2.1(a)
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* This Cross-Reference Table does not constitute part of this Trust Preferred
Securities Guarantee Agreement and shall not affect the interpretation of
any of its terms or provisions.
(iii)
TRUST PREFERRED SECURITIES GUARANTEE AGREEMENT
This TRUST PREFERRED SECURITIES GUARANTEE AGREEMENT (this "Trust
Guarantee"), dated as of ______ __, 200_, is executed and delivered by Hawaiian
Electric Industries, Inc., a Hawaii corporation (the "Guarantor" or the
"Company"), and The Bank of New York, a New York banking corporation, as trustee
(the "Trust Guarantee Trustee"), for the benefit of the Holders (as defined
herein) from time to time of the Trust Preferred Securities (as defined herein)
of Hawaiian Electric Industries Capital Trust II, a Delaware statutory trust
(the "Trust").
WHEREAS, pursuant to an Amended and Restated Trust Agreement (the
"Trust Agreement"), dated as of _______ __, 200_, among the trustees of the
Trust named therein, Hawaiian Electric Industries, Inc., as Sponsor and
Depositor, and the holders from time to time of undivided beneficial interests
in the assets of the Trust, the Trust is issuing on the date hereof __________
Trust Preferred Securities, having an aggregate liquidation amount of
$_________, designated the ____% Trust Preferred Securities (the "Trust
Preferred Securities") representing preferred undivided beneficial interests in
the assets of the Trust and having the terms set forth in the Trust Agreement;
WHEREAS, as incentive for the Holders to purchase the Trust Preferred
Securities, the Guarantor desires irrevocably and unconditionally to agree, to
the extent set forth in this Trust Guarantee, to pay to the Holders of the Trust
Preferred Securities the Guarantee Payments (as defined herein) and to make
certain other payments on the terms and conditions set forth herein and;
NOW, THEREFORE, in consideration of the purchase by each Holder of the
Trust Preferred Securities, which purchase the Guarantor hereby agrees shall
benefit the Guarantor both directly and indirectly, the Guarantor executes and
delivers this Trust Guarantee for the benefit of the Holders from time to time
of the Trust Preferred Securities.
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation
In this Trust Guarantee, unless the context otherwise requires:
(a) capitalized terms used in this Trust Guarantee but not defined
in the preamble above have the respective meanings assigned to them in this
Section 1.1;
(b) capitalized terms used in this Trust Guarantee but not
otherwise defined herein shall have the meanings assigned to them in the Trust
Agreement;
(c) a term defined anywhere in this Trust Guarantee has the same
meaning throughout;
(d) all references to "this Trust Guarantee" are to this Trust
Guarantee as modified, supplemented or amended from time to time;
(e) all references in this Trust Guarantee to Articles and
Sections are to Articles and Sections of this Trust Guarantee, unless otherwise
specified;
(f) a term defined in the Trust Indenture Act has the same meaning
when used in this Trust Guarantee, unless otherwise defined in this Trust
Guarantee or unless the context otherwise requires;
(g) a reference to the singular includes the plural and vice
versa; and
(h) the masculine, feminine or neuter genders used herein shall
include the masculine, feminine and neuter genders.
"Affiliate" means, with respect to any specified Person, any other
Person that directly or indirectly controls or is controlled by, or is under
common control with, such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise,
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Business Day" means any day other than a day on which banking
institutions in the City of New York, State of New York are authorized or
required by any applicable law to close.
"Comparable Equity Interest" shall mean any preferred security
hereafter issued by any finance subsidiary of which the Company is the parent
company and the principal purpose of which is to lend the proceeds of the sale
thereof to the Company or to eligible affiliates of the Company.
"Corporate Trust Office" means the principal trust office of the Trust
Guarantee Trustee at which, at any particular time, its corporate trust business
shall be administered, which office at the date hereof is located at 000 Xxxxxxx
Xxxxxx, 0X, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate Trust Administration.
"Covered Person" means any Holder or beneficial owner of Trust
Preferred Securities.
"Event of Default" means a default by the Guarantor on any of its
payment or other obligations under this Trust Guarantee.
"Guarantee Payments" means the following payments or distributions,
without duplication, with respect to the Trust Preferred Securities, to the
extent not paid or made by the Trust: (i) any accumulated and unpaid
Distributions (as defined in the Trust Agreement) that are required to be paid
on such Trust Preferred Securities to the extent the Trust shall have funds
available therefor, (ii) the redemption price, including all accumulated and
unpaid Distributions to the date of redemption (the "Redemption Price") to the
extent the Trust has funds available therefor, with respect to any Trust
Preferred Securities called for redemption by the Trust, and (iii) upon a
voluntary or involuntary dissolution, winding-up or termination of the Trust
(other
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than in connection with the distribution of the Debentures to the Holders as
provided in the Trust Agreement or the redemption of all of the Trust Preferred
Securities), the lesser of (a) the aggregate of the liquidation amount and all
accumulated and unpaid Distributions on the Trust Preferred Securities to the
date of payment and (b) the amount of assets of the Trust remaining available,
after satisfaction of all obligations of the Trust, for distribution to Holders
in liquidation of the Trust (in either case, the "Liquidation Distribution").
"Holder" shall mean any and each holder, as registered on the books and
records of the Trust, of any Trust Preferred Securities; provided, however,
that, in determining whether the holders of the requisite percentage of Trust
Preferred Securities have given any request, notice, consent or waiver
hereunder, "Holder" shall not include the Guarantor or any Affiliate of the
Guarantor.
"Indemnified Person" means the Trust Guarantee Trustee, any Affiliate
of the Trust Guarantee Trustee, or any officers, directors, shareholders,
members, partners, employees, representatives, nominees, custodians or agents of
the Trust Guarantee Trustee.
"Majority in liquidation amount of the Trust Preferred Securities"
means, except as provided by the Trust Indenture Act, a vote by Holders of the
Trust Preferred Securities, voting separately as a class, of more than 50% of
the aggregate liquidation amount (including the stated amount that would be paid
on redemption, liquidation or otherwise, plus accumulated and unpaid
Distributions to the date on which the voting percentages are determined) of all
Trust Preferred Securities then outstanding.
"Officer's Certificate" means, with respect to any Person, a
certificate signed by an Authorized Officer of such Person. Any Officer's
Certificate delivered with respect to compliance with a condition or covenant
provided for in this Trust Guarantee shall include:
(a) a statement that the officer signing the Officer's Certificate
has read the covenant or condition and the definition relating thereto;
(b) a brief statement of the nature and scope of the examination
or investigation undertaken by the officer in rendering the Officer's
Certificate;
(c) a statement that such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such officer
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether, in the opinion of such officer,
such condition or covenant has been complied with.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"Responsible Officer" means, with respect to the Trust Guarantee
Trustee, any officer within the Corporate Trust Office of the Trust Guarantee
Trustee, including any vice president,
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any assistant vice president, any assistant secretary, any assistant treasurer
or other officer of the Trust Guarantee Trustee customarily performing functions
similar to those performed by any of the above designated officers and also
means, with respect to a particular corporate trust matter, any other officer to
whom such matter is referred because of that officer's knowledge of and
familiarity with the particular subject.
"Successor Trust Guarantee Trustee" means a successor Trust Guarantee
Trustee possessing the qualifications to act as Trust Guarantee Trustee under
Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended.
"Trust Guarantee Trustee" means The Bank of New York, a New York
banking corporation, until a Successor Trust Guarantee Trustee has been
appointed and has accepted such appointment pursuant to the terms of this Trust
Guarantee and thereafter means each such Successor Trust Guarantee Trustee.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application
(a) This Trust Guarantee is subject to the provisions of the Trust
Indenture Act that are required to be part of this Trust Guarantee and shall, to
the extent applicable, be governed by such provisions.
(b) If and to the extent that any provision of this Trust
Guarantee limits, qualifies or conflicts with the duties imposed by Section 310
to 317, inclusive, of the Trust Indenture Act, the duties imposed by the Trust
Indenture Act shall control.
SECTION 2.2 Lists of Holders of Securities
(a) The Trust Guarantee Trustee shall preserve in as current a
form as is reasonably practicable the most recent list available to it of the
names and addresses of Holders of the Trust Preferred Securities. If the Trust
Guarantee Trustee is not the Registrar, the Guarantor shall furnish (or cause to
be furnished) to the Trust Guarantee Trustee semi-annually on or before the last
day of June and December in each year, and at such other times as the Trust
Guarantee Trustee may request in writing, a list, in such form and as of such
date as the Trust Guarantee Trustee may reasonably require, containing all the
information in the possession or control of the Registrar, the Guarantor or any
of its Paying Agents other than the Trust Guarantee Trustee as to the names and
addresses of Holders of the Trust Preferred Securities. If there are
unregistered securities outstanding, even if the Trust Guarantee Trustee is the
Registrar, the Company shall furnish to the Trust Guarantee Trustee such a list
containing such information with respect to Holders of such unregistered
securities only.
(b) The Trust Guarantee Trustee shall comply with its obligations
under Sections 311(a), 311(b) and Section 312(b) of the Trust Indenture Act.
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SECTION 2.3 Reports by the Trust Guarantee Trustee
Within 60 days after May 15 of each year, the Trust Guarantee Trustee
shall provide to the Holders of the Trust Preferred Securities such reports as
are required by Section 313 of the Trust Indenture Act, if any, in the form and
in the manner provided by Section 313 of the Trust Indenture Act. The Trust
Guarantee Trustee shall also comply with the requirements of Section 313(d) of
the Trust Indenture Act.
SECTION 2.4 Periodic Reports to the Trust Guarantee Trustee
The Guarantor shall provide to the Trust Guarantee Trustee such
documents, reports and information as required by Section 314 (if any) and the
compliance certificate required by Section 314 of the Trust Indenture Act in the
form, in the manner and at the times required by Section 314 of the Trust
Indenture Act. Delivery of such reports, information and documents to the Trust
Guarantee Trustee is for informational purposes only and the Trust Guarantee
Trustee's receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained
therein.
SECTION 2.5 Evidence of Compliance with Conditions Precedent
The Guarantor shall provide to the Trust Guarantee Trustee such
evidence of compliance with any conditions precedent, if any, provided for in
this Trust Guarantee that relate to any of the matters set forth in Section
314(c) of the Trust Indenture Act. Any certificate or opinion required to be
given by an officer pursuant to Section 314(c)(1) may be given in the form of an
Officer's Certificate.
SECTION 2.6 Events of Default; Waiver
The Holders of a Majority in liquidation amount of the Trust Preferred
Securities may, by vote, on behalf of the Holders of all of the Trust Preferred
Securities, waive any past Event of Default and its consequences. Upon such
waiver, any such Event of Default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been cured, for every purpose of this
Trust Guarantee, but no such waiver shall extend to any subsequent or other
default or Event of Default or impair any right consequent thereon.
SECTION 2.7 Event of Default; Notice
(a) The Trust Guarantee Trustee shall, within 90 days after the
occurrence of an Event of Default, transmit by mail, first class postage
prepaid, to the Holders of the Trust Preferred Securities, notices of all Events
of Default actually known to a Responsible Officer of the Trust Guarantee
Trustee, unless such defaults have been cured before the giving of such notice;
provided, however, that the Trust Guarantee Trustee shall be protected in
withholding such notice if and so long as a Responsible Officer of the Trust
Guarantee Trustee in good faith determines that the withholding of such notice
is in the interests of the Holders of the Trust Preferred Securities.
(b) The Trust Guarantee Trustee shall not be deemed to have
knowledge of any Event of Default unless the Trust Guarantee Trustee shall have
received written notice, or of which a
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Responsible Officer of the Trust Guarantee Trustee charged with the
administration of the Trust Agreement shall have obtained actual knowledge.
SECTION 2.8 Conflicting Interests
The Trust Agreement shall be deemed to be specifically described in
this Trust Guarantee for the purposes of clause (i) of the first proviso
contained in Section 310(b) of the Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF
THE TRUST GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Trust Guarantee Trustee
(a) This Trust Guarantee shall be held by the Trust Guarantee
Trustee for the benefit of the Holders of the Trust Preferred Securities, and
the Trust Guarantee Trustee shall not transfer this Trust Guarantee to any
Person except a Holder of Trust Preferred Securities exercising its rights
pursuant to Section 5.4(b) or to a Successor Trust Guarantee Trustee on
acceptance by such Successor Trust Guarantee Trustee of its appointment to act
as Successor Trust Guarantee Trustee. The right, title and interest of the Trust
Guarantee Trustee shall automatically vest in any Successor Trust Guarantee
Trustee, and such vesting and cessation of title shall be effective whether or
not conveyancing documents have been executed and delivered pursuant to the
appointment of such Successor Trust Guarantee Trustee.
(b) If an Event of Default actually known to a Responsible Officer
of the Trust Guarantee Trustee has occurred and is continuing, the Trust
Guarantee Trustee shall enforce this Trust Guarantee for the benefit of the
Holders of the Trust Preferred Securities.
(c) The Trust Guarantee Trustee, during the period before the
occurrence of any Event of Default and during the period after the curing or
waiver of all Events of Default that may have occurred, shall undertake to
perform only such duties as are specifically set forth in this Trust Guarantee,
and no implied covenants shall be read into this Trust Guarantee against the
Trust Guarantee Trustee. In case an Event of Default has occurred (that has not
been cured or waived pursuant to Section 2.6) and is actually known to a
Responsible Officer of the Trust Guarantee Trustee, the Trust Guarantee Trustee
shall exercise such of the rights and powers vested in it by this Trust
Guarantee, and use the same degree of care and skill in its exercise thereof, as
a prudent person would exercise or use under the circumstances in the conduct of
his or her own affairs.
(d) No provision of this Trust Guarantee shall be construed to
relieve the Trust Guarantee Trustee from liability for its own negligent action,
its own negligent failure to act, or its own willful misconduct, except that:
(i) During the period prior to the occurrence of any
Event of Default and during the period after the curing or waiving of
any Events of Default that may occur:
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(A) the duties and obligations of the Trust
Guarantee Trustee shall be determined solely by the express
provisions of this Trust Guarantee, and the Trust Guarantee
Trustee shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this
Trust Securities Guarantee, and no implied covenants or
obligations shall be read into this Trust Securities Guarantee
against the Trust Guarantee Trustee; and
(B) in the absence of bad faith on the part of
the Trust Guarantee Trustee, the Trust Guarantee Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Trust Guarantee
Trustee and conforming to the requirements of this Trust
Guarantee; but in the case of any such certificates or
opinions that by any provision hereof are specifically
required to be furnished to the Trust Guarantee Trustee, the
Trust Guarantee Trustee shall be under a duty to examine the
same to determine whether or not they conform to the
requirements of this Trust Guarantee;
(ii) The Trust Guarantee Trustee shall not be liable for
any error of judgment made in good faith by a Responsible Officer of
the Trust Guarantee Trustee, unless it shall be proved that the Trust
Guarantee Trustee was negligent in ascertaining the pertinent facts
upon which such judgment was made;
(iii) The Trust Guarantee Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in good faith
in accordance with the direction of the Holders of the Trust Preferred
Securities relating to the time, method and place of conducting any
proceeding for any remedy available to the Trust Guarantee Trustee, or
exercising any trust or power conferred upon the Trust Guarantee
Trustee under this Trust Guarantee; and
(iv) No provision of this Trust Guarantee shall require
the Trust Guarantee Trustee to expend or risk its own funds or
otherwise incur personal financial liability in the performance of any
of its duties or in the exercise of any of its rights or powers, if the
Trust Guarantee Trustee shall have reasonable grounds for believing
that the repayment of such funds or liability is not reasonably assured
to it under the terms of this Trust Guarantee or indemnity, reasonably
satisfactory to the Trust Guarantee Trustee, against such risk or
liability is not reasonably assured to it.
SECTION 3.2 Certain Rights of the Trust Guarantee Trustee
(a) Subject to the provisions of Section 3.1:
(i) The Trust Guarantee Trustee may conclusively rely,
and shall be fully protected in acting or refraining from acting upon,
any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document believed by
it to be genuine and to have been signed, sent or presented by the
proper party or parties.
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(ii) Any direction or act of the Guarantor contemplated by
this Trust Guarantee shall be sufficiently evidenced by an Officer's
Certificate.
(iii) Whenever, in the administration of this Trust
Guarantee, the Trust Guarantee Trustee shall deem it desirable that a
matter be proved or established before taking, suffering or omitting
any action hereunder, the Trust Guarantee Trustee (unless other
evidence is herein specifically prescribed) may, in the absence of bad
faith on its part, request and conclusively rely upon an Officer's
Certificate which, upon receipt of such request, shall be promptly
delivered by the Guarantor.
(iv) The Trust Guarantee Trustee shall have no duty to see
to any recording, filing or registration of any instrument (or any
rerecording, re-filing or registration thereof).
(v) The Trust Guarantee Trustee may, at the expense of
the Guarantor, consult with counsel of its selection with respect to
this Trust Guarantee, and the advice or opinion of such counsel with
respect to legal matters shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in accordance with such advice or opinion.
Such counsel may be counsel to the Guarantor or any of its Affiliates
and may include any of its employees. The Trust Guarantee Trustee shall
have the right at any time to seek instructions concerning the
administration of this Trust Guarantee from any court of competent
jurisdiction.
(vi) The Trust Guarantee Trustee shall be under no
obligation to exercise any of the rights or powers vested in it by this
Trust Guarantee at the request or direction of any Holder, unless such
Holder shall have provided to the Trust Guarantee Trustee such security
and indemnity, reasonably satisfactory to the Trust Guarantee Trustee,
against the costs, expenses (including attorneys' fees and expenses and
the expenses of the Trust Guarantee Trustee's agents, nominees or
custodians) and liabilities that might be incurred by it in complying
with such request or direction, including such reasonable advances as
may be requested by the Trust Guarantee Trustee; provided that, nothing
contained in this Section 3.2(a)(vi) shall be taken to relieve the
Trust Guarantee Trustee, upon the occurrence of an Event of Default, of
its obligation to exercise the rights and powers vested in it by this
Trust Guarantee.
(vii) The Trust Guarantee Trustee shall not be bound to
make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document, but the
Trust Guarantee Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit.
(viii) The Trust Guarantee Trustee may execute any of the
trusts or powers hereunder or perform any duties hereunder either
directly or by or through agents, nominees, custodians or attorneys,
and the Trust Guarantee Trustee shall not be
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responsible for any misconduct or negligence on the part of any agent
or attorney appointed with due care by it hereunder.
(ix) Any action taken by the Trust Guarantee Trustee or
its agents hereunder shall bind the Holders of the Trust Preferred
Securities, and the signature of the Trust Guarantee Trustee or its
agents alone shall be sufficient and effective to perform any such
action. No third party shall be required to inquire as to the authority
of the Trust Guarantee Trustee to so act or as to its compliance with
any of the terms and provisions of this Trust Guarantee, both of which
shall be conclusively evidenced by the Trust Guarantee Trustee or its
agent taking such action.
(x) Whenever in the administration of this Trust
Guarantee the Trust Guarantee Trustee shall deem it desirable to
receive instructions with respect to enforcing any remedy or right or
taking any other action hereunder, the Trust Guarantee Trustee (i) may
request instructions from the Holders of a Majority in liquidation
amount of the Trust Preferred Securities, (ii) may refrain from
enforcing such remedy or right or taking such other action until such
instructions are received, and (iii) shall be protected in conclusively
relying on or acting in accordance with such instructions.
(xi) The Trust Guarantee Trustee shall not be liable for
any action taken, suffered, or omitted to be taken by it in good faith
and reasonably believed by it to be authorized or within the discretion
or rights or powers conferred upon it by this Trust Guarantee.
(b) No provision of this Trust Guarantee shall be deemed to impose
any duty or obligation on the Trust Guarantee Trustee to perform any act or acts
or exercise any right, power, duty or obligation conferred or imposed on it in
any jurisdiction in which it shall be illegal, or in which the Trust Guarantee
Trustee shall be unqualified or incompetent in accordance with applicable law,
to perform any such act or acts or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Trust Guarantee
Trustee shall be construed to be a duty.
SECTION 3.3 Not Responsible for Recitals or Issuance of the Trust Guarantee
The recitals contained in this Trust Guarantee shall be taken as the
statements of the Guarantor, and the Trust Guarantee Trustee does not assume any
responsibility for their correctness. The Trust Guarantee Trustee makes no
representation as to the validity or sufficiency of this Trust Guarantee.
ARTICLE IV
THE TRUST GUARANTEE TRUSTEE
SECTION 4.1 The Trust Guarantee Trustee; Eligibility
(a) There shall at all times be a Trust Guarantee Trustee which
shall:
(i) not be an Affiliate of the Guarantor; and
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(ii) be a corporation organized and doing business under
the laws of the United States of America or any State or Territory
thereof or of the District of Columbia, or a corporation or Person
permitted by the Securities and Exchange Commission to act as an
institutional trustee under the Trust Indenture Act, authorized under
such laws to exercise corporate trust powers, having a combined capital
and surplus of at least fifty million U.S. dollars ($50,000,000), and
subject to supervision or examination by Federal, State, Territorial or
District of Columbia authority. If such corporation publishes reports
of condition at least annually, pursuant to law or to the requirements
of the supervising or examining authority referred to above, then, for
the purposes of this Section 4.1(a)(ii), the combined capital and
surplus of such corporation shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so
published.
(b) If at any time the Trust Guarantee Trustee shall cease to be
eligible to so act under Section 4.1(a), the Trust Guarantee Trustee shall
immediately resign in the manner and with the effect set out in Section 4.2(c).
(c) If the Trust Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Trust Guarantee Trustee and Guarantor shall in all respects
comply with the provisions of Section 310(b) of the Trust Indenture Act.
SECTION 4.2 Appointment, Removal and Resignation of the Trust Guarantee Trustee
(a) Subject to Section 4.2(b), the Trust Guarantee Trustee may be
appointed or removed without cause at any time by the Guarantor except during
any period in which an Event of Default has occurred and is continuing.
(b) The Trust Guarantee Trustee shall not be removed in accordance
with Section 4.2(a) until a Successor Trust Guarantee Trustee has been appointed
and has accepted such appointment by written instrument executed by such
Successor Trust Guarantee Trustee and delivered to the Guarantor.
(c) The Trust Guarantee Trustee appointed to office shall hold
office until a Successor Trust Guarantee Trustee shall have been appointed or
until its removal or resignation. The Trust Guarantee Trustee may resign from
office (without need for prior or subsequent accounting) by an instrument in
writing executed by the Trust Guarantee Trustee and delivered to the Guarantor,
which resignation shall not take effect until a Successor Trust Guarantee
Trustee has been appointed and has accepted such appointment by instrument in
writing executed by such Successor Trust Guarantee Trustee and delivered to the
Guarantor and the resigning Trust Guarantee Trustee.
(d) If no Successor Trust Guarantee Trustee shall have been
appointed and accepted appointment as provided in this Section 4.2 within 60
days after delivery of an instrument of removal or resignation, the Trust
Guarantee Trustee resigning or being removed may petition any court of competent
jurisdiction for appointment of a Successor Trust Guarantee Trustee. Such court
may thereupon, after prescribing such notice, if any, as it may deem proper,
appoint a Successor Trust Guarantee Trustee.
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(e) No Trust Guarantee Trustee shall be liable for the acts or
omissions to act of any Successor Trust Guarantee Trustee.
(f) Upon termination of this Trust Guarantee or removal or
resignation of the Trust Guarantee Trustee pursuant to this Section 4.2, and
before the appointment of any Successor Trust Guarantee Trustee, the Guarantor
shall pay to the Trust Guarantee Trustee all amounts to which it is entitled to
the date of such termination, removal or resignation.
SECTION 4.3 Successor to the Trust Guarantee Trustee by Merger, Consolidation or
Succession to Business.
Any corporation into which the Trust Guarantee Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Trust Guarantee Trustee shall be the successor
of the Trust Guarantee Trustee hereunder, provided such corporation shall be
qualified and eligible under the provisions of Section 4.1(a), without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding.
ARTICLE V
THE TRUST GUARANTEE
SECTION 5.1 Guarantee
The Guarantor irrevocably and unconditionally agrees to pay in full to
the Holders the Guarantee Payments (without duplication of amounts theretofore
paid by the Trust), if, as and when due, regardless of any defense, right of
setoff or counterclaim that the Trust may have or assert. The Guarantor's
obligation to make a Guarantee Payment may be satisfied by direct payment of the
required amounts by the Guarantor to the Holders or by causing the Trust to pay
such amounts to the Holders.
SECTION 5.2 Waiver of Notice and Demand
The Guarantor hereby waives notice of acceptance of this Trust
Guarantee and of any liability to which it applies or may apply, presentment,
demand for payment, any right to require a proceeding first against the Trust or
any other Person before proceeding against the Guarantor, protest, notice of
nonpayment, notice of dishonor, notice of redemption and all other notices and
demands.
SECTION 5.3 Obligations Not Affected
The obligations, covenants, agreements and duties of the Guarantor
under this Trust Guarantee shall in no way be affected or impaired by reason of
the happening from time to time of any of the following:
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(a) the release or waiver, by operation of law or otherwise, of
the performance or observance by the Trust of any express or implied agreement,
covenant, term or condition relating to the Trust Preferred Securities to be
performed or observed by the Trust;
(b) the extension of time for the payment by the Trust of all or
any portion of the Distributions, Redemption Price, Liquidation Distribution or
any other sums payable under the terms of the Trust Preferred Securities or the
extension of time for the performance of any other obligation under, arising out
of, or in connection with, the Trust Preferred Securities;
(c) any failure, omission, delay or lack of diligence on the part
of the Holders or the Trust Guarantee Trustee to enforce, assert or exercise any
right, privilege, power or remedy conferred on the Holders or the Trust
Guarantee Trustee pursuant to the terms of the Trust Preferred Securities or
this Trust Guarantee, or any action on the part of the Trust granting indulgence
or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of
any collateral, receivership, insolvency, bankruptcy, assignment for the benefit
of creditors, reorganization, arrangement, composition or readjustment of debt
of, or other similar proceedings affecting, the Trust or any of the assets of
the Trust;
(e) any invalidity of, or defect or deficiency in, the Trust
Preferred Securities;
(f) the settlement or compromise of any obligation guaranteed
hereby or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a guarantor, it being
the intent of this Section 5.3 that the obligations of the Guarantor hereunder
shall be absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or
obtain consent of, the Guarantor with respect to the happening of any of the
foregoing.
SECTION 5.4 Rights of Holders
(a) The Holders of a Majority in liquidation amount of the Trust
Preferred Securities have the right to direct the time, method and place of
conducting of any proceeding for any remedy available to the Trust Guarantee
Trustee in respect of this Trust Guarantee or exercising any trust or power
conferred upon the Trust Guarantee Trustee under this Trust Guarantee.
(b) If the Trust Guarantee Trustee fails to enforce its rights
under the Trust Guarantee after a Holder of Trust Preferred Securities has made
a written request, such Holder of Trust Preferred Securities may institute a
legal proceeding directly against the Guarantor to enforce the Trust Guarantee
Trustee's rights under this Trust Guarantee, without first instituting a legal
proceeding against the Trust, the Trust Guarantee Trustee or any other Person or
entity. Notwithstanding the foregoing, if the Guarantor has failed to make a
Guarantee Payment, a Holder of Trust Preferred Securities may directly institute
a proceeding in such Holder's own name against the Guarantor for enforcement of
the Trust Guarantee for such payment. The
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Guarantor waives any right or remedy to require that any action be brought first
against the Trust, the Trust Guarantee Trustee or any other Person or entity
before proceeding directly against the Guarantor.
SECTION 5.5 Guarantee of Payment
This Trust Guarantee constitutes a guarantee of payment and not of
collection.
SECTION 5.6 Subrogation
The Guarantor shall be subrogated to all (if any) rights of the Holders
of the Trust Preferred Securities against the Trust in respect of any amounts
paid to such Holders by the Guarantor under this Trust Guarantee; provided,
however, that the Guarantor shall not (except to the extent required by
mandatory provisions of law) be entitled to enforce or exercise any right that
it may acquire by way of subrogation or any indemnity, reimbursement or other
agreement, in all cases as a result of payment under this Trust Guarantee, if,
at the time of any such payment, any amounts are due and unpaid under this Trust
Guarantee. If any amount shall be paid to the Guarantor in violation of the
preceding sentence, the Guarantor agrees to hold such amount in trust for the
Holders and to pay over such amount to the Holders.
SECTION 5.7 Independent Obligations
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Trust with respect to the Trust Preferred
Securities, and that the Guarantor shall be liable as principal and as debtor
hereunder to make Guarantee Payments pursuant to the terms of this Trust
Guarantee notwithstanding the occurrence of any event referred to in subsections
(a) through (g), inclusive, of Section 5.3 hereof.
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 Limitation of Transactions
So long as any Trust Preferred Securities remain outstanding, if (a)
for any distribution period, full distributions on a cumulative basis on any
Trust Preferred Securities have not been paid or declared and set apart for
payment or (b) the Company is in default of its obligations under this Trust
Guarantee, then, during such period (i) the Company shall not declare or pay any
dividends on, make any distributions with respect to, or redeem, purchase or
acquire, or make a liquidation payment with respect to any of its capital stock
(except for dividends or distributions in shares of, or options, warrants or
rights to subscribe for or purchase shares of, its common stock and exchanges or
conversions of common stock of one class for common stock of another class and
other than (x) purchases or acquisitions of shares of its common stock in
connection with the satisfaction by the Company of its obligations under any
employee benefit, dividend reinvestment, stock purchase or other stock plans or
any other contractual obligation of the Company, (y) as a result of a
reclassification of the Company's capital stock or the exchange or conversion of
one class or series of the Company's capital stock for another class or series
of the Company's capital stock or (z) the purchase of fractional interests in
shares of the Company's
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capital stock pursuant to the conversion or exchange provisions of such capital
stock or the security being converted or exchanged), (ii) the Company shall not
make any payment or cause any payment to be made that would result in, and shall
take such action as shall be necessary to prevent, the payment of any dividends
on, any distribution with respect to, any redemption, purchase or other
acquisition of, or any liquidation payment with respect to, any Comparable
Equity Interest, and (iii) the Company shall not make any guarantee payments
with respect to the foregoing (other than pursuant to this Trust Guarantee or
any other guarantee by the Company with respect to any Comparable Equity
Interest).
SECTION 6.2 Ranking
This Trust Guarantee will constitute an unsecured obligation of the
Guarantor and will rank (i) subordinate and junior in right of payment to all
other existing liabilities of the Guarantor, including, without limitation, the
fees, charges, expenses and indemnities due to the Property Trustee or the
Delaware Trustee in respect of the Trust Agreement and to the Trust Guarantee
Trustee in respect of this Trust Guarantee, (ii) pari passu with (A) the most
senior preferred or preference stock now or hereafter issued by the Guarantor,
(B) any guarantee hereafter entered into by the Guarantor in respect of any
preferred security (similar to the Trust Preferred Securities) of any Affiliate
of the Guarantor, and (C) any other obligation of the Guarantor expressly stated
to rank pari passu with this Trust Guarantee or any of the foregoing, and (iii)
senior to the Guarantor's common stock. Any similar guarantee given hereafter by
the Guarantor with respect to securities similar to the Trust Preferred
Securities that is silent as to seniority will rank pari passu with this Trust
Guarantee.
ARTICLE VII
TERMINATION
SECTION 7.1 Termination
This Trust Guarantee shall terminate upon (i) full payment of the
Redemption Price of all Trust Preferred Securities, (ii) the distribution of the
Debentures to the Holders of all outstanding Trust Preferred Securities or (iii)
full payment of the amounts payable in accordance with the Trust Agreement upon
liquidation of the Trust. Notwithstanding the foregoing, this Trust Guarantee
will continue to be effective or will be reinstated, as the case may be, if at
any time any Holder of Trust Preferred Securities must restore payment of any
sums paid under the Trust Preferred Securities or under this Trust Guarantee.
ARTICLE VIII
EXCULPATION AND INDEMNIFICATION
SECTION 8.1 Exculpation
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Guarantor or any Covered Person for
any loss, damage or claim incurred by reason of any act or omission performed or
omitted by such Indemnified Person in good faith in accordance with this Trust
Guarantee and in a manner that such Indemnified Person reasonably believed to be
within the scope of the authority conferred on such Indemnified Person by this
Trust Guarantee or by law, except that an Indemnified Person shall be liable for
any such loss,
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damage or claim incurred by reason of such Indemnified Person's gross negligence
or willful misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in
good faith upon the records of the Guarantor and upon such information,
opinions, reports or statements presented to the Guarantor by any Person as to
matters the Indemnified Person reasonably believes are within such other
Person's professional or expert competence and who has been selected with
reasonable care by or on behalf of the Guarantor, including information,
opinions, reports or statements as to the value and amount of the assets,
liabilities, profits, losses, or any other facts pertinent to the existence and
amount of assets from which Distributions to Holders of the Trust Preferred
Securities might properly be paid.
SECTION 8.2 Indemnification
The Guarantor agrees to indemnify each Indemnified Person for, and to
hold each Indemnified Person harmless against, any and all loss, liability,
damage, claim or expense, including taxes (other than taxes based on the income
of such Indemnified Person) incurred without gross negligence or bad faith on
its part, arising out of or in connection with the acceptance or administration
of the trust or trusts hereunder, including the costs and expenses (including
reasonable legal fees and expenses) of defending itself against, or
investigating, any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder. The obligation to
indemnify as set forth in this Section 8.2 shall survive the termination of this
Trust Guarantee or the earlier resignation or removal of the Trust Guarantee
Trustee.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Successors and Assigns
All guarantees and agreements contained in this Trust Guarantee shall
bind the successors, assigns, receivers, trustees and representatives of the
Guarantor and shall inure to the benefit of the Holders of the Trust Preferred
Securities then outstanding.
SECTION 9.2 Amendments and Assignment
Except with respect to any changes that do not materially adversely
affect the rights of Holders (in which case no consent of Holders will be
required), this Trust Guarantee may only be amended with the prior approval of
the Holders of at least a Majority in liquidation amount of the Trust Preferred
Securities. The provisions of Section 13.2 of the Trust Agreement with respect
to meetings of Holders of the Trust Preferred Securities apply to the giving of
such approval.
The Guarantor may not assign its rights or delegate its obligations
under this Trust Guarantee without the prior approval of the Holders of at least
a Majority in liquidation amount of the Trust Preferred Securities.
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SECTION 9.3 Merger of the Guarantor
The Guarantor covenants that it will not merge or consolidate with any
other corporation or other entity or sell or convey all or substantially all of
its assets to any Person (other than such a sale or conveyance to a Subsidiary
or any successor thereto (such a sale or conveyance being called an "Asset
Drop-Down")), unless (i) either the Guarantor shall be the continuing
corporation or the successor corporation (or other entity or the Person which
acquires by sale or conveyance substantially all the assets of the Guarantor)
shall expressly assume the obligations of the Guarantor hereunder, according to
their tenor, and the due and punctual performance and observance of all of the
covenants hereof to be performed or observed by the Guarantor, by instrument in
form satisfactory to the Trust Guarantee Trustee, executed and delivered to the
Trust Guarantee Trustee by such corporation or other entity, and (ii) the
Guarantor or such successor corporation or other entity, as the case may be,
shall not, immediately after such merger or consolidation, or such sale or
conveyance, be in default in the performance of any such covenant or condition.
In the event of any Asset Drop-Down after the date hereof, any subsequent sale
or conveyance of assets by a Subsidiary to which assets were transferred in such
Asset Drop-Down will be deemed to be a sale or conveyance of assets by the
Guarantor for purposes of this provision.
SECTION 9.4 Notices
All notices provided for in this Trust Guarantee shall be in writing,
duly signed by the party giving such notice, and shall be delivered, telecopied
or mailed by first class mail, as follows:
(a) If given to the Trust Guarantee Trustee, at the Trust
Guarantee Trustee's mailing address set forth below:
The Bank of New York
000 Xxxxxxx Xxxxxx, 0X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration
Telecopy:___________________
(b) If given to the Guarantor, at the Guarantor's mailing address
set forth below (or such other address as the Guarantor may give notice of to
the Holders of the Trust Preferred Securities):
Hawaiian Electric Industries, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxx 00000
Attention: Treasurer
Telecopy: (000) 000-0000
(c) If given to any Holder of Trust Preferred Securities, at the
address set forth on the books and records of the Trust.
All such notices shall be deemed to have been given when received in
person, telecopied
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with receipt confirmed, or mailed by first class mail with postage prepaid,
except that if a notice or other document is refused delivery or cannot be
delivered because of a changed address of which no notice was given, such notice
or other document shall be deemed to have been delivered on the date of such
refusal or inability to deliver.
SECTION 9.5 Benefit
This Trust Guarantee is solely for the benefit of the Holders of the
Trust Preferred Securities and, subject to Section 3.1(a), is not separately
transferable from the Trust Preferred Securities.
SECTION 9.6 Governing Law
THIS TRUST GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO THE CONFLICTS OF LAWS PRINCIPLES THEREOF.
THIS TRUST GUARANTEE is executed as of the day and year first above
written.
HAWAIIAN ELECTRIC INDUSTRIES, INC.
Guarantor
By: _____________________________________
Name: Xxxx X. Xxxxxx
Title: Financial Vice President &
Treasurer
By: _____________________________________
Name: Xxxxxx X. Xxxxxx
Title: Controller
THE BANK OF NEW YORK,
as Trust Guarantee Trustee
By: _____________________________________
Name:
Title:
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