EXHIBIT 5(b)
[Letterhead of Richards, Layton & Finger]
January 23, 1997
HEI Preferred Funding, LP
Hawaiian Electric Industries Capital Trust I
c/o Hawaiian Electric Industries, Inc.
900 Richards Street
Honolulu, Hawaii 96813
Re: HEI Preferred Funding, LP
and Hawaiian Electric Industries Capital Trust I
------------------------------------------------
Ladies and Gentlemen:
We have acted as special Delaware counsel for Hawaiian Electric
Industries, Inc., a Hawaii corporation (the "Company"), HEI Preferred Funding,
LP, a Delaware limited partnership (the "Partnership"), and Hawaiian Electric
Industries Capital Trust I, a Delaware business trust (the "Trust"), in
connection with the matters set forth herein. At your request, this opinion is
being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Limited Partnership of the Partnership, dated
as of December 23, 1996, as filed in the office of the Secretary of State of the
State of Delaware (the "Secretary of State") on December 23, 1996;
HEI Preferred Funding, LP
Hawaiian Electric Industries Capital Trust I
January 23, 1997
Page 2
(b) The Agreement of Limited Partnership of the Partnership, dated as
of December 23, 1996;
(c) The Amended and Restated Certificate of Limited Partnership of the
Partnership, dated as of January 23, 1997 (the "Partnership Certificate"), as
filed in the office of the Secretary of State on January 23, 1997;
(d) The Assignment of General Partner Interest and Amendment to
Agreement of Limited Partnership of the Partnership, dated as of January 23,
1997;
(e) A form of Amended and Restated Agreement of Limited Partnership of
the Partnership (including Annex A thereto) (the "Partnership Agreement"), to be
entered into among Hycap Management, Inc., a Delaware corporation, as general
partner, the Trust, as initial limited partner, and such other Persons who
become limited partners of the Partnership, attached as an exhibit to the
Registration Statement (as defined below);
(f) The Certificate of Trust of the Trust, dated as of December 19,
1996 (the "Trust Certificate"), as filed in the office of the Secretary of State
on December 23, 1996;
(g) The Trust Agreement of the Trust, dated as of December 19, 1996,
among the Company, and the trustees of the Trust named therein;
(h) A form of Amended and Restated Trust Agreement of the Trust
(including Exhibits A-1 and A-2 thereto) (the "Trust Agreement"), to be
entered into among the Company, as sponsor, the trustees of the Trust named
therein, and the holders, from time to time, of undivided beneficial interests
in the assets of the Trust, attached as an exhibit to the Registration
Statement;
(i) Amendment No. 1 to the Registration Statement (the "Registration
Statement") on Form S-3, including a related preliminary prospectus (the
"Prospectus"), and a preliminary prospectus supplement, relating to the ___%
Trust Originated Preferred Securities of the Trust representing preferred
undivided beneficial interests in the assets of the Trust (each, a "Trust
Preferred Security" and collectively, the "Trust Preferred Securities"), and the
Partnership Preferred Securities of the Partnership representing limited partner
interests in the Partnership (each, a "Partnership Preferred Security" and
collectively, the "Partnership Preferred Securities"), as proposed to be filed
by the Company, the Partnership, the Trust and others with the Securities and
Exchange Commission on or about January 23, 1997;
(j) A Certificate of Good Standing for the Partnership, dated January
23, 1997, obtained from the Secretary of State; and
(k) A Certificate of Good Standing for the Trust, dated January 23,
1997, obtained from the Secretary of State.
HEI Preferred Funding, LP
Hawaiian Electric Industries Capital Trust I
January 23, 1997
Page 3
Capitalized terms used herein and not otherwise defined are used as
defined in the Partnership Agreement.
For purposes of this opinion, we have not reviewed any documents other
than the documents listed in paragraphs (a) through (k) above. In particular,
we have not reviewed any document (other than the documents listed in paragraphs
(a) through (k) above) that is referred to in or incorporated by reference into
the documents reviewed by us. We have assumed that there exists no provision in
any document that we have not reviewed that is inconsistent with the opinions
stated herein. We have conducted no independent factual investigation of our
own, but rather have relied solely upon the foregoing documents, the statements
and information set forth therein and the additional matters recited or assumed
herein, all of which we have assumed to be true, complete and accurate in all
material respects.
With respect to all documents examined by us, we have assumed (i) the
authenticity of all documents submitted to us as authentic originals, (ii) the
conformity with the originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the Partnership
Agreement constitutes the entire agreement among the parties thereto with
respect to the subject matter thereof, including with respect to the admission
of partners to, and the creation, operation and termination of, the Partnership,
and that the Partnership Agreement and the Partnership Certificate are in full
force and effect and have not been amended, (ii) that the Trust Agreement
constitutes the entire agreement among the parties thereto with respect to the
subject matter thereof, including with respect to the creation, operation and
termination of the Trust, and that the Trust Agreement and the Trust
Certificate are in full force and effect and have not been amended, (iii) except
to the extent provided in paragraphs 1 and 5 below, the due creation or the due
organization or due formation, as the case may be, and valid existence in good
standing of each party to the documents examined by us under the laws of the
jurisdiction governing its creation or organization or formation, (iv) the legal
capacity of natural persons who are signatories to the documents examined by us,
(v) that each of the parties to the documents examined by us has the power and
authority to execute and deliver, and to perform its obligations under, such
documents, (vi) that all documents examined by us have been duly authorized,
executed and delivered by all parties thereto, (vii) the receipt by each Person
to whom a Partnership Preferred Security is to be issued by the Partnership
(collectively, the "Partnership Preferred Security Holders") of an L.P.
Certificate and the payment for the Partnership Preferred Security acquired by
it, in accordance with the Partnership Agreement and the
HEI Preferred Funding, LP
Hawaiian Electric Industries Capital Trust I
January 23, 1997
Page 4
Registration Statement, (viii) the receipt by each Person to whom a Trust
Preferred Security is to be issued by the Trust (collectively, the "Trust
Preferred Security Holders") of a Trust Preferred Security Certificate (as
defined in the Trust Agreement) and the payment for the Trust Preferred
Security acquired by it, in accordance with the Trust Agreement and the
Registration Statement, (ix) that the books and records of the Partnership set
forth all information required by the Partnership Agreement and the Delaware
Revised Uniform Limited Partnership Act (6 Del. C. (S) 17-101, et seq.) (the
------- -- ---
"Partnership Act"), including all information with respect to all Persons to be
admitted as Partners and their contributions to the Partnership, (x) that the
Partnership Preferred Securities are issued and sold to the Partnership
Preferred Security Holders in accordance with the Registration Statement and the
Partnership Agreement, and (xi) that the Trust Preferred Securities are issued
and sold to the Trust Preferred Security Holders in accordance with the
Registration Statement and the Trust Agreement. We have not participated in
the preparation of the Registration Statement and assume no responsibility for
its contents.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder that are currently in effect.
Based upon the foregoing, and upon our examination of such questions
of law and statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
1. The Partnership has been duly formed and is validly existing in
good standing as a limited partnership under the Partnership Act.
2. The Partnership Preferred Securities will represent valid and,
subject to the qualifications set forth in paragraph 3 below, fully paid and
nonassessable limited partner interests in the Partnership.
3. Assuming that the Partnership Preferred Security Holders, as
limited partners of the Partnership, do not participate in the control of the
business of the Partnership, the Partnership Preferred Security Holders, as
limited partners of the Partnership, will have no liability in excess of their
obligations to make payments provided for in the Partnership Agreement and their
share of the Partnership's assets and
HEI Preferred Funding, LP
Hawaiian Electric Industries Capital Trust I
January 23, 1997
Page 5
undistributed profits (subject to the obligation of a Partnership Preferred
Security Holder to repay any funds wrongfully distributed to it).
4. There are no provisions in the Partnership Agreement the
inclusion of which, subject to the terms and conditions therein, or, assuming
that the Partnership Preferred Security Holders, as limited partners of the
Partnership, take no action other than actions permitted by the Partnership
Agreement, the exercise of which, in accordance with the terms and conditions
therein, would cause the Partnership Preferred Security Holders, as limited
partners of the Partnership, to be deemed to be participating in the control of
the business of the Partnership.
5. The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Business Trust Act (12 Del. C.
-------
(S) 3801, et seq.).
-- ---
6. The Trust Preferred Securities will represent valid and, subject
to the qualifications set forth in paragraph 7 below, fully paid and
nonassessable undivided beneficial interests in the assets of the Trust.
7. The Trust Preferred Security Holders, 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. We note that the Trust Preferred
Security Holders may be obligated to make payments as set forth in the
Trust Agreement.
We consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement. We also
consent to Goodsill Anderson Quinn & Stifel's relying as to matters of Delaware
law upon this opinion in connection with an opinion to be rendered by it in
connection with the Registration Statement. In addition, we hereby consent to
the use of our name under the heading "Legal Matters" in the Prospectus. In
giving the foregoing consents, we do not thereby admit that we come within the
category of Persons whose consent is required under Section 7 of the Securities
Act of 1933, as amended, or the rules and regulations of the Securities and
Exchange Commission thereunder. Except as stated above, without our prior
written consent, this opinion may not be furnished or quoted to, or relied upon
by, any other Person for any purpose.
Very truly yours,
BJK/jj