Exhibit 4(d)(ii)
----------------
ASSIGNMENT OF GENERAL PARTNER INTEREST AND
AMENDMENT TO AGREEMENT OF LIMITED PARTNERSHIP
OF
HEI PREFERRED FUNDING, LP
THIS Assignment of General Partner Interest and Amendment to Agreement of
Limited Partnership of HEI Preferred Funding, LP dated as of January 23, 1997
(this "Assignment and Amendment Agreement"), is entered into by and among
Hawaiian Electric Industries, Inc., a Hawaii corporation ("HEI"), Hawaiian
Electric Industries Capital Trust I, a statutory business trust created under
Delaware law (the "Trust") and Hycap Management, Inc., a Delaware corporation
("HYCAP").
WITNESSETH:
WHEREAS, HEI Preferred Funding, LP (the "Partnership") has been formed as a
limited partnership under the Delaware Revised Uniform Limited Partnership Act
(6 Del. C. (S) 17-101, et seq.) (the "Act") pursuant to a Certificate of Limited
Partnership of the Partnership, as filed in the office of the Secretary of State
of the State of Delaware (the "Secretary of State") on December 23, 1996 (the
"Certificate"), and an Agreement of Limited Partnership of the Partnership,
dated as of December 23, 1996 (the "Agreement");
WHEREAS, HEI is the sole general partner of the Partnership and the Trust
is the sole limited partner of the Partnership;
WHEREAS, HEI desires to assign, transfer and convey all of its interest in
the Partnership as a general partner of the Partnership (the "General Partner
Interest") to HYCAP, and HEI desires to withdraw from the Partnership as a
general partner of the Partnership;
WHEREAS, HYCAP desires to purchase the General Partner Interest presently
held by HEI, and HYCAP desires to be admitted to the Partnership as a successor
general partner of the Partnership; and
WHEREAS, the undersigned, being all of the partners of the Partnership, to
accomplish the foregoing, desire to amend the Agreement in the manner set forth
herein.
NOW, THEREFORE, the undersigned, in consideration of the premises,
covenants and agreements contained herein, do hereby agree as follows:
1. Assignment. Notwithstanding any provision in the Agreement to the
contrary, for value received, the receipt and sufficiency of which are hereby
acknowledged, upon the execution of this Assignment and Amendment Agreement by
the parties hereto, HEI does hereby assign, transfer and convey the General
Partner Interest to HYCAP.
2. Admission. Notwithstanding any provision in the Agreement to the
contrary, HYCAP is hereby admitted to the Partnership as a general partner of
the Partnership. The admission shall be effective upon the filing of an
amendment to the Certificate in the office of the Secretary of State which
reflects the fact that HYCAP is a general partner of the Partnership, and shall
occur, and for all purposes shall be deemed to have occurred, immediately prior
to the withdrawal of HEI from the Partnership as a general partner of the
Partnership.
3. Withdrawal. Notwithstanding any provision in the Agreement to the
contrary, HEI hereby withdraws from the Partnership as a general partner of the
Partnership. The withdrawal shall be effective upon the filing of an amendment
to the Certificate in the office of the Secretary of State which reflects the
fact that HEI is not a general partner of the Partnership.
4. Continuation. The parties hereto agree that following the withdrawal
of HEI from the Partnership as a general partner of the Partnership, HYCAP is
authorized to and hereby agrees to continue the business of the Partnership
without dissolution.
5. Books and Records. The general partner of the Partnership shall take
all actions necessary under the Act and the Agreement, including causing the
amendment of the Agreement, to evidence the withdrawal of HEI from the
Partnership as a general partner of the Partnership and the admission of HYCAP
to the Partnership as a general partner of the Partnership.
6. Future Cooperation. Each of the parties hereto agrees to cooperate at
all times from and after the date hereof with respect to all of the matters
described herein, and to execute such further assignments, releases,
assumptions, amendments of the Agreement, notifications and other documents as
may be reasonably requested for the purpose of giving effect to, or evidencing
or giving notice of, the transactions contemplated by this Assignment and
Amendment Agreement.
7. Payment. HYCAP has paid $25.00 and other good and valuable
consideration to HEI for the General Partner Interest.
8. Binding Effect. This Assignment and Amendment Agreement shall be
binding upon, and shall inure to the benefit of, the parties hereto and their
respective successors and assigns.
9. Execution in Counterparts. This Assignment and Amendment Agreement
may be executed in counterparts, each of which shall be deemed an original, but
all of which shall constitute one and the same instrument.
10. Agreement in Effect. Except as hereby amended, the Agreement shall
remain in full force and effect.
11. Governing Law. This Assignment and Amendment Agreement shall be
governed by, and interpreted in accordance with, the laws of the State of
Delaware, all rights and remedies being governed by such laws.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Amendment Agreement to be duly executed, as of the day and year first-above
written.
HYCAP MANAGEMENT, INC.,
as General Partner
By: /s/ Robert F. Clarke
---------------------------------
Name: Robert F. Clarke
Title: President
By: /s/ Betty Ann M. Splinter
---------------------------------
Name: Betty Ann M. Splinter
Title: Secretary
HAWAIIAN ELECTRIC INDUSTRIES
CAPITAL TRUST I, as Limited Partner
By HAWAIIAN ELECTRIC INDUSTRIES, INC.,
as Depositor
By: /s/ Robert F. Mougeot
---------------------------------
Name: Robert F. Mougeot
Title: Financial Vice President
& Chief Financial Officer
By: /s/ Constance H. Lau
---------------------------------
Name: Constance H. Lau
Title: Treasurer
HAWAIIAN ELECTRIC INDUSTRIES, INC.,
as Withdrawing General Partner
By: /s/ Robert F. Mougeot
---------------------------------
Name: Robert F. Mougeot
Title: Financial Vice President
& Chief Financial Officer
By: /s/ Constance H. Lau
---------------------------------
Name: Constance H. Lau
Title: Treasurer