EXHIBIT 4(B)
TRUST AGREEMENT
OF
HECO CAPITAL TRUST I
THIS TRUST AGREEMENT is made as of December 31, 1996 (the "Trust
Agreement"), by and among Hawaiian Electric Company, Inc., a Hawaii
corporation, as Depositor (the "Depositor"), The Bank of New York as trustee
(the "Property Trustee"), The Bank of New York (Delaware), a Delaware banking
corporation, as trustee (the "Delaware Trustee"), and T. Michael May, Paul A.
Oyer and Marvin H. Hawthorne, not individually but in their capacity 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 "HECO Capital Trust I" (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 sue 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 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. 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 Paul A. Oyer, Marvin A. Hawthorne, Curtis Y. Harada, David J.
Reber and Gregory R. Kim, 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, 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 Company, Inc. as
Depositor
/s/ Paul A. Oyer
By: ___________________________________
Paul A. Oyer,
Financial Vice President and
Treasurer
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/s/ Marvin A. Hawthorne
By: _________________________________
Marvin A. Hawthorne,
Assistant Treasurer
THE BANK OF NEW YORK, not in its
individual capacity but solely as
trustee of the Trust
/s/ Vivian Georges
By: _________________________________
Name: Vivian Georges
Title: Assistant Vice President
THE BANK OF NEW YORK (DELAWARE), not
in its individual capacity but
solely as trustee of the Trust
/s/ Joseph Ernst
By: _________________________________
Name: Joseph Ernst
Title: Assistant Vice President
T. Michael May, not in his
individual capacity, but solely as
trustee of the Trust
/s/ T. Michael May
By: _________________________________
Signature
Paul A. Oyer, not in his individual
capacity, but solely as trustee of
the Trust
/s/ Paul A. Oyer
By: _________________________________
Signature
Marvin A. Hawthorne, not in his
individual capacity, but solely as
trustee of the Trust
/s/ Marvin A. Hawthorne
By: _________________________________
Signature
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