Exhibit 4(q)
HAWAIIAN ELECTRIC INDUSTRIES, INC.
Officers' Certificate Pursuant to
Sections 2.01 and 13.06 of the Indenture
The undersigned hereby certify, pursuant to the Junior
Indenture, dated as of February 1, 1997 (the "Indenture"), between Hawaiian
Electric Industries, Inc., a Hawaii corporation (the "Company"), and The Bank of
New York, a New York banking corporation, as Trustee (the "Trustee"), that:
A. There has been established pursuant to Board
Resolutions duly adopted by the Board of Directors of the Company at its meeting
held on __________ ___, 200__, a series of Debentures to be issued under the
Indenture, which Debentures shall be in the form and shall include the
Certificate of Authentication attached hereto and shall have the following
(terms defined in the Indenture but not herein shall have the meanings given to
such terms in the Indenture):
1. The title of the Debentures of such series
is "Junior Subordinated Debentures, Series ___, Due __________" (the
"Series ___ Debentures");
2. The limit upon the aggregate principal
amount of the Series ___ Debentures which may be authenticated and
delivered under the Indenture (except for the Series ___ Debentures
authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Series ___ Debentures) is
$_______________;
3. The Series ___ Debentures will be issued at
___% of their principal amount. The date on which the principal of the
Series ___ Debentures is payable shall be __________ ___, _____ (the
"Stated Maturity");
4. The Series ___ Debentures will bear interest
at the rate of _____% per annum (the "Stated Rate");
5. The principal of (and premium, if any) and
interest on the Series ___ Debentures shall be payable and the Series
___ Debentures shall be surrendered for registration of transfer or
exchange at the offices and agencies of the Company maintained for that
purpose in the Borough of Manhattan, the City and State of New York, or
at such other location or locations selected by the Company, agreed to
by the Trustee and consistent with the Indenture. Payment of the
principal (and premium, if any) and interest due with respect to the
Series ___ Debentures on any date on which the principal thereof
becomes due and payable by its terms (whether at the Stated Maturity,
upon earlier redemption or acceleration or otherwise) ( "Maturity")
will be made in immediately available funds upon surrender of the
Series ___ Debentures at the place or
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places provided hereinabove, provided that the Series ___ Debentures
are presented to the Paying Agent in time for the Paying Agent to make
such payments in such funds in accordance with its normal procedures.
Payments of interest other than at Maturity will be made at the place
or places provided hereinabove; provided that payment of interest on
Debentures that are not registered to a Hawaiian Electric Industries
Capital Trust may be made at the option of the Company by check mailed
to the address of the Person entitled thereto as it appears on the
Debenture Register or by wire transfer to an account appropriately
designated by the Person entitled thereto as it appears on the
Debenture Register;
6. Interest shall accrue from the original date
of issuance of the Series ___ Debentures until the principal thereof
becomes due and payable, and on any overdue principal and, to the
extent that payment of such interest is enforceable under applicable
law, on any overdue installment of interest at the Stated Rate, payable
quarterly in arrears on ________ ___, ________ ___, __________ ___, and
___________ ___ of each year (each, an "Interest Payment Date"),
commencing on __________ ___, 200__ to holders of record as they appear
on the Debenture Register on the _____ day of the month in which an
Interest Payment Date shall occur;
7. The Company shall have the right at any time
during the term of the Series ___ Debentures, from time to time, to
extend the interest payment period of the Series ___ Debentures for a
period (including any extensions thereof) not exceeding ____
consecutive quarters (each, an "Extension Period"), during which
Extension Period interest will accumulate and compound quarterly (to
the extent permitted by applicable law) at the Stated Rate and the
Company shall have the right to make partial payments of interest on
any Interest Payment Date, and at the end of which Extension Period the
Company shall pay all interest then accrued and unpaid (together with
Additional Interest thereon to the extent that payment of such interest
is permitted by applicable law). Prior to the termination of any such
Extension Period, the Company may further extend the interest payment
period, provided that such Extension Period together with all such
previous and further extensions thereof shall not exceed ____
consecutive quarters or extend beyond the Stated Maturity. Upon the
termination of any such Extension Period and upon the payment of all
accrued and unpaid interest and any Additional Interest then due, the
Company may select a new Extension Period, subject to the foregoing
requirements. No interest shall be due and payable during an Extension
Period except at the end thereof. The Company shall give the holders of
Series ___ Debentures and the Trustee written notice of its selection
of an Extension Period at least one Business Day prior to [the earlier
of (i)] the next Interest Payment Date [and (ii) the date Hawaiian
Electric Industries Capital Trust ___, a Delaware statutory trust (the
"Trust"), is required to give notice to the New York Stock Exchange or
other applicable self-regulatory organization or to holders of its
Trust Preferred Securities of the record date or the date distributions
thereon are payable, but in any event not less than one Business Day
prior to such record date];
8. At any time on or after __________, _____,
the Company shall have the right to redeem the Series ___ Debentures,
in whole or in part, from time to time,
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at a redemption price equal to ___% of the principal amount of the
Series ___ Debentures to be redeemed plus accrued but unpaid interest,
including any Additional Interest, if any, to the redemption date (the
"Redemption Price") upon not less than 30 nor more than 60 days'
notice. [Add any trust related redemption provisions.]
9. There is no obligation of the Company to
redeem or purchase the Series ___ Debentures pursuant to any sinking
fund or analogous provision, or at the option of the holder thereof;
10. The form of Series ___ Debentures, including
the form of Certificate of Authentication, is attached hereto;
11. The Series ___ Debentures will [not] be
issued as a Global Debenture and there shall [not] be a Depository for
a Global Debenture for the Series ___ Debentures;
12. The Series ___ Debentures will not be
deposited as partnership assets in any partnership;
13. The Series A Debentures will [not] be
deposited as trust assets in the Trust;
14. The Series ___ Debentures [will only] [will
not] be sold to Persons who are directly or indirectly owned or
controlled by the Company and who are Affiliates of the Company;
15. So long as Series ____ Debentures are held
by the Trust, the right of any Holder of Trust Preferred Securities to
receive payment of the principal of and premium (if any) or interest on
the Debentures held by such Holder, on or after the respective due
dates expressed in the Debentures (in the case of interest, as the same
may be extended pursuant to Section 7 of this Certificate) or any
Redemption Date, is absolute and unconditional and such Holder shall
have the right to bring suit directly against the Company for the
enforcement of any such payment on or after such respective dates,
which right shall not be impaired or affected adversely without the
consent of such Holder; and
16. In case of any conflict between this
certificate and the Series ___ Debentures in the form attached hereto,
or between the above-mentioned Board Resolutions and the Series ___
Debentures in such forms, the Series ___ Debentures shall control.
B. Each of the undersigned has read the Indenture,
including the provisions of Sections 2.01 and 13.06 thereof and the definitions
relating thereto, and the Board Resolutions referred to above. In the opinion of
each of the undersigned, he or she has made such examination or investigation as
is necessary to enable him or her to express an informed opinion as to whether
or not all conditions precedent provided in the Indenture relating to the
establishment of the title and terms of a series of Debentures under the
Indenture, designated as the Series ___ Debentures in this Officers'
Certificate, and to the authentication and delivery by the Trustee of the Series
___ Debentures, have been complied with. In the opinion of the undersigned, all
such conditions precedent have been complied with.
IN WITNESS WHEREOF, the undersigned has hereunto executed this
Officers' Certificate as of the _____ day of __________, __________.
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HAWAIIAN ELECTRIC INDUSTRIES, INC.
By: ______________________________________
Name:
Title:
By: ______________________________________
Name:
Title:
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(FORM OF FACE OF DEBENTURE)
No. __________
HAWAIIAN ELECTRIC INDUSTRIES, INC.
_____% JUNIOR SUBORDINATED DEBENTURE, SERIES ___,
DUE _____
$_______________ PRINCIPAL AMOUNT
HAWAIIAN ELECTRIC INDUSTRIES, INC., a Hawaii corporation (the
"Company", which term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
___________________ or registered assigns, the principal sum of
_____________________ Dollars ($_______________) on __________, _____ (the
"Stated Maturity"), and to pay interest on said principal sum from the original
date of issuance or from the most recent interest payment date (each such date,
an "Interest Payment Date") to which interest has been paid or duly provided
for, quarterly (subject to deferral as set forth herein) in arrears on ________
___, __________ ___, ____________ ___ and ___________ ___ of each year
commencing _________ ___, 200__, at the rate of _____% per annum (the "Stated
Rate"), plus Additional Interest, if any, until the principal hereof shall have
become due and payable, and on any overdue principal and premium, if any. The
amount of interest payable on any Interest Payment Date shall be computed on the
basis of a 360-day year of twelve 30-day months, except that, for any period
shorter than a full 90-day quarter, interest will be computed on the basis of
the actual number of days elapsed in such 90-day quarter. In the event that any
date on which interest is payable on this Debenture is not a Business Day (as
defined in the Indenture), then payment of interest payable on such date will be
made on the next succeeding day that is a Business Day (and without any interest
or other payment in respect of any such delay), except that, if such Business
Day is in the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day (without any reduction in interest or other
payments in respect of such early payment), in each case with the same force and
effect as if made on such date. The interest installment so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in the Indenture referred to below, be paid to the person in whose name
this Debenture (or one or more Predecessor Debentures, as defined in the
Indenture) is registered at the close of business on the regular record date for
such interest installment.
Any interest on this Debenture which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date for
Debentures of the same series (herein called "Defaulted Interest") shall
forthwith cease to be payable to the registered holder on the relevant regular
record date by virtue of having been such holder; and such Defaulted Interest
shall be paid by the Company, at its election, as provided in clause (1) or
clause (2) below:
(1) The Company may make payment of any Defaulted Interest on this
Debenture to the Person or Persons in whose names this Debenture (or one
or more Predecessor Debentures) are registered at the close of business on
a special record date
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for the payment of such Defaulted Interest, which shall be fixed in the
following manner: the Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on this Debenture and the
date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the
date of the proposed payment, such money when deposited to be held in
trust for the benefit of the persons entitled to such Defaulted Interest
as in this clause provided. Thereupon the Trustee shall fix a special
record date for the payment of such Defaulted Interest which shall not be
more than 15 nor less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee of the
notice of the proposed payment. The Trustee shall promptly notify the
Company of such special record date and, in the name and at the expense of
the Company, shall cause notice of the proposed payment of such Defaulted
Interest and the special record date therefor to be mailed, first class
postage prepaid, to each Debentureholder at his or her address as it
appears in the Debenture Register, not less than 10 days prior to such
special record date. Notice of the proposed payment of such Defaulted
Interest and the special record date therefor having been mailed as
aforesaid, such Defaulted Interest shall be paid to the person or persons
in whose names this Debenture (or one or more Predecessor Debentures) is
registered on such special record date and shall be no longer payable
pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest on this
Debenture in any other lawful manner not inconsistent with the
requirements of any securities exchange on which this Debenture may be
listed, and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the proposed payment
pursuant to this clause, such manner of payment shall be deemed
practicable by the Trustee.
The Company shall have the right at any time during the term of this
Debenture, from time to time, to extend the interest payment period of this
Debenture for a period (including any extensions thereof) not exceeding ____
consecutive quarters (each, an "Extension Period"), during which Extension
Period interest will accumulate and compound quarterly (to the extent permitted
by applicable law) at the Stated Rate and the Company shall have the right to
make partial payments of interest on any Interest Payment Date, and at the end
of which Extension Period the Company shall pay all interest then accrued and
unpaid (together with Additional Interest thereon to the extent that payment of
such interest is permitted by applicable law). Prior to the termination of any
such Extension Period, the Company may further extend the interest payment
period, provided that such Extension Period together with all such previous and
further extensions thereof shall not exceed ____ consecutive quarters or extend
beyond the Stated Maturity. Upon the termination of any such Extension Period
and upon the payment of all accrued and unpaid interest and any Additional
Interest then due, the Company may select a new Extension Period, subject to the
foregoing requirements. No interest shall be due and payable during an Extension
Period except at the end thereof. The Company shall give the holder of this
Debenture and the Trustee written notice of its selection of an Extension Period
at least one Business Day prior to [the earlier of (i)] the next Interest
Payment Date [and (ii) the date
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[Hawaiian Electric Industries Capital Trust ___, a Delaware statutory trust (the
"Trust"),] is required to give notice to the New York Stock Exchange or other
applicable self-regulatory organization or to holders of its Trust Preferred
Securities of the record date or the date such distributions are payable, but in
any event not less than one Business Day prior to such record date].
The principal of (and premium, if any) and interest on this
Debenture shall be payable and this Debenture shall be surrendered for
registration of transfer or exchange at the offices and agencies of the Company
maintained for that purpose in the Borough of Manhattan, the City and State of
New York, or at such other location or locations selected by the Company, agreed
to by the Trustee and consistent with the Indenture. Payment of the principal
(and premium, if any) and interest due with respect to this Debenture on any
date on which the principal hereof becomes due and payable by its terms (whether
at the Stated Maturity, upon earlier redemption or acceleration or otherwise)
("Maturity") will be made in immediately available funds upon surrender of this
Debenture at the place or places provided hereinabove, provided that this
Debenture is presented to the Paying Agent in time for the Paying Agent to make
such payments in such funds in accordance with its normal procedures. Payments
of interest other than at Maturity will be made at the place or places provided
hereinabove; provided that payment of interest on this Debenture if not
registered to a Hawaiian Electric Industries Capital Trust may be made at the
option of the Company by check mailed to the address of the Person entitled
thereto as it appears on the Debenture Register or by wire transfer to an
account appropriately designated by the Person entitled thereto as it appears on
the Debenture Register.
The indebtedness evidenced by this Debenture is, to the extent
provided in the Indenture, subordinate and junior in right of payment to the
prior payment in full of all Senior Indebtedness, and this Debenture is issued
subject to the provisions of the Indenture with respect thereto. Each holder of
this Debenture, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his, her or its behalf to
take such action as may be necessary or appropriate to acknowledge or effectuate
the subordination so provided and (c) appoints the Trustee his or her
attorney-in-fact for any and all such purposes. Each holder hereof, by his, her
or its acceptance hereof, hereby waives all notice of the acceptance of the
subordination provisions contained herein and in the Indenture by each holder of
Senior Indebtedness, whether now outstanding or hereafter incurred, and waives
reliance by each such holder of Senior Indebtedness upon said provisions.
This Debenture shall not be entitled to any benefit under the
Indenture hereinafter referred to, be valid or become obligatory for any purpose
until the Certificate of Authentication hereon shall have been signed by or on
behalf of the Trustee by manual signature.
The provisions of this Debenture are continued on the reverse side
hereof and such continued provisions shall for all purposes have the same effect
as though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to be
executed.
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IN WITNESS WHEREOF, the Company has caused this instrument to be executed.
Dated: HAWAIIAN ELECTRIC INDUSTRIES, INC.
By: ____________________________________
Name:
Title:
By: ____________________________________
Name:
Title:
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(FORM OF REVERSE OF DEBENTURE)
This Debenture is one of a duly authorized series of
Debentures of the Company (herein sometimes referred to as the "Debentures"),
limited in aggregate principal amount to $_______________, all issued or to be
issued in one or more series under and pursuant to a Junior Indenture dated as
of February 1, 1997 (as it may be amended or supplemented from time to time, the
"Indenture") duly executed and delivered between the Company and The Bank of New
York, as Trustee (the "Trustee", which term includes any successor trustee under
the Indenture), and pursuant to an Officers' Certificate dated __________, _____
(the "Officers' Certificate") duly executed by _______________, _______________,
and _______________, _______________, of the Company, to which Indenture and
said Officers' Certificate thereto reference is hereby made for a description of
the rights, limitations of rights, obligations, duties and immunities thereunder
of the Trustee, the Company and the holders of the Debentures and of the terms
upon which the Debentures are, and are to be, authenticated and delivered. By
the terms of the Indenture, the Debentures are issuable in series that may vary
as to amount, date of maturity, rate of interest and in other respects as
provided in the Indenture.
At any time on or after __________, _____, the Company shall have
the right to redeem the Debentures of this series, in whole or in part, from
time to time, at a redemption price equal to ___% of the principal amount of
Debentures to be redeemed plus accrued but unpaid interest, including any
Additional Interest, if any, to the redemption date (the "Redemption Price")
upon not less than 30 nor more than 60 days' notice.
[Add any trust related redemption provisions.]
In the event of redemption of this Debenture in part only, a new
Debenture or Debentures for the unredeemed portion hereof will be issued in the
name of the holder hereof upon the cancellation hereof.
In case an Event of Default with respect to the Debentures of this
series shall have occurred and be continuing, the principal of all of the
Debentures of this series may be declared, and upon such declaration shall
become, due and payable, in the manner, with the effect and subject to the
conditions provided in the Indenture.
The Indenture contains provisions for satisfaction and discharge at
any time of the entire indebtedness of this Debenture upon compliance by the
Company with certain conditions set forth in the Indenture.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the holders of not less than a majority in
aggregate principal amount of the Debentures of each series affected at the time
Outstanding [(and such consent of the holders of the Trust Preferred Securities
and the Trust Common Securities of the Trust as may be required under the Trust
Agreement of the Trust)] to modify the Indenture in a manner affecting the
rights of the holders of the Debentures of such series; provided, however, that
no such modification may, without the consent of the holder of each Debenture
[(and such consent of the holders of the Trust Preferred Securities and the
Trust Common Securities of the Trust as may be required
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under the Trust Agreement of the Trust)] then Outstanding and affected thereby,
(i) extend the fixed maturity of any Debentures of any series, or reduce the
principal amount thereof (including in the case of a discounted Debenture the
amount payable thereon in the event of acceleration or the amount provable in
bankruptcy) or any premium thereon, or reduce the rate or extend the time of
payment of interest thereon, or reduce any amount payable upon the redemption
thereof, or make the principal of or interest or premium, if any, on the
Debentures of such series payable in any coin or currency other than that
provided in the Debentures of such series, or impair or affect the right of any
Debentureholder to institute suit for the payment thereof or the right of
prepayment, if any, at the option of the Debentureholder, (ii) reduce the
aforesaid percentage of Debentures of such series, the holders of which are
required to consent to any such modification, or (iii) otherwise adversely
affect the interest of the holders of the Debentures of such series.
No reference herein to the Indenture and no provision of this
Debenture or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
premium, if any, and interest on this Debenture at the time and place and at the
rate and in the currency herein prescribed, in accordance with the terms of the
Indenture, this Debenture and the Officers' Certificate.
As provided in the Indenture and subject to certain limitations
therein set forth, this Debenture is transferable by the registered holder
hereof on the Debenture Register of the Company, upon surrender of this
Debenture for registration of transfer at the office or agency provided by the
Company for that purpose accompanied by a written instrument or instruments of
transfer in form satisfactory to the Company or the Trustee duly executed by the
registered holder hereof or such holder's attorney duly authorized in writing,
and thereupon one or more new Debentures of authorized denominations and for the
same aggregate principal amount and series will be issued to the designated
transferee or transferees. No service charge will be made for any such transfer,
but the Company may require payment of a sum sufficient to cover any tax or
other governmental charge payable in relation thereto, subject to certain
limitations set forth in the Indenture.
Prior to due presentment for registration of transfer of this
Debenture, the Company, the Trustee, any Paying Agent and the Debenture
Registrar may deem and treat the registered holder hereof as the absolute owner
hereof (whether or not this Debenture shall be overdue and notwithstanding any
notice of ownership or writing hereon made by anyone other than the Debenture
Registrar) for the purpose of receiving payment of or on account of the
principal hereof and premium, if any, and interest due hereon and for all other
purposes, and neither the Company nor the Trustee nor any paying agent nor any
Debenture Registrar shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of or the
interest on this Debenture, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture, against any
incorporator, stockholder, officer or director, past, present or future, as
such, of the Company or of any predecessor or successor corporation, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the acceptance
hereof and as part of the consideration for the issuance hereof, expressly
waived and released.
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The Debentures of this series are issuable only in registered form
without coupons in denominations of $_____ and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations herein and therein
set forth, the Debentures of this series so issued are exchangeable for a like
aggregate principal amount of Debentures of this series of a different
authorized denomination, as requested by the holder surrendering the same.
All terms used in this Debenture that are defined in the Indenture
and the Officers' Certificate shall have the meanings assigned to them in the
Indenture and the Officers' Certificate.
THIS DEBENTURE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES
THEREOF.
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(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Debentures of the series designated herein referred to
in the within-mentioned Indenture and Officers' Certificate.
THE BANK OF NEW YORK
as Trustee
By: __________________________
Authorized Officer
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Debenture to:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(INSERT ASSIGNEE'S SOCIAL SECURITY OR TAX IDENTIFICATION NUMBER)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(INSERT ADDRESS AND ZIP CODE OF ASSIGNEE)
and irrevocably appoints
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
agent to transfer this Debenture on the books of the Company. The agent may
substitute another to act for him or her.
Date:
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Signature:
-----------------------------------
(SIGN EXACTLY AS YOUR NAME APPEARS IN THIS DEBENTURE)
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