ENFORCEABLE AGAINST THE BORROWER
2
IN ACCORDANCE WITH THEIR TERMS, SUBJECT TO APPLICABLE BANKRUPTCY, INSOLVENCY,
REORGANIZATION, MORATORIUM OR OTHER LAWS AFFECTING CREDITORS' RIGHTS GENERALLY
AND SUBJECT TO GENERAL PRINCIPLES OF EQUITY, REGARDLESS OF WHETHER CONSIDERED IN
A PROCEEDING IN EQUITY OR AT LAW.
II.
AS OF THE DATE HEREOF AND GIVING EFFECT TO THE TERMS OF THIS
AMENDMENT NO. 1, (I) THERE EXISTS NO DEFAULT, (II) THE REPRESENTATIONS AND
WARRANTIES SET FORTH IN ARTICLE 4 OF THE CREDIT AGREEMENT (OTHER THAN THE
REPRESENTATIONS AND WARRANTIES IN SECTIONS 4.04(B) AND 4.06 OF THE CREDIT
AGREEMENT), AS AMENDED HEREBY, ARE TRUE AND CORRECT IN ALL MATERIAL RESPECTS,
EXCEPT TO THE EXTENT SUCH REPRESENTATIONS AND WARRANTIES RELATE TO ANY EARLIER
DATE, IN WHICH CASE SUCH REPRESENTATIONS AND WARRANTIES SHALL HAVE BEEN TRUE AND
CORRECT ON AND AS OF SUCH EARLIER DATE AND (III) NO MATERIAL SUBSIDIARY
INDEBTEDNESS HAS OCCURRED AND IS CONTINUING.
4.
REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT.
(A)
UPON THE EFFECTIVENESS HEREOF, (I) EACH REFERENCE TO THE CREDIT
AGREEMENT IN THE CREDIT AGREEMENT OR ANY OTHER LOAN DOCUMENT SHALL MEAN AND BE A
REFERENCE TO THE CREDIT AGREEMENT AS AMENDED HEREBY.
(B)
EXCEPT AS SPECIFICALLY AMENDED ABOVE, THE CREDIT AGREEMENT AND ALL
OTHER DOCUMENTS, INSTRUMENTS AND AGREEMENTS EXECUTED AND/OR DELIVERED IN
CONNECTION THEREWITH SHALL REMAIN IN FULL FORCE AND EFFECT AND ARE HEREBY
RATIFIED AND CONFIRMED.
(C)
THE EXECUTION, DELIVERY AND EFFECTIVENESS OF THIS AMENDMENT NO. 1
SHALL NOT OPERATE AS A WAIVER OF ANY RIGHT, POWER OR REMEDY OF THE
ADMINISTRATIVE AGENT OR THE LENDERS, NOR CONSTITUTE A WAIVER OF ANY PROVISION OF
THE CREDIT AGREEMENT OR ANY OTHER DOCUMENTS, INSTRUMENTS AND AGREEMENTS EXECUTED
AND/OR DELIVERED IN CONNECTION THEREWITH.
5.
GOVERNING LAW.
THIS AMENDMENT NO. 1 SHALL BE CONSTRUED IN ACCORDANCE
WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
6.
HEADINGS.
SECTION HEADINGS IN THIS AMENDMENT NO. 1 ARE INCLUDED
HEREIN FOR CONVENIENCE OF REFERENCE ONLY AND SHALL NOT CONSTITUTE A PART OF THIS
AMENDMENT NO. 1 FOR ANY OTHER PURPOSE.
7.
COUNTERPARTS.
THIS AMENDMENT NO. 1 MAY BE EXECUTED BY ONE OR MORE OF
THE PARTIES HERETO ON ANY NUMBER OF SEPARATE COUNTERPARTS, AND ALL OF SAID
COUNTERPARTS TAKEN TOGETHER SHALL BE DEEMED TO CONSTITUTE ONE AND THE SAME
INSTRUMENT.
SIGNATURES DELIVERED BY FACSIMILE OR PDF SHALL HAVE THE SAME FORCE
AND EFFECT AS MANUAL SIGNATURES DELIVERED IN PERSON.
[Signature Pages Follow]
3
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 to be
duly executed by their respective authorized officers as of the day and year
first above written.
HAWAIIAN ELECTRIC INDUSTRIES, INC.,
as a Borrower
By:
/s/ James A. Ajello
Name: James A. Ajello
Title: Executive Vice President, Treasurer and Chief
Financial Officer
By:
/s/ David M. Kostecki
Name: David M. Kostecki
Title: Vice President-Finance, Controller and Chief
Accounting Officer
Signature Page to Amendment No. 1
Hawaiian Electric Industries, Inc.
Credit Agreement dated as of May 7, 2010
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent,