Exhibit 4(a)-6
DECLARATION OF TRUST
OF
WASHINGTON WATER POWER CAPITAL III
DECLARATION OF TRUST, dated as of November 4, 1996
(this "Declaration of Trust"), by and among The Washington Water
Power Company, a Washington corporation, as Sponsor, Xxxxxxxx X.
Xxxxxx, as Regular Trustee, and Wilmington Trust Company, a
Delaware banking corporation, not in their individual capacities
but solely as trustees of the Trust, as defined below (collec-
tively, the "Trustees"). The Sponsor and the Trustees hereby
agree as follows:
1. The trust created hereby shall be known as "Wash-
ington Water Power Capital III" (the "Trust"), in which name the
Trustees, or the Sponsor to the extent provided herein, may
conduct the business of the Trust, make and execute contracts,
and sue and be sued.
2. The Sponsor hereby assigns, transfers, conveys and
sets over to the Trustees the sum of $10. The Trustees hereby
acknowledge receipt of such amount in trust from the Sponsor,
which amount shall constitute the initial trust estate. The
Trustees hereby declare that they will hold the trust estate in
trust for the Sponsor. 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. Section
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3801 et seq., as it may be amended from time to time, or any
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successor legislation (the "Business Trust Act"), and that this
document constitutes the governing instrument of the Trust. The
Trustees hereby are authorized and directed to execute and file
a certificate of trust with the Secretary of State of the State
of Delaware in accordance with the provisions of the Business
Trust Act.
3. The Sponsor and the Trustees will enter into an
Amended and Restated Declaration of Trust, satisfactory to each
such party and substantially in the form to be included as an
exhibit to the 1933 Act Registration Statement (as defined
below), 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 Declaration of Trust,
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.
4. The Sponsor and the Trustees hereby authorize and
direct the Sponsor, as the Sponsor of the Trust, (i) to file with
the Securities and Exchange Commission (the "Commission") and
execute, in each case on behalf of the Trust, (a) a Registration
Statement on Form S-3 (the "1933 Act Registration Statement"),
including any pre-effective or post-effective amendments to the
1933 Act Registration Statement, relating to the registration
under the Securities Act of 1933, as amended, of the Preferred
Securities of the Trust and certain other securities and (b) a
Registration Statement on Form 8-A (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 Section 12(b) of the Securities
Exchange Act of 1934, as amended; (ii) to file with the New York
Stock Exchange (the "Exchange") and execute on behalf of the
Trust a listing application and all other applications, state-
ments, certificates, agreements and other instruments as shall be
necessary or desirable to cause the Preferred Securities to be
listed on the 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 Sponsor, on behalf of the
Trust, may deem necessary or desirable; and (iv) to execute on
behalf of the Trust that certain Underwriting Agreement among the
Trust, the Sponsor and Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx
Incorporated, as representatives of the Underwriters named in
such Underwriting Agreement, substantially in the form included
as an exhibit to the 1933 Act Registration Statement. In the
event that any filing referred to above is required by the rules
and regulations of the Commission, the Exchange or state securi-
ties or blue sky laws, to be executed on behalf of the Trust by
the Trustees, Xxxxxxxx X. Xxxxxx and Xxxxxxx X. Xxxxxx, in
his/her capacity as Trustee of the Trust, is hereby authorized
and, to the extent so required, 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 Wilmington Trust Company in
its capacity as Trustee of the Trust, shall not be required to
join in any such filing or execute on behalf of the Trust any
such document unless required by the rules and regulations of the
Commission, the Exchange or state securities or blue sky laws.
In connection with the filings referred to above, the Sponsor and
each Trustee other than Wilmington Trust Company, solely in
his/her capacity as Trustee of the Trust, hereby constitutes and
appoints Xxxxxxxx X. Xxxxxx and Xxxxxxx X. Xxxxxx, each of them,
as its or his/her true and lawful attorneys-in-fact and agents,
with full power of substitution and resubstitution, for the
Sponsor or such Trustee or in the Sponsor's or such Trustee's
name, place and stead, in any and all capacities, to sign any and
all amendments, including post-effective amendments, to any such
filings, including the 1933 Act Registration Statement and the
1934 Act Registration Statement, and to file the same, with all
exhibits thereto and other documents in connection therewith,
with the Commission, the Exchange and administrators of state
securities or blue sky laws, granting unto said attorneys-in-fact
and agents full power and authority to do and perform each and
every act and thing requisite and necessary to be done in connec-
tion therewith, as fully to all intents and purposes as the
Sponsor or such Trustee might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and
agents or any of them, or their respective substitute or substi-
tutes, shall do or cause to be done by virtue hereof.
5. This Declaration of Trust may be executed in one
or more counterparts.
6. The number of Trustees initially shall be two (2)
and thereafter the number of Trustees shall be such number as
shall be fixed from time to time by a written instrument signed
by the Sponsor which may increase or decrease the number of
Trustees; provided, however, that to the extent required by the
Business Trust Act, one Trustee shall be either a natural person
who 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 and otherwise meets the requirements of
applicable Delaware law. Subject to the foregoing, the Sponsor
is entitled to appoint or remove without cause any Trustee at any
time. The Trustees may resign upon thirty (30) days prior
written notice to Sponsor.
7. Notwithstanding any other provision of this
Declaration of Trust, Wilmington Trust Company, in its capacity
as Trustee of the Trust, shall not be entitled to exercise any of
the powers, nor shall Wilmington Trust Company, in its capacity
as Trustee or Property Trustee of the Trust, have any duties and
responsibilities of the other Trustees described in this Declara-
tion of Trust. Wilmington Trust Company, in its capacity as
Trustee of the Trust, shall be a Trustee for the sole and limited
purpose of fulfilling the requirements of Section 3807 of the
Business Trust Act.
8. No Trustee, any affiliate of any Trustee or any
officers, directors, shareholders, members, partners, employees,
representatives or agents of any Trustee or any employee or agent
of the Trust or its affiliates (each, an "Indemnified Person" and
collectively, the "Indemnified Persons"), shall be liable,
responsible or accountable, in damages or otherwise, to the Trust
or any other Indemnified Person for any loss, damage or claim
incurred by reason of any act or omission performed or omitted by
such Indemnified Person in good faith on behalf of the Trust and
in a manner such Indemnified Person reasonably believed to be
within the scope of the authority conferred on such Indemnified
Person by this Declaration of Trust or by law, except that an
Indemnified Person shall be liable for any such loss, damage or
claim incurred by reason of such Indemnified Person's gross
negligence or willful misconduct with respect to such acts or
omissions.
9. To the fullest extent permitted by applicable law,
the Sponsor shall indemnify and hold harmless each Indemnified
Person from and against any loss, damage or claim incurred by
such Indemnified Person by reason of any act or omission per-
formed or omitted by such Indemnified Person in good faith on
behalf of the Trust and in a manner such Indemnified Person
reasonably believed to be within the scope of the authority
conferred on such Indemnified Person by this Declaration of
Trust, except that no Indemnified Person shall be entitled to be
indemnified in respect of any loss, damage or claim incurred by
such Indemnified Person by reason of gross negligence or willful
misconduct with respect to such acts or omissions.
10. To the fullest extent permitted by applicable law,
expenses (including legal fees) incurred by an Indemnified Person
in defending any claim, demand, action, suit or proceeding shall
from time to time be advanced by the Sponsor prior to the final
disposition of such claim, demand, action, suit or proceeding
upon receipt by the Sponsor of an undertaking by or on behalf of
the Indemnified Person to repay such amount if it shall be
determined that the Indemnified Person is not entitled to be
indemnified as authorized in Section 9.
11. Wilmington Trust Company may engage in or possess
an interest in other business ventures of any nature or descrip-
tion, independently or with others, similar or dissimilar to the
business of the Trust, and the Trust, the Sponsor and the other
Trustees shall have no rights by virtue of this Declaration of
Trust in and to such independent ventures of the income or
profits derived therefrom, and the pursuit of any such venture,
even if competitive with the business of the Trust, shall not be
deemed wrongful or improper. Wilmington Trust Company shall not
be obligated to present any particular investment or other
opportunity to the Trust even if such opportunity is of a charac-
ter that, if presented to the Trust, could be taken by the Trust,
and Wilmington Trust Company shall have the right to take for its
own account (individually or as a partner or fiduciary) or to
recommend to others and such particular investment or other
opportunity. Wilmington Trust Company may engage or be interest-
ed in any financial or other transactions with the Sponsor or any
affiliate of the Sponsor, or may act on any committee or body of
holders of securities or other obligations of the Sponsor or its
affiliates.
12. This Declaration of Trust 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
Declaration of Trust to be duly executed as of the day and year
first above written.
THE WASHINGTON WATER POWER COMPANY, XXXXXXXX X. XXXXXX,
as Sponsor not in his individual
capacity but solely as
Regular Trustee
By: /s/ Xxxxxxx X. Xxxxxx /s/ Xxxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Assistant Treasurer
WILMINGTON TRUST COMPANY,
not in its individual
capacity but solely as Trustee
By: /s/ Xxxxxx X. XxxXxxxxx
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Name: Xxxxxx X. XxxXxxxxx
Title: Assistant Vice President
