Exhibit 4.14
DECLARATION OF TRUST, dated as of November 5, 1997, between The AES
Corporation, a Delaware corporation, as Sponsor, and The First National Bank of
Chicago, not in its individual capacity but solely as trustee (the "PROPERTY
TRUSTEE"), First Chicago Delaware Inc., not in its individual capacity but
solely as trustee (the "DELAWARE TRUSTEE"), and William R. Luraschi, Willard
Hoagland and Barry J. Sharp, each not in his individual capacity but solely as
trustee (the Property Trustee, Delaware Trustee and each such individual as
trustee, collectively the "TRUSTEES"). The Sponsor and the Trustees hereby agree
as follows:
1. The trust created hereby shall be known as "AES TRUST V", 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
Trust the sum of $10. The Trust hereby acknowledges receipt of such amount in
trust from the Sponsor, which 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. Code ss. 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
Secretary of State of the State of Delaware in the form attached hereto. The
Trust is hereby established by the Sponsors and the Trustees for the purposes of
(i) issuing preferred securities representing undivided beneficial interests in
the assets of the Trust ("PREFERRED SECURITIES") in exchange for cash and
investing the proceeds thereof in junior subordinated debentures of the Sponsor,
(ii) issuing and selling common securities representing undivided beneficial
interest in the assets of the Trust to the Sponsor in exchange for cash and
investing the proceeds thereof in additional junior subordinated debentures of
the Sponsor and, (iii) engaging in such other activities as are necessary,
convenient or incidental thereto.
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 included as an exhibit to the 1933 Act Registration Statement referred to
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 to 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 prepare and 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 such
Registration Statement, relating to the registration under the Securities Act of
1933, as amended, of the Preferred Securities of the Trust 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 prepare and file with
the New York Stock 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; (iii) to prepare and
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 negotiate the terms of and execute on behalf of the Trust
an underwriting agreement among the Trust, the Sponsor and any underwriter,
dealer or agent relating to the Preferred Securities, substantially in the form
included as Exhibit 1.3 to the 1933 Act Registration Statement. 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 state
securities or blue sky laws, to be executed on behalf of the Trust by the
Trustees, William R. Luraschi, Willard Hoagland and Barry J. Sharp, 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 First National Bank of Chicago and First
Chicago Delaware Inc., in their capacities as Trustees 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 New York Stock Exchange or state securities or blue sky laws. In connection
with all of the foregoing, the Sponsor and each Trustee, solely in its capacity
as Trustee of the Trust, hereby constitutes and appoints Willard Hoagland, Diane
Crockett, William R. Luraschi, Dennis W. Bakke and Barry J. Sharp, and each of
them, his, her or its, as the case may be, true and lawful attorneys-in-fact,
and agents, with full power of substitution and resubstitution, for the Sponsor
or such Trustee and in the Sponsor's or such
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Trustee's name, place and stead, in any and all capacities, to sign and file (i)
any and all amendments (including post-effective amendments) to the 1933 Act
Registration Statement and the 1934 Act Registration Statement with all exhibits
thereto, and other documents in connection therewith, and (ii) a registration
statement, and any and all amendments thereto, relating thereto filed pursuant
to Rule 462(b) under the Securities Act of 1933, as amended with the Commission,
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
connection 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 or his or her
substitute or substitutes, 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 five (5) 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 the number of Trustees shall in no
event be less than five (5); and provided, further that to the extent required
by the Business Trust Act, one Trustee shall either be 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 meets other
requirements imposed by applicable 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 days prior notice to the Sponsor.
7. First Chicago Delaware Inc., in its capacity as Trustee, shall not have
any of the powers or duties of the Trustees set forth herein and shall be a
Trustee of the Trust for the sole purpose of satisfying the requirements of
section 3807 of the Business Trust Act.
8. The Trust shall terminate before the issuance of any Preferred
Securities at the election of the Sponsor.
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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 AES Corporation,
as Sponsor
By:/s/ William R. Luraschi
-----------------------------------------
Name: William R. Luraschi
Title: General Counsel and Secretary
The First National Bank of
Chicago, not in its individual
capacity but solely as Property Trustee
By:/s/ Melissa G. Weisman
-----------------------------------------
Name: Melissa G. Weisman
Title: Vice President
First Chicago Delaware Inc.,
not in its individual capacity
but solely as Delaware Trustee
By:/s/ Melissa G. Weisman
-----------------------------------------
Name: Melissa G. Weisman
Title: Vice President
/s/ William R. Luraschi
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William R. Luraschi,
not in his individual capacity
but solely as Trustee
/s/ Willard Hoagland
--------------------------------------------
Willard Hoagland,
not in his individual capacity
but solely as Trustee
/s/ Barry J. Sharp
--------------------------------------------
Barry J. Sharp,
not in his individual capacity
but solely as Trustee
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