EXHIBIT 4.7
DECLARATION OF TRUST, dated as of November 1, 1996, 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 Xxxxxxx X.
Xxxxxxxx, Xxxxxxx Xxxxxxxx and Xxxxx X. Xxxxx, 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 II",
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 xxx 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. Code Section 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, Xxxxxxx X. Xxxxxxxx, Xxxxxxx Xxxxxxxx
and Xxxxx X. Xxxxx, 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 Xxxxxxx Xxxxxxxx,
Xxxxx Xxxxxxxx, Xxxxxxx X. Xxxxxxxx, Xxxxxx X. Xxxxx and Xxxxx X. Xxxxx,
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 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.
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/ Xxxxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: General Counsel and
Secretary
The First National Bank of
Chicago, not in its individual
capacity but solely as
Property Trustee
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President and
Trust Counsel
First Chicago Delaware Inc.,
not in its individual capacity
but solely as Delaware Trustee
By: /s/ Xxxxx X. Xxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
/s/ Xxxxxxx X. Xxxxxxxx
-------------------------------
Xxxxxxx X. Xxxxxxxx,
not in his individual capacity
but solely as Trustee
/s/Xxxxxxx Xxxxxxxx
-------------------------------
Xxxxxxx Xxxxxxxx,
not in his individual capacity
but solely as Trustee
/s/ Xxxxx X. Xxxxx
-------------------------------
Xxxxx X. Xxxxx,
not in his individual capacity
but solely as Trustee
