Exhibit 3(e)
TRUST AGREEMENT
OF TXU EUROPE CAPITAL I
This TRUST AGREEMENT of TXU Europe Capital I (the "Trust"), dated as
of December 22, 1999, among (i) TXU Business Services Company, a Texas
corporation (the "Depositor"), (ii) The Bank of New York, a New York banking
corporation (the "Property Trustee"), as trustee of the Trust, (iii) The Bank of
New York (Delaware), a Delaware banking corporation (the "Delaware Trustee"), as
trustee of the Trust, and (iv) Xxxxx Xxxxxxxx, an individual employed by the
Depositor or one of its affiliates, as trustee of the Trust (the "Administrative
Trustee") (each of such trustees in (ii), (iii) and (iv) a "Trustee" and
collectively, the "Trustees"). The Depositor and the Trustees hereby agree as
follows:
1. The trust created hereby shall be known as "TXU Europe Capital I",
in which name the Trustees, or the Depositor to the extent provided herein, may
conduct the business of the Trust, make and execute contracts, and xxx and be
sued.
2. The Depositor hereby assigns, transfers, conveys and sets over to
the Trustees the sum of $85. The Trustees hereby acknowledge receipt of such
amount in trust from the Depositor, which amount shall constitute the initial
trust estate. The Trustees hereby declare that they will hold the trust estate
in trust for the Depositor. 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. ss.3801 et seq., as amended (the "Business Trust
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Act"), and that this document constitutes 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
accordance with the provisions of the Business Trust Act.
3. The Depositor and the Trustees will enter into an amended and
restated Trust Agreement, satisfactory to each such party and substantially in
the form to be 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 Trust Securities and the
Control Certificate referred to therein. Prior to the execution and delivery of
such amended and restated Trust Agreement, the Trustees shall not have any duty
or obligation hereunder or in 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 Administrative Trustee, and the Depositor, acting singly or
together, (and, in the case of (iv) below, Xxxxxx X. Xxxxx, Xx., as authorized
representative of the Trust) are hereby authorized (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-1 (the "1933
Act Registration Statement") (including any pre-effective or post-effective
amendments thereto), relating to the registration under the Securities Act of
1933, as amended, of the Preferred Trust 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 Trust
Securities of the Trust under Section 12(b) or 12(g) of the Securities Exchange
Act of 1934, as amended; (ii) to prepare and file with The New York Stock
Exchange, Inc. (the "NYSE") and with the Luxembourg Stock Exchange (the
"Luxembourg Exchange") and execute on behalf of the Trust listing applications
and all other applications, statements, certificates, agreements and other
instruments as shall be necessary or desirable to cause the Preferred Trust
Securities to be listed on the NYSE and on the Luxembourg 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 Trust Securities under the securities or blue sky laws of
such jurisdictions as the Depositor or the Administrative Trustee, on behalf of
the Trust, may deem necessary or desirable and (iv) to execute and deliver, on
behalf of the Trust, an underwriting agreement in respect of the sale of the
Preferred Trust Securities in such form as the Depositor shall approve. In the
event that any filing referred to above is required by the rules and regulations
of the Commission, the NYSE, the Luxembourg Exchange or state securities or blue
sky laws, to be executed on behalf of the Trust by one or more of the Trustees,
each of the Trustees, in its or 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 the Property Trustee and the Delaware Trustee, in their
capacities as trustees of the Trust, respectively, 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 NYSE, the
Luxembourg Exchange or state securities or blue sky laws. In connection with the
filings referred to above, the Depositor and each Trustee, solely in its or her
capacity as trustee of the Trust, hereby constitutes and appoints Xxxxxx X.
Xxxxxxxxxx, Xxxxx X. Xxxxxxx and Xxxxxx X. Xxxxx, Xx., and each of them, as its
or his true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for the Depositor or such Trustee or in the
Depositor's or such Trustee's name, place and stead, in any and all capacities,
to sign any and all filings and amendments (including post-effective amendments)
to any of 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 NYSE, the
Luxembourg Exchange and securities or blue sky administrators, 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 Depositor 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
substitutes, shall do or cause to be done by virtue hereof.
5. This Trust Agreement may be executed in one or more counterparts.
6. The number of Trustees initially shall be three (3) 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 Depositor 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
Depositor is entitled to appoint or remove without cause any Trustee at any
time. Any one or more of the Trustees may resign upon thirty days prior written
notice to Depositor.
7. The Depositor shall have the right to dissolve the Trust at any
time prior to the issuance of any Preferred Trust Security. Upon dissolution of
the Trust pursuant to this Section 7, each of the Administrative Trustees,
acting singly, is hereby authorized to prepare, execute and file a Certificate
of Cancellation in respect of the Trust with the Secretary of State of the State
of Delaware.
8. This Trust Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to conflict
of laws principles).
9. The Depositor is hereby authorized and directed, on behalf of the
Trust, to execute and deliver the Agreement of Limited Partnership of TXU Europe
Funding I, L.P., a Delaware limited partnership (the "Partnership Agreement"),
and to take any and all action necessary under the Partnership Agreement for the
Trust to become a limited partner of TXU Europe Funding I, L.P., including the
making of any original contribution thereto.
IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed as of the day and year first above written.
TXU BUSINESS SERVICES COMPANY,
as Depositor
/s/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
Title: Assistant Treasurer
THE BANK OF NEW YORK,
as Trustee
/s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Vice President
THE BANK OF NEW YORK
(DELAWARE), as Trustee
/s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Authorized Signatory
Xxxxx Xxxxxxxx, as Trustee
/s/ Xxxxx Xxxxxxxx
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