EXHIBIT 4.21
TRUST AGREEMENT
OF
DTE ENERGY TRUST III
THIS TRUST AGREEMENT is made as of September 13, 2002 (this
"Trust Agreement"), among DTE Energy Company, a Michigan corporation, as sponsor
(the "Sponsor"), The Bank of New York (Delaware), a Delaware banking
corporation, as Delaware trustee (the "Delaware Trustee"), and The Bank of New
York, a New York banking corporation, as property trustee (the "Property
Trustee" and, together with the Delaware Trustee, the "Issuer Trustees"). The
Sponsor and the Issuer Trustees hereby agree as follows:
1. The trust created hereby shall be known as DTE Energy Trust
III (the "Issuer Trust"), in which name the Issuer Trustees or the Sponsor, to
the extent provided herein, may conduct the business of the Issuer Trust, make
and execute contracts, and xxx and be sued.
2. The Sponsor hereby assigns, transfers, conveys and sets
over to the Issuer Trust the sum of $1. It is the intention of the parties
hereto that the Issuer Trust created hereby constitute a statutory trust under
Chapter 38 of Title 12 of the Delaware Code, 12 Del. C. ss. 3801, et seq. (the
"Statutory Trust Act"), and that this document constitute the governing
instrument of the Issuer Trust. The Issuer Trustees are hereby authorized and
directed to execute and file a certificate of trust with the Delaware Secretary
of State in accordance with the provisions of the Statutory Trust Act.
3. An amended and restated Trust Agreement satisfactory to
each party to it and substantially in the form to be included as an exhibit to
the 1933 Act Registration Statement (as herein defined), or in such other form
as the parties thereto may approve, will be entered into to provide for the
contemplated operation of the Issuer 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 Trust Agreement, the Issuer
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. Notwithstanding the
foregoing, the Issuer Trustees may take all actions deemed proper as are
necessary to effect the transactions contemplated herein.
4. The Sponsor, as the sponsor of the Issuer Trust, is hereby
authorized and appointed as the Issuer Trust's true and lawful attorney-in-fact
and agent (i) to file with the Securities and Exchange Commission (the
"Commission") and to execute, in the case of the 1933 Act Registration Statement
and 1934 Act Registration Statement (each as herein defined) and any and all
amendments thereto, including pre-effective and post-effective amendments, on
behalf of the Issuer Trust, (a) a Registration Statement (the "1933 Act
Registration Statement"), including pre-effective or post-effective amendments
thereto, with all exhibits thereto, and any other documents that may be required
in connection therewith, relating to the registration under the Securities Act
of 1933, as amended (the "1933 Act"), of the Preferred Securities of the Issuer
Trust, (b) any preliminary prospectus or prospectus or supplement thereto
relating to the
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Preferred Securities required to be filed pursuant to the 1933 Act, and (c) a
Registration Statement on Form 8-A or other appropriate form (the "1934 Act
Registration Statement"), including all pre-effective and post-effective
amendments thereto, with all exhibits thereto, and with any other documents that
may be required in connection therewith, relating to the registration of the
Preferred Securities of the Issuer Trust under the Securities Exchange Act of
1934, as amended; (ii) to file with the New York Stock Exchange, Inc., the
American Stock Exchange LLC, The London Stock Exchange plc, The Luxembourg Stock
Exchange, The Paris Bourse or other stock exchange or securities market, or the
National Association of Securities Dealers (the "NASD"), and execute and verify
on behalf of the Issuer Trust a listing application and all other applications,
statements, certificates, agreements and other instruments, under seal or
otherwise, as shall be necessary or desirable, and do or cause to be done all
such acts and things in the name of and on behalf of the Issuer Trust to meet
the requirements of any such stock exchange, securities market or the NASD's
Nasdaq National Market, or to appear before the appropriate representatives of
committees of any such stock exchange or securities market, in order to cause
the Preferred Securities to be listed on any such stock exchange or securities
market; (iii) to file, execute and verify on behalf of the Issuer 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 or qualify the Preferred Securities for offer
and sale under the securities or "Blue Sky" laws of the various states and
jurisdictions of the United States or under any foreign laws or regulations as
the Sponsor, on behalf of the Issuer Trust, may deem necessary or desirable; and
(iv) to execute, deliver and perform on behalf of the Issuer Trust an
underwriting agreement with one or more underwriters relating to the offering of
the Preferred Securities of the Issuer Trust. In the event that any filing
referred to in clauses (i), (ii) or (iii) above is required by the rules and
regulations of the Commission, the New York Stock Exchange or such other
exchanges or securities markets, the NASD, or the securities or "Blue Sky" laws
or foreign laws or regulations to be executed on behalf of the Issuer Trust by
the Issuer Trustees, the Issuer Trustees are hereby authorized and directed to
join in any such filing and to execute on behalf of the Issuer Trust any and all
of the foregoing, it being understood that the Issuer Trustees shall not be
required to join in any such filing or execute on behalf of the Issuer Trust any
such document unless required by the rules and regulations of the Commission,
the New York Stock Exchange or such other exchange or securities markets, the
NASD, or the securities or "Blue Sky" laws or foreign laws or regulations.
5. This Trust Agreement may be executed in one or more
counterparts.
6. The number of trustees of the Issuer Trust initially shall
each be two and thereafter the number of trustees of the Issuer Trust 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 of the
Issuer Trust; provided, however, that, to the extent required by the Statutory
Trust Act, one trustee of the Issuer Trust 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. Subject to
the foregoing, the Sponsor is entitled to appoint or remove without cause any
trustee of the Issuer Trust at any time. Any trustee of the Issuer Trust may
resign upon thirty days' prior notice to the Sponsor.
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7. The Bank of New York (Delaware), in its capacity as
Delaware Trustee, shall not have the powers or duties of the Issuer Trustees set
forth herein (except as may be required under the Statutory Trust Act) and shall
be an Issuer Trustee hereunder for the sole and limited purpose of fulfilling
the requirements of Section 3807(a) of the Statutory Trust Act.
8. The Sponsor hereby agrees to indemnify, defend and hold
harmless the Issuer Trustees and any of the officers, directors, employees and
agents of the Issuer Trustees (the "Indemnified Persons") from and against any
and all losses, damages, liabilities, claims, actions, suits, costs, expenses,
disbursements (including the reasonable fees and expenses of counsel), taxes and
penalties of any kind and nature whatsoever (collectively, "Expenses"), to the
extent that such Expenses arise out of, or are imposed upon, or are asserted at
any time against, such Indemnified Persons with respect to the performance of
this Trust Agreement, the creation, operation or termination of the Issuer Trust
or the transactions contemplated hereby; provided, however, that the Sponsor
shall not be required to indemnify any Indemnified Person for any Expenses which
are a result of the willful misconduct, bad faith or gross negligence of such
Indemnified Person.
9. 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).
[Signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed as of the day and year first above written.
DTE ENERGY COMPANY,
as Sponsor
By:/s/ Xxxxxx X. Xxxxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Assistant Corporate Secretary
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee
By:/s/ Xxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President
THE BANK OF NEW YORK,
as Property Trustee
By: /s/ Xxxx X. Xxxxxxxxx
----------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Vice President
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