EXHIBIT 4.11
TRUST AGREEMENT
OF
DTE ENERGY TRUST I
THIS TRUST AGREEMENT is made as of November 28, 2001 (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 I (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 Trustees the sum of $10. It is the intention of the parties hereto that
the Issuer Trust created hereby constitute a business trust under Chapter 38 of
Title 12 of the Delaware Code, 12 Del. C. ss. 3801, et seq. (the "Business 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 Business 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 and the Issuer Trustees' 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 Preferred Securities required
to be filed pursuant to the 1933
1
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 Business 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.
2
7. 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).
8. The Sponsor agrees to indemnify each of the Property Trustee and the
Delaware Trustee for, and to hold each of them harmless against, any and all
loss, damage, claim, liability or expense incurred by such Trustee arising out
of or in connection with the acceptance or administration of the Trust, except
to the extent such loss, damage, claim, liability or expense is due to the gross
negligence or bad faith of such Trustee.
3
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/ X.X. Xxxxxx
-----------------------------------
Name: X.X. Xxxxxx
Title: Vice President and Treasurer
The Bank of New York (Delaware),
acting hereunder not in its individual capacity but solely
as Delaware Trustee
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President
The Bank of New York,
acting hereunder not in its individual capacity but solely
as Property Trustee
By: /s/ Xxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Vice President
4
