EXHIBIT 2.5
PREFERRED SECURITIES GUARANTEE AGREEMENT
DTE Energy Trust I
Dated as of January 15, 2002
CROSS REFERENCE TABLE(1)
Section of Trust Indenture Act
of 1939, as amended Section of Agreement
310(a) ..................................................4.1(a)
310(b) .....................................................2.8
310(c) ............................................Inapplicable
311(a) .....................................................2.2
311(b) .....................................................2.2
311(c) ............................................Inapplicable
312(a) .....................................................2.2
312(b) .....................................................2.2
312(c) ............................................Inapplicable
313(a) .....................................................2.3
313(b) .....................................................2.3
313(c) .....................................................2.3
313(d) .....................................................2.3
314(a) .....................................................2.4
314(b) ............................................Inapplicable
314(c) .....................................................2.5
314(d) ............................................Inapplicable
314(e) .....................................................2.5
314(f) ............................................Inapplicable
315(a) ..........................................3.1(d); 3.2(a)
315(b) ..................................................2.7(a)
315(c) ..................................................3.1(c)
315(d) ..................................................3.1(d)
316(a) .............................................2.6; 5.4(a)
317(a) ..................................................3.1(b)
318(a) ..................................................2.1(b)
(1) This Cross-Reference Table does not constitute part of the Agreement
and shall not have any bearing upon the interpretation of any of its terms or
provisions.
Table of Contents
Page
ARTICLE I
DEFINITIONS AND INTERPRETATIONS
SECTION 1.1 Definitions and Interpretations......................1
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act: Application....................5
SECTION 2.2 List of Holders of Securities........................5
SECTION 2.3 Reports by the Preferred Securities
Guarantee Trustee..................................5
SECTION 2.4 Periodic Reports to Preferred Securities
Guarantee Trustee..................................6
SECTION 2.5 Evidence of Compliance with Conditions
Precedent..........................................6
SECTION 2.6 Events of Default; Waiver............................6
SECTION 2.7 Event of Default; Notice.............................6
SECTION 2.8 Conflicting Interests................................7
ARTICLE III
POWERS, DUTIES AND RIGHTS OF PREFERRED SECURITIES GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Preferred Securities
Guarantee Trustee..................................7
SECTION 3.2 Certain Rights of Preferred Securities
Guarantee Trustee..................................9
SECTION 3.3 Not Responsible for Recitals or Issuance
of Guarantee......................................11
ARTICLE IV
PREFERRED SECURITIES GUARANTEE TRUSTEE
SECTION 4.1 Preferred Securities Guarantee Trustee;
Eligibility.......................................11
SECTION 4.2 Appointment, Removal and Resignation of
Preferred Securities Guarantee Trustee............12
ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee...........................................13
SECTION 5.2 Waiver of Notice and Demand.........................13
SECTION 5.3 Obligations Not Affected............................13
SECTION 5.4 Rights of Holders...................................14
SECTION 5.5 Guarantee of Payment................................14
SECTION 5.6 Subrogation.........................................14
SECTION 5.7 Independent Obligations.............................15
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ARTICLE VI
LIMITATION OF TRANSACTIONS; RANKING
SECTION 6.1 Limitation of Transactions..........................15
SECTION 6.2 Ranking.............................................16
ARTICLE VII
TERMINATION
SECTION 7.1 Termination.........................................16
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1 Exculpation.........................................17
SECTION 8.2 Indemnification.....................................17
SECTION 8.3 Compensation........................................18
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Successors and Assigns..............................18
SECTION 9.2 Amendments..........................................18
SECTION 9.3 Notices.............................................18
SECTION 9.4 Benefit.............................................19
SECTION 9.5 Governing Law.......................................19
SECTION 9.6 Counterparts........................................19
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PREFERRED SECURITIES GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (the "Preferred Securities Guarantee"), dated
as of January 15, 2002, is executed and delivered by DTE Energy Company, a
Michigan corporation (the "Guarantor"), and The Bank of New York, as trustee
(the "Preferred Securities Guarantee Trustee"), for the benefit of the Holders
(as defined herein) from time to time of the Preferred Securities (as defined
herein) of DTE Energy Trust I, a Delaware statutory business trust (the
"Issuer").
WHEREAS, pursuant to an Amended and Restated Trust Agreement (the
"Agreement"), dated as of January 15, 2002, among the trustees of the Issuer
named therein, the Guarantor, as sponsor, and the holders from time to time of
undivided beneficial interests in the assets of the Issuer, the Issuer is
issuing on the date hereof 7,200,000 preferred securities, liquidation amount
$25 per preferred security, having an aggregate liquidation amount of
$180,000,000, designated the 7.8% Trust Preferred Securities (the "Preferred
Securities");
WHEREAS, as incentive for the Holders to purchase the Preferred
Securities, the Guarantor desires irrevocably and unconditionally to agree, to
the extent set forth in this Preferred Securities Guarantee, to pay to the
Holders the Guarantee Payments (as defined herein) and to make certain other
payments and fulfill certain other obligations on the terms and conditions set
forth herein; and
WHEREAS, the Guarantor is concurrently herewith executing and
delivering a guarantee agreement (the "Common Securities Guarantee") with
substantially identical terms to this Preferred Securities Guarantee for the
benefit of the holders of the Common Securities (as defined herein), except that
if an Event of Default (as defined in the Agreement), has occurred and is
continuing, the rights of holders of the Common Securities to receive Guarantee
Payments under the Common Securities Guarantee are subordinated to the rights of
Holders to receive Guarantee Payments under this Preferred Securities Guarantee.
NOW, THEREFORE, in consideration of the purchase by each Holder, which
purchase the Guarantor hereby agrees shall benefit the Guarantor, the Guarantor
executes and delivers this Guarantee for the benefit of the Holders.
ARTICLE I
DEFINITIONS AND INTERPRETATIONS
SECTION 1.1 Definitions and Interpretations
In this Preferred Securities Guarantee, unless the context otherwise
requires or otherwise specifies:
(a) capitalized terms used in this Preferred Securities Guarantee but
not defined in the preamble above have the respective meanings
assigned to them in this Section 1.1;
(b) terms defined in the Agreement as at the date of execution of this
Preferred Securities Guarantee have the same meaning when used in
this Preferred Securities Guarantee unless otherwise defined in
this Preferred Securities Guarantee;
(c) a term defined anywhere in this Preferred Securities Guarantee,
including the recitals, has the same meaning throughout;
(d) all references to "the Preferred Securities Guarantee" or "this
Preferred Securities Guarantee" are to this Preferred Securities
Guarantee as modified, supplemented or amended from time to time;
(e) all references in this Preferred Securities Guarantee to an
Article, Section or other subdivision are to an Article, Section or
other subdivision of this Preferred Securities Guarantee;
(f) a term defined in the Trust Indenture Act has the same meaning when
used in this Preferred Securities Guarantee, unless otherwise
defined in this Preferred Securities Guarantee;
(g) a reference to the singular includes the plural and vice versa;
(h) the words "include," "includes" and "including" shall be deemed to
be followed by the phrase "without limitation"; and
(i) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any
particular Article or Section or other subdivision.
"Affiliate" has the same meaning given to that term in Rule 405 under
the Securities Act of 1933, as amended, or any successor rule thereunder.
"Authorized Officer" of a Person means any Person that is authorized to
bind such Person.
"Business Day" means any day that is not a Saturday, Sunday, a day on
which banking institutions in The City of New York are permitted or required by
any applicable law or executive order to close, or a day on which the Corporate
Trust Office of the Property Trustee or the Debenture Trustee is closed for
business.
"Common Securities" means the securities representing common undivided
beneficial interests in the assets of the Issuer.
"Corporate Trust Office" means the office of the Preferred Securities
Guarantee Trustee at which the corporate trust business of the Preferred
Securities Guarantee Trustee shall, at any particular time, be principally
administered, which office at the date of execution of this Guarantee is located
at 101 Barclay Street, Floor 21W, New York, NY 10286, Attention: Corporate Trust
Trustee Administration.
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"Covered Person" means any Holder or beneficial owner of Preferred
Securities.
"Debentures" means the series of debt securities of the Guarantor
issued under the Indenture (as defined in the Agreement) held by the Property
Trustee (as defined in the Agreement) on behalf of the Issuer.
"Direction" by a person means a written direction signed: (a) if the
Person is a natural person, by that Person; or (b) in any other case in the name
of such Person by one or more Authorized Officers of that Person.
"Event of Default" means a default by the Guarantor on any of its
payment or other obligations under this Preferred Securities Guarantee.
"Guarantee Payments" means the following payments or distributions,
without duplication, with respect to the Preferred Securities, to the extent not
paid or made by the Issuer:
(i) any accumulated and unpaid Distributions (as defined in
the Agreement) that are required to be paid on such Preferred
Securities to the extent the Issuer shall have funds available
therefor,
(ii) the redemption or repayment price, if any, specified in
the Agreement, including all accrued and unpaid distributions to the
date of redemption or repayment (the "Redemption or Repayment Price")
with respect to Preferred Securities called or submitted for redemption
or repayment, to the extent the Issuer has funds available therefor,
and
(iii) upon a voluntary or involuntary dissolution, winding-up
or termination of the Issuer (other than in connection with the
distribution of Debentures to the Holders in exchange for Preferred
Securities if so provided in the Agreement), the lesser of (a) the
aggregate of the liquidation amount and all accumulated and unpaid
Distributions on the Preferred Securities to the date of payment, to
the extent the Issuer shall have funds available therefor, and (b) the
amount of assets of the Issuer remaining available for distribution to
Holders in liquidation of the Issuer (in either case, the "Liquidation
Distribution").
"Holder" means any holder, as registered on the books and records of
the Issuer, of any Preferred Securities; provided, however, that, in determining
whether the Holders of the requisite percentage of Preferred Securities have
given any request, notice, consent or waiver hereunder, "Holder" shall not
include the Guarantor or any Affiliate of the Guarantor.
"Indemnified Person" means the Preferred Securities Guarantee Trustee,
including in its individual capacity, any Affiliate of the Preferred Securities
Guarantee Trustee, or any officers, directors, shareholders, members, partners,
employees, representatives, nominees, custodians or agents of the Preferred
Securities Guarantee Trustee.
"Officers' Certificate" means, with respect to (A) the Guarantor, a
certificate signed by the Chairman of the Board, a Vice Chairman, the President
or a Vice President, and by the Treasurer, an Assistant Treasurer, the
Controller, an Assistant Controller, the Secretary or an
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Assistant Secretary of the Guarantor and (B) any other Person, a certificate
signed by any two Authorized Officers of such Person. Any Officers' Certificate
delivered with respect to compliance with a condition or covenant provided for
in this Preferred Guarantee Agreement shall include:
(a) a statement that the individuals signing the Officers' Certificate
have read the covenant or condition and the definitions relating
thereto;
(b) a brief statement of the nature and scope of the examination or
investigation upon which the statements or opinions contained in
such Officers' Certificate are based;
(c) a statement that, in the opinion of each such individual, he or she
has made such examination or investigation as, in such individual's
opinion, is necessary to enable such individual to express an
informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether, in the opinion of such individuals, such
condition or covenant has been complied with.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association or government or any agency
or political subdivision thereof, or any other entity of whatever nature.
"Property Trustee" means The Bank of New York, or any duly appointed
successor thereto under the Agreement.
"Preferred Securities Guarantee Trustee" means The Bank of New York,
until a Successor Preferred Securities Guarantee Trustee has been appointed and
has accepted such appointment pursuant to the terms of this Preferred Securities
Guarantee and thereafter means each such Successor Preferred Securities
Guarantee Trustee.
"Responsible Officer" means, with respect to the Preferred Guarantee
Trustee, any officer within the Corporate Trust Office of the Preferred
Guarantee Trustee with direct responsibility for the Preferred Guarantee
Trustee's obligations under this Preferred Guarantee Agreement and also means,
with respect to a particular corporate trust matter, any other officer to whom
such matter is referred because of that Officer's knowledge of and familiarity
with the particular subject.
"Successor Preferred Securities Guarantee Trustee" means a successor
Preferred Securities Guarantee Trustee possessing the qualifications to act as
Preferred Securities Guarantee Trustee under Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended.
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ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act: Application
(a) This Preferred Securities Guarantee is subject to the provisions of
the Trust Indenture Act that are required to be part of this Preferred
Securities Guarantee and shall, to the extent applicable, be governed by such
provisions; and
(b) If and to the extent that any provision of this Preferred
Securities Guarantee limits, qualifies or conflicts with the duties imposed by
Sections 310 to 317, inclusive, of the Trust Indenture Act, such imposed duties
shall control.
SECTION 2.2 List of Holders of Securities
In accordance with ss.312(a) of the Trust Indenture Act, the Guarantor
shall provide to the Preferred Securities Guarantee Trustee:
(a) within 14 days after each of the dates as are determined for the
Property Trustee pursuant to Section 2.2(a)(i) of the Agreement, a list, in such
form as the Preferred Securities Guarantee Trustee may reasonably require, of
the names and addresses of the Holders ("List of Holders") as of such date,
provided that the Guarantor shall not be obligated to provide such List of
Holders if the Preferred Securities Guarantee Trustee is the Registrar or at any
time the List of Holders does not differ from the most recent List of Holders
given to the Preferred Securities Guarantee Trustee by the Guarantor; and
(b) at any other time, within 30 days of receipt by the Guarantor of a
written request by the Preferred Securities Guarantee Trustee for a List of
Holders as of a date no more than 14 days before such List of Holders is given
to the Preferred Securities Guarantee Trustee. The Preferred Securities
Guarantee Trustee shall preserve, in as current a form as is reasonably
practicable, all information contained in the List of Holders given to it or
which it receives in its capacity as paying agent or registrar (if acting in
such capacity), provided that the Preferred Securities Guarantee Trustee may
destroy any List of Holders previously given to it on receipt of a new List of
Holders.
The Preferred Securities Guarantee Trustee shall comply with its
obligations under ss.ss. 311(a), 311(b) and 312(b) of the Trust Indenture Act.
SECTION 2.3 Reports by the Preferred Securities Guarantee Trustee
Within 60 days after June 15 of each year, commencing with the June 15
that first occurs following the issuance of the Preferred Securities, the
Preferred Securities Guarantee Trustee shall provide to the Holders such reports
as are required by Section 313 of the Trust Indenture Act, if any, in the form
and in the manner provided by Section 313 of the Trust Indenture Act. The
Preferred Securities Guarantee Trustee shall also comply with the requirements
of Section 313(d) of the Trust Indenture Act.
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SECTION 2.4 Periodic Reports to Preferred Securities Guarantee Trustee
The Guarantor shall provide to the Preferred Securities Guarantee
Trustee such documents, reports and information as required by Section 314 (if
any) and the compliance certificate required by Section 314 of the Trust
Indenture Act in the form, in the manner and at the times required by Section
314 of the Trust Indenture Act.
SECTION 2.5 Evidence of Compliance with Conditions Precedent
The Guarantor shall provide to the Preferred Securities Guarantee
Trustee such evidence of compliance with any conditions precedent, if any,
provided for in this Preferred Securities Guarantee that relate to any of the
matters set forth in Section 314(c) of the Trust Indenture Act. Any certificate
or opinion required to be given by an officer pursuant to Section 314(c)(1) may
be given in the form of an Officers' Certificate.
SECTION 2.6 Events of Default; Waiver
The Holders of not less than a Majority in liquidation amount of
Preferred Securities may, by vote or written consent, on behalf of all Holders,
waive any past Event of Default and its consequences. Upon such waiver, any such
Event of Default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this
Preferred Securities Guarantee, but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
SECTION 2.7 Event of Default; Notice
(a) The Preferred Securities Guarantee Trustee shall, within 90 days
after a Responsible Officer of the Preferred Securities Guarantee Trustee
obtains actual knowledge of the occurrence of an Event of Default, transmit by
mail, first class postage prepaid, to the Holders, notices of all such Events of
Default actually known to such Responsible Officer of the Preferred Securities
Guarantee Trustee, unless such defaults have been cured before the giving of
such notice, provided, that, except in the case of default in the payment of any
Guarantee Payment or, if applicable, in the delivery of any cash, securities or
other property in exchange for or upon conversion or redemption of or otherwise
in accordance with the terms of, any Debenture or the Preferred Securities, the
Preferred Securities Guarantee Trustee shall be protected in withholding such
notice if and so long as a Responsible Officer of the Preferred Securities
Guarantee Trustee in good faith determines that the withholding of such notice
is in the interests of the Holders.
(b) The Preferred Securities Guarantee Trustee shall not be deemed to
have knowledge of any Event of Default except:
(i) a default in the payment of any Guarantee Payment;
(ii) any failure to deliver any cash, securities or other property in
exchange for or upon redemption of or otherwise in accordance
with the terms of any Debenture or the Preferred Securities, if
applicable; and
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(iii) any default as to which the Preferred Securities Guarantee
Trustee shall have received written notice or of which a
Responsible Officer of the Preferred Securities Guarantee Trustee
charged with the administration of this Preferred Securities
Guarantee Agreement shall have actual knowledge.
(c) The Guarantor shall file annually within 30 days after June 15 of
each year, commencing with the June 15 that first occurs following the issuance
of the Preferred Securities, with the Preferred Securities Guarantee Trustee in
accordance with Section 314(a)(4) of the Trust Indenture Act a certification as
to whether or not it is in compliance with all the conditions applicable to it
under this Preferred Securities Guarantee Agreement.
SECTION 2.8 Conflicting Interests
(a) If the Preferred Securities Guarantee Trustee has or shall acquire
any "conflicting interest" within the meaning of ss.310(b) of the Trust
Indenture Act, the Preferred Securities Guarantee Trustee shall in all respects
comply with the provisions of ss.310(b) of the Trust Indenture Act.
(b) The Agreement and the Indenture shall be deemed to be specifically
described in this Preferred Securities Guarantee for the purposes of clause (i)
of the first proviso contained in Section 310(b) of the Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF
PREFERRED SECURITIES GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Preferred Securities Guarantee Trustee
(a) This Preferred Securities Guarantee shall be held by the Preferred
Securities Guarantee Trustee for the benefit of the Holders, and the Preferred
Securities Guarantee Trustee shall not transfer this Preferred Securities
Guarantee to any Person except a Holder exercising his or her rights pursuant to
Section 5.4(b) or to a Successor Preferred Securities Guarantee Trustee on
acceptance by such Successor Preferred Securities Guarantee Trustee of its
appointment to act as Successor Preferred Securities Guarantee Trustee. The
right, title and interest of the Preferred Securities Guarantee Trustee shall
automatically vest in any Successor Preferred Securities Guarantee Trustee, and
such vesting and succession of title shall be effective whether or not
conveyancing documents have been executed and delivered pursuant to the
appointment of such Successor Preferred Securities Guarantee Trustee.
(b) If an Event of Default actually known to a Responsible Officer of
the Preferred Securities Guarantee Trustee has occurred and is continuing, the
Preferred Securities Guarantee Trustee shall enforce this Preferred Securities
Guarantee for the benefit of the Holders.
(c) The Preferred Securities Guarantee Trustee, before the occurrence
of any Event of Default and after the curing or waiver of all Events of Default
that may have occurred, shall undertake to perform only such duties as are
specifically set forth in this Preferred Securities
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Guarantee, and no implied covenants or obligations shall be read into this
Preferred Securities Guarantee against the Preferred Securities Guarantee
Trustee. In case an Event of Default has occurred (that has not been cured or
waived pursuant to Section 2.6) and is actually known to a Responsible Officer
of the Preferred Securities Guarantee Trustee, the Preferred Securities
Guarantee Trustee shall exercise such of the rights and powers vested in it by
this Preferred Securities Guarantee, and use the same degree of care and skill
in its exercise thereof, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
(d) No provision of this Preferred Securities Guarantee shall be
construed to relieve the Preferred Securities Guarantee Trustee from liability
for its own negligent action, its own negligent failure to act, its own bad
faith or its own willful misconduct, except that:
(i) prior to the occurrence of any Event of Default and after
the curing or waiving of such Events of Default that may have occurred:
(1) the duties and obligations of the Preferred
Securities Guarantee Trustee shall be determined solely by the
express provisions of this Preferred Securities Guarantee, and
the Preferred Securities Guarantee Trustee shall not be liable
except for the performance of such duties and obligations as
are specifically set forth in this Preferred Securities
Guarantee, and no implied covenants or obligations shall be
read into this Preferred Securities Guarantee against the
Preferred Securities Guarantee Trustee; and
(2) in the absence of bad faith on the part of the
Preferred Securities Guarantee Trustee, the Preferred
Securities Guarantee Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions furnished
to the Preferred Securities Guarantee Trustee and conforming
to the requirements of this Preferred Securities Guarantee;
but in the case of any such certificates or opinions that by
any provision hereof are specifically required to be furnished
to the Preferred Securities Guarantee Trustee, the Preferred
Securities Guarantee Trustee shall be under a duty to examine
the same to determine whether or not they conform to the
requirements of this Preferred Securities Guarantee;
(ii) the Preferred Securities Guarantee Trustee shall not be
liable for any error of judgment made in good faith by a Responsible
Officer of the Preferred Securities Guarantee Trustee, unless it shall
be proved that the Preferred Securities Guarantee Trustee was negligent
in ascertaining the pertinent facts;
(iii) the Preferred Securities Guarantee Trustee shall not be
liable with respect to any action taken or omitted to be taken by it in
good faith in accordance with the direction of the Holders of not less
than a Majority in liquidation amount of the Preferred Securities
relating to the time, method and place of conducting any proceeding for
any remedy available to the Preferred Securities Guarantee Trustee, or
exercising any trust or power conferred upon the Preferred Securities
Guarantee Trustee under this Preferred Securities Guarantee; and
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(iv) no provision of this Preferred Securities Guarantee shall
require the Preferred Securities Guarantee Trustee to expend or risk
its own funds or otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of any of its
rights or powers, if the Preferred Securities Guarantee Trustee shall
have reasonable grounds for believing that the repayment of such funds
or liability is not reasonably assured to it under the terms of this
Preferred Securities Guarantee or if indemnity reasonably satisfactory
to the Preferred Securities Guarantee Trustee against such risk or
liability is not reasonably assured to it.
SECTION 3.2 Certain Rights of Preferred Securities Guarantee Trustee
(a) Subject to the provisions of Section 3.1:
(i) the Preferred Securities Guarantee Trustee may
conclusively rely, and shall be fully protected in acting or refraining
from acting upon, any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed, sent or
presented by the proper party or parties;
(ii) any direction or act of the Guarantor contemplated by
this Preferred Securities Guarantee shall be sufficiently evidenced by
a Direction or an Officers' Certificate;
(iii) whenever, in the administration of this Preferred
Securities Guarantee, the Preferred Securities Guarantee Trustee shall
deem it desirable that a matter be proved or established before taking,
suffering or omitting any action hereunder, the Preferred Securities
Guarantee Trustee (unless other evidence is herein specifically
prescribed) may, in the absence of negligence, bad faith or willful
misconduct on its part, request and conclusively rely upon an Officers'
Certificate which, upon receipt of such request, shall be promptly
delivered by the Guarantor;
(iv) the Preferred Securities Guarantee Trustee shall have no
duty to see to any recording, filing or registration of any instrument
(or any rerecording, refiling or reregistration thereof);
(v) the Preferred Securities Guarantee Trustee may consult
with competent legal counsel or other experts, and the advice or
written opinion of such counsel and experts with respect to legal
matters or advice within the scope of such legal counsel's or expert's
area of expertise shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in accordance with such advice or opinion.
Such counsel may be counsel to the Guarantor or any of its Affiliates
and may include any of its employees. The Preferred Securities
Guarantee Trustee shall have the right at any time to seek instructions
concerning the administration of this Preferred Securities Guarantee
from any court of competent jurisdiction;
(vi) the Preferred Securities Guarantee Trustee shall be under
no obligation to exercise any of the rights or powers vested in it by
this Preferred Securities Guarantee at the request or direction of any
Holder, unless such Holder shall have provided to the
9
Preferred Securities Guarantee Trustee such security and indemnity,
reasonably satisfactory to the Preferred Securities Guarantee Trustee,
against the reasonable costs, expenses (including reasonable attorneys'
fees and reasonable expenses and the expenses of the Preferred
Securities Guarantee Trustee, agents, nominees or custodians) and
liabilities that might be incurred by it in complying with such request
or direction, including such reasonable advances as may be requested by
the Preferred Securities Guarantee Trustee; provided that, nothing
contained in this Section 3.2(a)(vi) shall be taken to relieve
the Preferred Securities Guarantee Trustee, upon the occurrence of an
Event of Default, of its obligation to exercise the rights and powers
vested in it by this Preferred Securities Guarantee;
(vii) the Preferred Securities Guarantee Trustee shall not be
bound to conduct an investigation into the facts or matters stated in
any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document, but the
Preferred Securities Guarantee Trustee, in its discretion, may make
such further inquiry or investigation into such facts or matters as it
may see fit;
(viii) the Preferred Securities Guarantee Trustee may execute
any of the trusts or powers hereunder or perform any duties hereunder
either directly or by or through agents, nominees, custodians or
attorneys, and the Preferred Securities Guarantee Trustee shall not be
responsible for any misconduct or negligence on the part of any agent
or attorney appointed with due care by it hereunder;
(ix) any action taken by the Preferred Securities Guarantee
Trustee or its agents hereunder shall bind the Holders, and the
signature of the Preferred Securities Guarantee Trustee or its agents
alone shall be sufficient and effective to perform any such action, and
no third party shall be required to inquire as to the authority of the
Preferred Securities Guarantee Trustee to so act or as to its
compliance with any of the terms and provisions of this Preferred
Securities Guarantee, both of which shall be conclusively evidenced by
the Preferred Securities Guarantee Trustee's or its agent's taking such
action;
(x) whenever in the administration of this Preferred
Securities Guarantee the Preferred Securities Guarantee Trustee shall
deem it desirable to receive instructions with respect to enforcing any
remedy or right or taking any other action hereunder, the Preferred
Securities Guarantee Trustee (i) may request instructions from the
Holders of a Majority in liquidation amount of the Preferred
Securities, (ii) may refrain from enforcing such remedy or right or
taking such other action until such instructions are received, and
(iii) shall be protected in conclusively relying on or acting in
accordance with such instructions;
(xi) except as otherwise expressly provided by this Preferred
Securities Guarantee, the Preferred Securities Guarantee Trustee shall
not be under any obligation to take any action that is discretionary
under the provisions of this Preferred Securities Agreement; and
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(xii) the Preferred Securities Guarantee Trustee shall not be
liable for any action taken, suffered, or omitted to be taken by it in
good faith, without negligence, and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon
it by this Preferred Securities Guarantee.
(b) No provision of this Preferred Securities Guarantee shall be deemed
to impose any duty or obligation on the Preferred Securities Guarantee Trustee
to perform any act or acts or exercise any right, power, duty or obligation
conferred or imposed on it in any jurisdiction in which it shall be illegal, or
in which the Preferred Securities Guarantee Trustee shall be unqualified or
incompetent in accordance with applicable law, to perform any such act or acts
or to exercise any such right, power, duty or obligation. No permissive power or
authority available to the Preferred Securities Guarantee Trustee shall be
construed to be a duty.
SECTION 3.3 Not Responsible for Recitals or Issuance of Guarantee
The recitals contained in this Guarantee shall be taken as the
statements of the Guarantor, and the Preferred Securities Guarantee Trustee does
not assume any responsibility for their correctness. The Preferred Securities
Guarantee Trustee makes no representation as to the validity or sufficiency of
this Preferred Securities Guarantee.
ARTICLE IV
PREFERRED SECURITIES GUARANTEE TRUSTEE
SECTION 4.1 Preferred Securities Guarantee Trustee; Eligibility
(a) There shall at all times be a Preferred Securities Guarantee
Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under the
laws of the United States of America or any State or Territory thereof
or of the District of Columbia, or a corporation or Person permitted by
the Securities and Exchange Commission to act as an institutional
trustee under the Trust Indenture Act, authorized under such laws to
exercise corporate trust powers, having a combined capital and surplus
of at least 50 million U.S. dollars ($50,000,000), and subject to
supervision or examination by Federal, State, Territorial or District
of Columbia authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of
the supervising or examining authority referred to above, then, for the
purposes of this Section 4.1(a)(ii), the combined capital and surplus
of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published.
(b) If at any time the Preferred Securities Guarantee Trustee shall
cease to be eligible to so act under Section 4.1(a), the Preferred Securities
Guarantee Trustee shall immediately resign in the manner and with the effect set
out in Section 4.2(c).
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SECTION 4.2 Appointment, Removal and Resignation of Preferred Securities
Guarantee Trustee
(a) Subject to Section 4.2(b), the Preferred Securities Guarantee
Trustee may be appointed or removed without cause at any time:
(i) until the issuance of any Preferred Securities, by written
instrument executed by the Guarantor;
(ii) unless an Event of Default shall have occurred and be
continuing, after the issuance of any Securities, by the Guarantor; and
(iii) if an Event of Default shall have occurred and be
continuing, after the issuance of the Preferred Securities, by vote or
written consent of the Holders of a Majority in liquidation amount of
the Preferred Securities.
(b) The Preferred Securities Guarantee Trustee shall not be removed in
accordance with Section 4.2(a) until a Successor Preferred Securities Guarantee
Trustee has been appointed and has accepted such appointment by written
instrument executed by such Successor Preferred Securities Guarantee Trustee and
delivered to the Guarantor.
(c) The Preferred Securities Guarantee Trustee appointed to office
shall hold office until a Successor Preferred Securities Guarantee Trustee shall
have been appointed or until its removal or resignation. The Preferred
Securities Guarantee Trustee may resign from office (without need for prior or
subsequent accounting) by an instrument in writing executed by the Preferred
Securities Guarantee Trustee and delivered to the Guarantor, which resignation
shall not take effect until a Successor Preferred Securities Guarantee Trustee
has been appointed and has accepted such appointment by instrument in writing
executed by such Successor Preferred Securities Guarantee Trustee and delivered
to the Guarantor and the resigning Preferred Securities Guarantee Trustee.
(d) If no Successor Preferred Securities Guarantee Trustee shall have
been appointed and accepted appointment as provided in this Section 4.2 within
60 days after delivery to the Guarantor of an instrument of removal or
resignation, the Preferred Securities Guarantee Trustee resigning or being
removed may petition any court of competent jurisdiction for appointment of a
Successor Preferred Securities Guarantee Trustee. Such court may thereupon,
after prescribing such notice, if any, as it may deem proper, appoint a
Successor Preferred Securities Guarantee Trustee.
(e) No Preferred Securities Guarantee Trustee shall be liable for the
acts or omissions to act of any Successor Preferred Securities Guarantee
Trustee.
(f) Upon termination of this Preferred Securities Guarantee or removal
or resignation of the Preferred Securities Guarantee Trustee pursuant to this
Section 4.2, the Guarantor shall pay to the Preferred Securities Guarantee
Trustee all amounts due to the Preferred Securities Guarantee Trustee accrued to
the date of such termination, removal or resignation.
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ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee
The Guarantor irrevocably and unconditionally agrees to pay in full to
the Holders the Guarantee Payments (without duplication of amounts theretofore
paid by the Issuer), as and when due, regardless of any defense, right of
set-off or counterclaim that the Issuer may have or assert. The Guarantor's
obligation to make a Guarantee Payment may be satisfied by direct payment of the
required amounts by the Guarantor to the Holders or by causing the Issuer to pay
such amounts to the Holders.
In addition, the Guarantor irrevocably and unconditionally agrees to
cause the Issuer to deliver to the Holders such securities and other property as
may be deliverable to them in accordance with the terms of the Preferred
Securities, including as a result of any exchange, redemption, liquidation or
other provision of the Debentures or the Preferred Securities.
SECTION 5.2 Waiver of Notice and Demand
The Guarantor hereby waives notice of acceptance of this Preferred
Securities Guarantee and of any liability to which it applies or may apply,
presentment, demand for payment, any right to require a proceeding first against
the Issuer or any other Person before proceeding against the Guarantor, protest,
notice of nonpayment, notice of dishonor, notice of redemption and all other
notices and demands.
SECTION 5.3 Obligations Not Affected
The obligations, covenants, agreements and duties of the Guarantor
under this Preferred Securities Guarantee shall in no way be affected or
impaired by reason of the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied agreement,
covenant, term or condition relating to the Preferred Securities to be performed
or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or any
portion any sums payable or the performance by the Issuer of any other
obligation under, arising out of, or in connection with, the Preferred
Securities (other than an extension of time permitted by the Indenture);
(c) any failure, omission, delay or lack of diligence on the part of
the Holders to enforce, assert or exercise any right, privilege, power or remedy
conferred on the Holders pursuant to the terms of the Preferred Securities, or
any action on the part of the Issuer granting indulgence or extension of any
kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization,
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arrangement, composition or readjustment of debt of, or other similar
proceedings affecting, the Issuer or any of the assets of the Issuer;
(e) any invalidity of, or defect or deficiency in, the Preferred
Securities;
(f) the settlement or compromise of any obligation guaranteed hereby or
hereby incurred; or
(g) any other circumstance whatsoever that might otherwise constitute a
legal or equitable discharge or defense of a guarantor, it being the intent of
this Section 5.3 that the obligations of the Guarantor hereunder shall be
absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or
obtain the consent of, the Guarantor with respect to the happening of any of the
foregoing.
SECTION 5.4 Rights of Holders
(a) The Holders of a Majority in liquidation amount of the Preferred
Securities have the right to direct the time, method and place of conducting of
any proceeding for any remedy available to the Preferred Securities Guarantee
Trustee in respect of this Preferred Securities Guarantee or exercising any
trust or power conferred upon the Preferred Securities Guarantee Trustee under
this Preferred Securities Guarantee.
(b) If the Preferred Securities Guarantee Trustee fails to enforce this
Preferred Securities Guarantee, any Holder may institute a legal proceeding
directly against the Guarantor to enforce its rights under this Preferred
Securities Guarantee, without first instituting a legal proceeding against the
Issuer, the Preferred Securities Guarantee Trustee or any other Person.
Notwithstanding the foregoing, if the Guarantor has failed to make a Guarantee
Payment or to perform any of its other obligations under Section 5.1, a Holder
may directly institute a proceeding in the Holder's own name against the
Guarantor for enforcement of this Preferred Securities Guarantee for the portion
of such Guarantee Payment or the performance of such other obligation to which
such Holder is entitled. The Guarantor waives any right or remedy to require
that any action on this Preferred Securities Guarantee be brought first against
the Issuer or any other person or entity before proceeding directly against the
Guarantor.
SECTION 5.5 Guarantee of Payment
This Preferred Securities Guarantee creates a guarantee of payment and
not of collection. This Preferred Securities Guarantee will not be discharged
except by payment of the Guarantee Payments in full (without duplication of
amounts theretofore paid by the Issuer) or upon distribution of Debentures to
Holders as provided in the Agreement.
SECTION 5.6 Subrogation
The Guarantor shall be subrogated to all rights, if any, of the Holders
against the Issuer in respect of any amounts paid to such Holders by the
Guarantor under this Preferred Securities Guarantee; provided, however, that the
Guarantor shall not (except to the extent required by
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mandatory provisions of law) be entitled to enforce or exercise any right that
it may acquire by way of subrogation or any indemnity, reimbursement or other
agreement, in all cases as a result of payment under this Preferred Securities
Guarantee, if, at the time of any such payment, any amounts are due and unpaid
under this Preferred Securities Guarantee. If any amount shall be paid or
property delivered to the Guarantor in violation of the preceding sentence, the
Guarantor agrees to hold such amount or property in trust for the Holders and to
pay over such amount or deliver such property to the Holders entitled thereto.
SECTION 5.7 Independent Obligations
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the Preferred
Securities, and that the Guarantor shall be liable as principal and as debtor
hereunder to make Guarantee Payments pursuant to the terms of this Preferred
Securities Guarantee notwithstanding the occurrence of any event referred to in
subsections (a) through (g), inclusive, of Section 5.3 hereof.
ARTICLE VI
LIMITATION OF TRANSACTIONS; RANKING
SECTION 6.1 Limitation of Transactions
So long as any Preferred Securities remain outstanding, the Guarantor
shall not
(i) declare or pay any dividends or distributions on, or redeem,
purchase, acquire, or make a liquidation payment with respect to,
any of the Guarantor's Capital Stock;
(ii) make any payment of principal of or premium or interest on or
repay repurchase or redeem any indebtedness of the Guarantor that
ranks equally with or junior in right of payment to the
Debentures;
(iii) make any guarantee payments with respect to any guarantee by the
Guarantor of the indebtedness of any Subsidiary thereof or any
other party if such guarantee ranks equally with or junior in
right of payment to the Debentures
(other than (a) dividends or distributions payable solely in
shares of, or options, warrants or rights to subscribe for or
purchase shares of, Common Stock of the Guarantor, (b) any
declaration of a dividend in connection with the implementation
of a Rights Plan, (c) the issuance of any Capital Stock of the
Guarantor under any Rights Plan, or the redemption or repurchase
of any rights distributed pursuant to a Rights Plan, (d) payments
under the Preferred Securities Guarantee, (e) reclassification of
the Guarantor's Capital Stock or the exchange or the conversion
of one class or series of the Guarantor's Capital Stock for
another class or series of the Guarantor's Capital Stock, (f) the
purchase of fractional interests in shares of the Guarantor's
Capital Stock pursuant to the conversion or exchange provisions
of such Capital Stock or the security being converted or
exchanged, and (g) purchases of Common Stock related to the
issuance of Common Stock or rights under any of the Guarantor's
benefit plans for its
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directors, officers, employees, consultants or advisors or any of
the Guarantor's dividend reinvestment plans);
if at such time (i) there shall have occurred and be continuing an Event of
Default under the Agreement or any event of which the Guarantor has actual
knowledge that is, or with the giving of notice or the lapse of time, or both,
would be an Event of Default under the Agreement, (ii) the Guarantor shall be in
default with respect to its payment or other obligations under Section 5.1 of
this Preferred Securities Guarantee or (iii) the Guarantor shall have given
notice of its election to begin an Extension Period as provided in the Indenture
and shall not have rescinded such notice or such Extension Period, or any
extension thereof, shall have commenced and be continuing.
In addition, so long as any Preferred Securities remain outstanding,
the Guarantor (i) will remain the sole direct or indirect owner of all of the
outstanding Preferred Securities of the Issuer; provided that any permitted
successor or assignee of the Guarantor under the Indenture may succeed to the
Guarantor's ownership of the Preferred Securities and (ii) will not take any
action which would cause the Issuer to cease to be treated as a grantor trust
for United States federal income tax purposes except in connection with a
distribution of Debentures as provided in the Agreement.
SECTION 6.2 Ranking
This Preferred Securities Guarantee will constitute an unsecured
obligation of the Guarantor and will rank subordinate and junior in right of
payment to all Senior Indebtedness of the Guarantor to the extent and in the
manner set forth in the supplemental indenture to the Indenture with respect to
the Debentures, and the subordination provisions of the supplemental indenture
to the Indenture with respect to the Debentures will apply, mutatis mutandis, to
the obligations of the Guarantor hereunder. The obligations of the Guarantor
hereunder do not constitute Senior Indebtedness of the Guarantor. The
obligations of the Guarantor under this Preferred Securities Guarantee shall
rank pari passu (or equally) with any similar guarantee agreements issued by the
Guarantor on behalf of the holders of preferred or capital securities issued by
the Issuer or Affiliates of the Guarantor similar to the Issuer and with any
other security, guarantee or other obligation that is expressly stated to rank
pari passu (or equally) with the obligations of the Guarantor under this
Preferred Securities Guarantee.
ARTICLE VII
TERMINATION
SECTION 7.1 Termination
This Preferred Securities Guarantee shall terminate and be of no
further force and effect upon (i) full payment of the Redemption or Repayment
Price of all Preferred Securities, (ii) the exchange of all the Preferred
Securities and the full payment of any related amounts or (iii) full payment of
the amounts payable or delivery of securities or other property deliverable upon
liquidation of the Issuer, in each case, in accordance with the terms of the
Agreement. Notwithstanding the foregoing, this Preferred Securities Guarantee
will continue to be effective
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or will be reinstated, as the case may be, if at any time any Holder must
restore payment of any sums paid or other property distributed under the
Preferred Securities or under this Preferred Securities Guarantee.
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1 Exculpation
(a) No Indemnified Person shall be liable, responsible or accountable
in damages or otherwise to the Guarantor or any Covered Person for any loss,
damage or claim incurred by reason of any act or omission performed or omitted
by such Indemnified Person in good faith in accordance with this Preferred
Securities Guarantee and in a manner that such Indemnified Person reasonably
believed to be within the scope of the authority conferred on such Indemnified
Person by this Preferred Securities Guarantee or by law, except that an
Indemnified Person shall be liable for any such loss, damage or claim incurred
by reason of such Indemnified Person's negligence, bad faith or willful
misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in good
faith upon the records of the Guarantor and upon such information, opinions,
reports or statements presented to the Guarantor by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Guarantor, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses, or any other facts pertinent to the existence and amount of assets from
which Distributions to Holders might properly be paid.
SECTION 8.2 Indemnification
(a) To the fullest extent permitted by applicable law, the Guarantor
agrees to indemnify and hold harmless each Indemnified Person from and against
any loss, damage or claim incurred by such Indemnified Person by reason of any
act or omission performed or omitted by such Indemnified Person in good faith in
accordance with this Preferred Securities Guarantee and in a manner such
Indemnified Person reasonably believed to be within the scope of authority
conferred on such Indemnified Person by this Preferred Securities Guarantee,
except that no Indemnified Person shall be entitled to be indemnified in respect
of any loss, damage or claim incurred by such Indemnified Person by reason of
negligence, bad faith or willful misconduct with respect to such acts or
omissions.
(b) To the fullest extent permitted by applicable law, reasonable
out-of-pocket expenses (including reasonable legal fees) incurred by an
Indemnified Person in defending any claim, demand, action, suit or proceeding
shall, from time to time, be advanced by the Guarantor prior to the final
disposition of such claim, demand, action, suit or proceeding upon receipt by
the Guarantor of an undertaking by or on behalf of the Indemnified Person to
repay such amount if it shall be determined that the Indemnified Person is not
entitled to be indemnified as authorized in Section 8.2(a).
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(c) The provisions set forth in this Section 8.2 shall survive the
termination of the Preferred Securities Guarantee and any resignation or removal
of the Preferred Securities Guarantee Trustee.
SECTION 8.3 Compensation
The Guarantor agrees:
(a) to pay to the Preferred Securities Guarantee Trustee from time to
time such compensation as shall be agreed in writing between the Guarantor and
the Preferred Securities Guarantee Trustee for all services rendered by it
hereunder (which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust); and
(b) to reimburse the Preferred Securities Guarantee Trustee upon its
request for reasonable expenses, disbursements and advances incurred or made by
the Preferred Securities Guarantee Trustee in accordance with any provision of
this Preferred Securities Guarantee (including the reasonable compensation and
the expenses and advances of its agents and counsel), except any such expense or
advance as may be attributable to its negligence, willful misconduct or bad
faith.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Successors and Assigns
All guarantees and agreements contained in this Preferred Securities
Guarantee shall bind the successors, assigns, receivers, trustees and
representatives of the Guarantor and shall inure to the benefit of the Holders
of the Preferred Securities then outstanding. Except in connection with any
merger or consolidation of the Guarantor with or into another entity or any
sale, transfer or lease of the Guarantor's assets to another entity, each as
permitted by the Indenture, the Guarantor may not assign its rights or delegate
its obligations under this Preferred Securities Guarantee without the prior
approval of the Holders of at least a Majority in liquidation amount of the
Preferred Securities then outstanding.
SECTION 9.2 Amendments
Except with respect to any changes that do not adversely affect the
rights of Holders (in which case no consent of Holders will be required), this
Preferred Securities Guarantee may only be amended while any Preferred
Securities are outstanding with the prior approval of the Holders of at least a
Majority in liquidation amount (including the stated amount that would be paid
on redemption, liquidation or otherwise, plus accumulated and unpaid
Distributions to the date upon which the voting percentages are determined) of
all the outstanding Preferred Securities covered by the Preferred Securities
Guarantee. The provisions of Section 12.2 of the Agreement with respect to
meetings of Holders apply to the giving of such approval.
SECTION 9.3 Notices
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All notices provided for in this Preferred Securities Guarantee shall
be in writing, duly signed by the party giving such notice, and shall be
delivered, telecopied or mailed by registered or certified mail, as follows:
(a) If given to the Preferred Securities Guarantee Trustee, at the
Preferred Securities Guarantee Trustee's mailing address set forth below (or
such other address as the Preferred Securities Guarantee Trustee may give notice
of to the Holders of the Preferred Securities):
The Bank of New York
101 Barclay Street, Floor 21W
New York, NY 10286
Attention: Corporate Trust Trustee Administration
(b) If given to the Guarantor, at the Guarantor's mailing address set
forth below (or such other address as the Guarantor may give notice of to the
Holders):
DTE Energy Company
2000 2nd Avenue
Detroit, Michigan 48826-1279
Attention: Treasurer
(c) If given to any Holder, at the address set forth on the books and
records of the Issuer.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address of which no notice was given,
such notice or other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
SECTION 9.4 Benefit
This Preferred Securities Guarantee is solely for the benefit of the
Holders and, subject to Section 3.1(a), is not separately transferable from the
Preferred Securities.
SECTION 9.5 Governing Law.
THIS PREFERRED SECURITIES GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF.
SECTION 9.6 Counterparts.
The parties may sign any number of copies of this Preferred Securities
Guarantee. Each signed copy shall be an original, but all of them together
represent the same agreement. Any signed copy shall be sufficient proof of this
Preferred Securities Guarantee.
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THIS PREFERRED SECURITIES GUARANTEE is executed as of the day and year
first above written.
DTE ENERGY COMPANY
as Guarantor
By:
-----------------------------------------
Name: D.R. Murphy
Title: Assistant Treasurer
THE BANK OF NEW YORK
as Preferred Securities Guarantee Trustee
By:
-----------------------------------------
Name:
Title:
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