EXHIBIT 4.4
TRUST AGREEMENT
This TRUST AGREEMENT, dated as of April 1, 2002 (this "Trust
Agreement"), among (i) Visteon Corporation, a Delaware corporation (the
"Depositor"); (ii) Bank One Delaware, Inc., a Delaware corporation, as Delaware
trustee (the "Delaware Trustee"); (iii) Bank One Trust Company, N.A., a national
banking association, as Property trustee; and (iv) Xxxx Xxxxxxx, an individual,
as 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 (the "Trust") shall be known as
"Visteon Capital Trust I" in which name the Trustees, or the Depositor to the
extent provided herein, may engage in the transactions contemplated hereby, 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 Ten Dollars ($10.00). The Trustees hereby
acknowledge receipt of such amount from the Depositor, which amount shall
constitute the initial trust estate. The Trustees hereby declare that they will
hold the trust estate for the Depositor subject to the terms hereof. 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.
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
Delaware Secretary of State 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 (herein, the "Amended and Restated Trust
Agreement"), satisfactory to each such party and substantially in the form
included as an exhibit to the 1933 Act Registration Statement (as defined
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 Trust
Agreement, 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 of any
licenses, consents or approvals required by applicable law or otherwise.
Notwithstanding the foregoing, the Trustees may take all actions deemed proper
and necessary to effect the transactions contemplated herein.
4. The Depositor, as the agent of the Trust, is hereby
authorized (i) to file with the Securities and Exchange Commission (the
"Commission") and execute, in each case on behalf of the Trust, (a) the
Registration Statement on Form S-3 (the "1933 Act Registration Statement")
(including any pre-effective or post-effective amendments to the 1933 Act
Registration Statement) relating to the registration under the Securities Act of
1933, as amended (the "1933 Act"), of the Preferred Securities of the Trust and
certain other securities; (b) any preliminary prospectus or prospectus or
supplement thereto relating to the Preferred Securities required to be filed
pursuant to Rule 424 under the 1933 Act; and (c) 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 the Securities Exchange Act of 1934, as
amended; (ii) to file with the New York Stock Exchange or any other exchange
(each, an "Exchange") and execute on behalf of the Trust one or more listing
applications 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 any of the Exchanges; (iii) to 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
Depositor, on behalf of the Trust, may deem necessary or desirable; (iv) to
execute and deliver letters or documents to, or instruments for filing with, a
depository for the Preferred Securities of the Trust; and (v) to execute on
behalf of the Trust one or more underwriting agreements relating to the
Preferred Securities, among the Trust, the Depositor and the underwriter(s)
named therein, substantially in the form included as an exhibit to the 1933 Act
Registration Statement. In the event that any filing referred to in clauses (i),
(ii) and (iii) above is required by the rules and regulations of the Commission,
an 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 a 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 Bank One Delaware,
Inc. and Bank One Trust Company, N.A., in their capacity 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 Exchange or state securities or blue sky laws. In connection
with the filings referred to above, the Depositor and Xxxx Xxxxxxx, as a trustee
and not in her individual capacity, hereby constitute and appoint Xxxxx X.
Xxxxxxxx, Xxxxx X. Xxx and Xxxxxx X. Xxxxxxx and each of them, as its and their
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 Trustees' name, place and stead, in any and all capacities, to sign any and
all amendments (including post-effective amendments) to 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 Exchange and administrators of the state securities or
blue sky laws, 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. 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 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
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. The Trustees may resign upon thirty (30) days' prior notice
to the Depositor. The Delaware Trustee shall not be entitled to exercise
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any powers, nor shall the Delaware Trustee have any of the duties and
responsibilities of any other Trustee, or any of the duties and responsibilities
of the Trustees generally, set forth herein. The Delaware Trustee shall be one
of the trustees of the Trust for the sole and limited purpose of fulfilling the
requirements of Section 3807(a) of the Delaware Business Trust Act and for
taking such actions as are required to be taken by a Delaware trustee under the
Delaware Business Trust Act.
6. 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).
7. (a) The Trustees and their officers, directors,
agents and servants (collectively, the "Fiduciary Indemnified Persons")
shall not be liable, responsible or accountable in damages or otherwise
to the Trust, the Depositor, the Trustees or any holder of the
Preferred Securities (the Trust, the Depositor and any holder of the
Preferred Securities being a "Covered Person") for any loss, damage or
claim incurred by reason of any act or omission performed or omitted by
the Fiduciary Indemnified Persons in good faith on behalf of the Trust
and in a manner the Fiduciary Indemnified Persons reasonably believed
to be within the scope of authority conferred on the Fiduciary
Indemnified Persons by this Trust Agreement or by law, except that the
Fiduciary Indemnified Persons shall be liable for any such loss, damage
or claim incurred by reason of the Fiduciary Indemnified Person's gross
negligence or willful misconduct with respect to such acts or
omissions.
(b) The Fiduciary Indemnified Persons shall be fully
protected in relying in good faith upon the records of the Trust and
upon such information, opinions, reports or statements presented to the
Trust by any person as to matters the Fiduciary Indemnified Persons
reasonably believe are within such other person's professional or
expert competence and who has been selected with reasonable care by or
on behalf of the Trust, 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 of Preferred
Securities might properly be paid.
(c) The Depositor agrees, to the fullest extent
permitted by applicable law, (i) to indemnify and hold harmless each
Fiduciary Indemnified Person from and against any loss, damage,
liability, tax, penalty, expense or claim of any kind or nature
whatsoever incurred by the Fiduciary Indemnified Persons by reason of
the creation, operation or termination of the Trust in a manner the
Fiduciary Indemnified Persons reasonably believed to be within the
scope of authority conferred on the Fiduciary Indemnified Persons by
this Trust Agreement, except that no Fiduciary Indemnified Persons
shall be entitled to be indemnified in respect of any loss, damage,
liability, tax, penalty, expense or claim incurred by the Fiduciary
Indemnified Persons by reason of gross negligence or willful misconduct
with respect to such acts or omissions, and (ii) to advance expenses
(including legal fees) incurred by a Fiduciary Indemnified Person in
defending any claim, demand, action, suit or proceeding, from time to
time, prior to the final disposition of such claim, demand, action,
suit or proceeding, upon receipt by the Trust of an undertaking by or
on behalf of such Fiduciary Indemnified Persons to repay
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such amount if it shall be determined that such Fiduciary Indemnified
Person is not entitled to be indemnified as authorized in the preceding
subsection.
(d) The provisions of Section 7 shall survive the
resignation or removal of the Fiduciary Indemnified Persons or the
termination of this Trust Agreement.
8. This Trust Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original and all of which
taken together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed as of the day and year first above written.
VISTEON CORPORATION,
as Depositor
By:/s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Assistant Treasurer
BANK ONE DELAWARE, INC.,
as Trustee
By:/s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Vice President
BANK ONE TRUST COMPANY, N.A.,
as Trustee
By:/s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Vice President
/s/ Xxxx Xxxxxxx
XXXX XXXXXXX, as Trustee
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