EXHIBIT 4.13
DECLARATION OF TRUST
OF
CUMMINS CAPITAL TRUST II
THIS DECLARATION OF TRUST is made as of May 15, 2002 (this "Declaration"),
by and among Cummins Inc., as depositor (the "Depositor"), The Bank of New York
(Delaware), a Delaware banking corporation, and BNY Midwest Trust Company, as
trustees (collectively, the "Trustees"). The Depositor and the Trustees hereby
agree as follows:
1. The trust created hereby shall be known as "Cummins Capital Trust II"
(the "Trust"), 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
Trust the sum of $10. Such amount shall constitute the initial trust estate.
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. (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 such form as the Trustees may approve.
3. The Depositor and the Trustees will enter into an Amended and Restated
Declaration of Trust, satisfactory to each such party and having substantially
the terms described in the Offering Circular (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 Declaration of Trust,
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 Depositor and the Trustees, hereby authorize and direct the
Depositor, as depositor of the Trust, (i) to prepare and 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 or
such other form or forms as may be appropriate (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, of the Preferred Securities of the Trust
and possibly certain other securities and (b) if the Depositor deems it
advisable, 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) if the Depositor
deems it advisable, to file with the New York Stock Exchange, Inc., or any
other automated quotation system, exchange or over-the-counter market (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 registers 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 negotiate the terms of and execute, deliver and perform on
behalf of the Trust an underwriting or other purchase agreement among the
Trust, the Depositor and any underwriter(s), dealer(s) or agent(s) relating to
the Preferred Securities, as the Depositor, on behalf of the Trust, may deem
necessary or desirable; (v) to execute and deliver letters or documents to, or
instruments for filing with, a depository relating to the Preferred Securities
of the Trust; (vi) to execute, deliver and perform on behalf of the Trust one
or more purchase agreements, registration rights agreements, escrow agreements
and other related agreements providing for or relating to the sale of the
Preferred Securities of the Trust; and (vii) to execute on behalf of the Trust
any and all documents, papers and instruments as may be desirable in
connection with any of the foregoing.
In the event that any filing referred to in this Section 4 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 the Trustees, the
Trustees, in their capacity as trustees of the Trust, are hereby authorized
and 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 Trustees, 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, an Exchange or state securities
or Blue Sky laws.
5. This Declaration may be executed in one or more counterparts.
6. The number of trustees of the Trust initially shall be two and
thereafter the number of trustees of the Trust 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 of the Trust; provided,
however, that to the extent required by the Business Trust Act, one trustee of
the 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 Depositor
is entitled to appoint or remove without cause any trustee of the Trust at any
time. Any trustee of the Trust may resign upon thirty days' prior notice to
the Depositor.
7. The Depositor hereby agrees to (i) compensate the Trustees for their
services hereunder in an amount separately agreed to by the Depositor and the
Trustees, (ii) reimburse the Trustees for all reasonable expenses (including
reasonable fees and expenses of counsel and other experts) and (iii)
indemnify, defend and hold harmless the Trustees and any of the officers,
directors, employees and agents of the Trustees (the "Indemnified Persons")
from and against any and all losses, damages,
liabilities, claims, actions,
suits, costs, expenses, disbursements (including reasonable fees and expenses
of its 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 asserted at any time against such Indemnified Person with
respect to the performance of this Declaration, the creation, operation or
termination of the Trust or the transactions contemplated hereby; provided,
however, that the Depositor 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. The obligations of the
Depositor under this Section 9 shall survive the termination of this
Declaration.
8. This Declaration of Trust 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]
IN WITNESS WHEREOF, the parties hereto have caused this Declaration to be
duly executed as of the day and year first above written.
CUMMINS INC., as Depositor
By: /s/ Xxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President-Treasurer
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Senior Vice President
BNY MIDWEST TRUST COMPANY,
as Property Trustee
By: /s/ X. Xxxxxx
--------------------------------
Name: X. Xxxxxx
Title: Assistant Vice President
