<PAGE>
As filed with the Securities and Exchange Commission on July 23, 1998
REGISTRATION NO. 333-59183
333-______
333-______
333-______
333-______
333-______
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 1 TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
DILLARD'S, INC. DELAWARE 73-0388071
DILLARD'S CAPITAL TRUST I DELAWARE To Be Applied For
DILLARD'S CAPITAL TRUST II DELAWARE To Be Applied For
DILLARD'S CAPITAL TRUST III DELAWARE To Be Applied For
DILLARD'S CAPITAL TRUST IV DELAWARE To Be Applied For
DILLARD'S CAPITAL TRUST V DELAWARE To Be Applied For
(Exact name of each Registrant (State or other jurisdiction (I.R.S. Employer
as specified in its charter) of incorporation or Identification No.)
organization)
1600 Cantrell Road
Little Rock, Arkansas 72201
(501) 376-5200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
Paul J. Schroeder, Jr. James I. Freeman
1600 Cantrell Road 1600 Cantrell Road
Little Rock, Arkansas 72201 Little Rock, Arkansas 72201
(501) 376-5200 (501) 376-5200
Paul B. Benham III
Friday, Eldredge & Clark
400 West Capitol Avenue, Suite 2000
Little Rock, Arkansas 72201-3493
(501) 376-2011
(Name, address, including zip code, and telephone number,
including area code, of agents for service)
Copy to:
Gary I. Horowitz
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017
(212) 455-2000
------------------------
Approximate date of commencement of proposed sale to the public: From time to
time after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. [_]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933 ("Securities Act"), other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. [x]
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434 under
the Securities Act, please check the following box. [_]
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
Proposed
Title of Each Maximum
Class of Aggregate Amount of
Securities to Offering Registration
be Registered(1) Price(2)(3) Fee
- --------------------------------------------------------------------------------
Dillard's, Inc.
Debt Securities(4); Class A )
Common Stock, par value )
$.01 per share(5); Preferred )
Stock, par value $.01 per )
share(5) )
Dillard's Capital Trust I )
Capital Securities )
Dillard's Capital Trust II )
Capital Securities )
Dillard's Capital Trust III ) $2,500,000,000 (7)
Capital Securities )
Dillard's Capital Trust IV )
Capital Securities )
Dillard's Capital Trust V )
Capital Securities )
Guarantees of Dillard's,
Inc. with respect to
Capital Securities(6)
- --------------------------------------------------------------------------------
(1) Securities registered hereunder may be sold separately, together or as
units with other securities registered hereunder.
(2) Or, if any securities are issued with an original issue discount, such
amount that the aggregate initial offering price of all securities
registered hereunder will not exceed $2,500,000,000 or, if any of the
securities registered hereunder are issued with an offering price payable
in a foreign currency or composite currently, such amount as shall result
in an aggregate initial offering price equivalent to $2,500,000,000 at the
time of the initial offering.
(3) Estimated solely for the purpose of calculating the registration fee, in
accordance with Rule 457(o). Exclusive of accrued interest, if any.
(4) Plus such indeterminate amount of Debt Securities as may be issued in
connection with the issuance of Capital Securities of Dillard's Capital
Trust I, Dillard's Capital Trust II, Dillard's Capital Trust III, Dillard's
Capital Trust IV and Dillard's Capital Trust V (the "Capital Securities").
Such Debt Securities will be issued for no additional consideration.
(5) In addition to any Class A Common Stock or Preferred Stock that may be
issued directly under this Registration Statement, there are being
registered hereunder such indeterminate number of shares of Class A Common
Stock as may be issued upon conversion or exchange of Debt Securities or
Preferred Stock. No additional consideration will be received for any Class
A Common Stock so issued upon conversion or exchange.
(6) No additional consideration will be received from the Dillard's, Inc.
Guarantees with respect to the Capital Securities.
(7) The Company paid a filing fee of $590,000 when it initially filed this
Registration Statement. As set forth below, an additional $500,000,000
aggregate principal amount of debt securities is being carried forward by
the Company in this Registration Statement pursuant to Rule 429. A filing
fee of $149,106.06 was paid by the Company in connection with such
securities.
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
Pursuant to Rule 429, the prospectus filed as a part of this Registration
Statement is being filed as a combined prospectus in compliance with the
undertaking contained in Registration Statement No. 333-51603.
<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+ +
+INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A +
+REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE +
+SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY +
+OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT +
+BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR +
+THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE +
+SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE +
+UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF +
+ANY SUCH STATE. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
PROSPECTUS (SUBJECT TO COMPLETION, ISSUED JULY , 1998)
$2,500,000,000
DILLARD'S, INC.
DEBT SECURITIES
EQUITY SECURITIES
DILLARD'S CAPITAL TRUST I
DILLARD'S CAPITAL TRUST II
DILLARD'S CAPITAL TRUST III
DILLARD'S CAPITAL TRUST IV
DILLARD'S CAPITAL TRUST V
CAPITAL SECURITIES
FULLY AND UNCONDITIONALLY GUARANTEED,
TO THE EXTENT DESCRIBED HEREIN, BY
DILLARD'S, INC.
Dillard's, Inc. (the "Company"), may offer and issue from time to time,
together or separately, (i) its debt securities ("Debt Securities") in one or
more series, (ii) shares of its Class A Common Stock, par value $.01 per share
("Class A Common Stock") and (iii) shares of its Additional Preferred Stock,
par value $.01 per share ("Preferred Stock" and, together with the Class A
Common Stock, "Equity Securities"), with such terms as are described herein and
in the applicable Prospectus Supplement.
Dillard's Capital Trust I, Dillard's Capital Trust II, Dillard's Capital
Trust III, Dillard's Capital Trust IV and Dillard's Capital Trust V, each a
trust created under the laws of the State of Delaware (each an "Issuer Trust,"
and collectively, the "Issuer Trusts"), may severally offer and issue from time
to time equity securities (the "Capital Securities") representing preferred
beneficial ownership interests in such Issuer Trust with such terms as are
described herein and in the applicable Prospectus Supplement. The Company will
be the owner, directly or indirectly, of the common securities (the "Common
Securities" and, together with the Capital Securities, the "Trust Securities")
representing common beneficial ownership interests in each Issuer Trust.
Payment to holders of Capital Securities of cash distributions thereon
("Distributions"), and amounts payable upon redemption thereof, liquidation of
the applicable Issuer Trust or otherwise, will be guaranteed by the Company to
the extent described herein and in the applicable Prospectus Supplement (each,
a "Guarantee"). The only assets of an Issuer Trust will be Debt Securities
purchased from the Company with the proceeds from the issuance of its Trust
Securities. Each Guarantee will rank pari passu with the Debt Securities
purchased with the proceeds of the Capital Securities covered by such
Guarantee. If specified in the applicable Prospectus Supplement, such Debt
Securities may be distributed pro rata to holders of Trust Securities at such
times as may be described herein or in such Prospectus Supplement.
The Debt Securities, Equity Securities, Capital Securities and Guarantees are
sometimes herein referred to individually as a "Security" and collectively as
the "Securities." This Prospectus may not be used to consummate sales of
Securities unless accompanied by a Prospectus Supplement.
-----------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
-----------
Securities may be offered through dealers, underwriters or agents designated
from time to time, as set forth in the accompanying Prospectus Supplement. Net
proceeds to the Company will be the purchase price in the case of sales to a
dealer, the public offering price less discount in the case of sales to an
underwriter or the
(continued on next page)
<PAGE>
(continued from previous page)
purchase price less commission in the case of sales through an agent--in each
case, less other expenses attributable to issuance and distribution. See "Plan
of Distribution" for possible indemnification arrangements for dealers,
underwriters and agents.
The aggregate initial public offering price of all Equity Securities, Debt
Securities (other than Debt Securities purchased by Issuer Trusts) and Capital
Securities issued pursuant to the Registration Statement of which this
Prospectus forms a part shall not exceed $2,500,000,000 or the equivalent
thereof in any foreign currency or composite currency. Unless specified in the
applicable Prospectus Supplement, the Debt Securities and the Capital
Securities will be issued in registered form without coupons.
Certain specific terms of the Securities in respect of which this Prospectus
is being delivered will be described in the accompanying Prospectus
Supplement, including without limitation and where applicable, (a) in the case
of the Debt Securities, series designation, ranking, aggregate principal
amount, denominations, maturity date (including any provisions for the
shortening or extension thereof), interest payment dates, interest rate (which
may be fixed or variable) or method of calculating interest, if any, interest
deferral terms, if any, place or places where and currency or currency units
in which principal, premium, if any, and interest, if any, will be payable,
any terms of redemption, any sinking fund provisions, terms for any conversion
or exchange into Class A Common Stock or other securities, initial offering or
purchase price, methods of distribution and any other special terms, and (b)
in the case of Capital Securities, the identity of the Issuer Trust, title,
aggregate stated liquidation amount, number of securities, Distribution rate
or method of calculating such rate, Distribution payment dates, applicable
Distribution deferral terms, if any, place or places where and currency or
currency units in which Distributions and other amounts will be payable, any
terms of redemption, exchange, initial offering or purchase price, methods of
distribution and any other special terms, and (c) in the case of Preferred
Stock, the specific title and stated value, any dividend, liquidation,
redemption, voting and other rights, any terms for conversion into Class A
Common Stock, the initial offering or purchase price, methods of distribution
and any other special terms.
The applicable Prospectus Supplement also will contain information, as
applicable, about certain United States federal income tax consequences
relating to the Securities and will set forth the name of and compensation to
each dealer, underwriter or agent (if any) involved in the sale of the
Securities being offered and the managing underwriters with respect to any
Securities sold to or through underwriters.
No dealer, salesperson or other person has been authorized in connection
with any offering made hereby to give any information or to make any
representations not contained or incorporated by reference in this Prospectus
and, if given or made, such information or representation must not be relied
upon as having been authorized by the Company or any underwriter agent or
dealer. This Prospectus does not constitute an offer to sell or a solicitation
of an offer to buy any security other than the Securities offered hereby, nor
does it constitute an offer to sell or a solicitation of an offer to buy the
Securities to any person in any jurisdiction in which it is unlawful to make
such offer or solicitation to such person. Neither the delivery of this
Prospectus nor any sale made hereunder shall, under any circumstances, create
any implication that the information contained herein is correct as of any
date subsequent to the date hereof or that there has been no change in the
affairs of the Company since the date hereof.
----------------
The date of this Prospectus is July , 1998.
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Act of 1934, as amended (the "Exchange Act"), and in accordance therewith
files reports, proxy statements and other information with the Securities and
Exchange Commission (the "Commission"). Reports, proxy statements and other
information filed by the Company with the Commission can be inspected and
copied at the public reference facilities maintained by the Commission at Room
1024, 450 Fifth Street, N.W., Washington, D.C. 20549 or at its Regional
Offices located at Citicorp Center, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661-2511 and at Seven World Trade Center, Suite 1300, New
York, New York 10048, and copies of such material can be obtained from the
Public Reference Section of the Commission, 450 Fifth Street, N.W.,
Washington, D.C. 20549, at prescribed rates. Additionally, such material may
be accessed at the Commission's Website (http:/www.sec.gov). Such material can
also be inspected at the offices of the New York Stock Exchange, 20 Broad
Street, New York, New York 10005 on which certain of the Company's securities
are listed.
This Prospectus constitutes a part of a Registration Statement filed by the
Company and the Issuer Trusts with the Commission under the Securities Act of
1933, as amended (the "Securities Act"). This Prospectus omits certain of the
information contained in the Registration Statement in accordance with the
rules and regulations of the Commission. Reference is hereby made to the
Registration Statement and to the related exhibits for further information
with respect to the Company, the Issuer Trusts and the Securities. Statements
contained herein concerning the provisions of any document are not necessarily
complete and, in each instance, reference is made to the copy of such document
filed as an exhibit to the Registration Statement or otherwise filed with the
Commission. Each such statement is qualified in its entirety by such
reference.
No separate financial statements of any Issuer Trust have been included
herein. The Company and the Issuer Trusts do not consider that such financial
statements would be material to holders of the Capital Securities because each
Issuer Trust is a newly formed special purpose entity, has no operating
history or independent operations and is not engaged in and does not propose
to engage in any activity other than holding Debt Securities as trust assets
and issuing the Trust Securities. See "The Issuer Trusts," "Description of
Capital Securities," "Description of Debt Securities" and "Description of
Guarantees." In addition, the Company does not expect that any of the Issuer
Trusts will be filing reports under the Exchange Act with the Commission.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission under the Exchange Act by
the Company are incorporated herein by reference:
(a) Annual Report on Form 10K for the fiscal year ended January 31, 1998;
(b) Quarterly Report on Form 10-Q for the quarter ended May 2, 1998;
(c) Current Reports on Form 8-K dated February 19, 1998 and May 16, 1998;
and
(d) Description of the Company's Class A Common Stock contained in its
Registration Statement on Form 8-A, dated June 7, 1989.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this Prospectus and prior
to the termination of the offering of the Securities shall be deemed to be
incorporated by reference in this Prospectus and to be a part hereof from the
date of filing of such documents. Any statement contained herein or in a
document incorporated or deemed to be incorporated by reference herein shall
be deemed to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein or in any subsequently filed document
that also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of
this Prospectus.
3
<PAGE>
Copies of the above documents (excluding exhibits) may be obtained upon
request without charge from the Company, 1600 Cantrell Road, Little Rock,
Arkansas 72201, Attention: James I. Freeman (telephone number 501-376-5200).
DISCLOSURE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus, including any documents that are incorporated by reference
as set forth in "Incorporation of Certain Documents by Reference," contains
forward-looking statements within the meaning of Section 27A of the Securities
Act and Section 21E of the Exchange Act. Such statements are indicated by
words or phrases such as "anticipates," "estimates," "projects," "management
believes," "the Company believes" and similar words or phrases. Such
statements involve risks and uncertainties and are subject to change based on
various important factors. The following factors, among others, could affect
the Company's financial performance and could cause actual results to differ
materially from those expressed or implied in any such forward-looking
statements: economic and weather conditions in the regions in which the
Company's stores are located and their effect on the buying patterns of the
Company's customers, changes in consumer spending patterns and debt levels,
trends in personal bankruptcies and the impact of competitive market forces.
4
<PAGE>
THE COMPANY
Dillard's, Inc. is a regional group of traditional department stores
operating, as of January 31, 1998, 270 stores in Alabama, Arizona, Arkansas,
California, Colorado, Florida, Georgia, Illinois, Indiana, Iowa, Kansas,
Kentucky, Louisiana, Mississippi, Missouri, Nebraska, Nevada, New Mexico,
North Carolina, Ohio, Oklahoma, South Carolina, Tennessee, Texas, Virginia,
Utah and Wyoming. The stores vary from 30,000 square feet to 409,000 square
feet in size, with the area of typical stores ranging between 80,000 to
220,000 square feet, and the average store size being approximately 160,000
square feet. The stores are owned either by the Company or a wholly owned
subsidiary, with the exception of 66 stores, which are leased from third
parties. The stores feature branded and private label goods in the middle to
upper-middle price ranges and cater to a broad spectrum of the population.
Most of the stores are full-line department stores and sell quality name-brand
and private label apparel and accessories for men, women and children, as well
as accessories for the home such as linens and domestics, china, silverware,
draperies and housewares. Special emphasis is placed on fashion-oriented
apparel.
The Company is incorporated under the laws of the State of Delaware. The
executive offices of the Company are located at 1600 Cantrell Road, Little
Rock, Arkansas 72201, telephone number: 501-376-5200.
RECENT DEVELOPMENT
The Company has entered into an Agreement and Plan of Merger, dated as of
May 16, 1998 (the "Merger Agreement"), providing for the acquisition of the
stock of Mercantile Stores Company, Inc. ("Mercantile"). Mercantile is a
conventional department store retailer engaged in the general merchandising
business. Mercantile operates 103 department stores and 16 home fashion stores
under 13 different names in a total of 17 states. A subsidiary, Mercantile
Credit Corp., provides servicing for Mercantile's private label credit
program.
MSC Acquisitions, Inc., a Delaware corporation ("NEWCO") and a newly formed
wholly owned subsidiary of the Company, has offered to purchase all of the
outstanding shares of Common Stock, par value $.14 2/3 per share (the
"Shares"), of Mercantile at a purchase price of $80 per Share, net to the
seller in cash without interest thereon.
The Merger Agreement provides that, following the completion of the offer,
NEWCO will be merged with and into Mercantile (the "Acquisition"). Following
the Acquisition, Mercantile will continue as the surviving corporation and
become a direct, wholly owned subsidiary of the Company.
Stockholders of Mercantile representing approximately 40% of the issued and
outstanding Shares have contractually agreed, among other things, to tender
their Shares in the offer, provide the Company with an irrevocable proxy,
grant an option at the $80 offer price and otherwise support the transaction
with the Company.
The offer is conditioned upon, among other things, there being validly
tendered and not properly withdrawn prior to the expiration date for the offer
a number of Shares which, together with any Shares owned, directly or
indirectly, by the Company or NEWCO, constitutes more than 50% of the voting
power (determined on a fully-diluted basis), on the date of purchase, of all
the securities entitled to vote generally in the election of directors or in a
merger (the "Minimum Condition"). If the Company purchases not less than that
number of Shares needed to satisfy the Minimum Condition, it will be able to
effect the Acquisition without the affirmative vote of any other stockholder
of Mercantile.
Under the Merger Agreement, the respective obligations of the Company, NEWCO
and Mercantile under the Acquisition shall be subject to the satisfaction at
or prior to the effective time of the Acquisition of the following conditions
(a) as required by the Delaware General Corporation Law (the "DGCL"), the
Merger Agreement shall have been approved by the affirmative vote of the
stockholders of Mercantile by the requisite vote in accordance with
Mercantile's Certificate of Incorporation and the DGCL (which Mercantile has
represented shall be solely the affirmative vote of a majority of the
outstanding Shares); (b) no statute, rule,
5
<PAGE>
regulation, executive order, decree, ruling, injunction or other order
(whether temporary, preliminary or permanent) shall have been enacted,
entered, promulgated or enforced by any United States, foreign, federal or
state court or governmental authority which prohibits, restrains, enjoins or
restricts the consummation of the Acquisition; (c) NEWCO shall have purchased
Shares pursuant to the offer and (d) any waiting period applicable to the
Acquisition under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended (the "HSR Act"), shall have been terminated or expired.
The Company believes that the Acquisition is highly probable although there
can be no assurance that the Acquisition will be completed.
The Company issued a press release on June 4, 1998, announcing the receipt
of a request by the Federal Trade Commission (the "FTC") for additional
information in connection with the Company's HSR Act filing. As a result of
the request by the FTC, NEWCO extended the period during which its tender
offer for Shares will remain open to 12:00 Midnight, New York City Time, on
Wednesday, August 5, 1998.
THE ISSUER TRUSTS
Each Issuer Trust is a statutory business trust created under Delaware law
pursuant to the filing of a certificate of trust with the Delaware Secretary
of State on July 14, 1998. Each Issuer Trust will be governed by an amended
and restated trust agreement (each, a "Trust Agreement") among the Company, as
Depositor, Chase Manhattan Bank Delaware, as Delaware Trustee, The Chase
Manhattan Bank, as Property Trustee (together with the Delaware Trustee, the
"Issuer Trustees") and two individuals selected by the holders of the Common
Securities to act as administrators with respect to such Issuer Trust (the
"Administrators") and the holders, from time to time, of the Trust Securities.
The Company, as the holder of the Common Securities, intends to select two
individuals who are employees or officers of or affiliated with the Company to
serve as the Administrators. Each Issuer Trust exists for the exclusive
purposes of (i) issuing and selling its Trust Securities, (ii) using the
proceeds from the sale of such Trust Securities to invest in a series of Debt
Securities and (iii) engaging in only those other activities necessary,
convenient or incidental thereto (such as registering the transfer of Trust
Securities). Accordingly, Debt Securities will be the sole assets of each
Issuer Trust, and payments under the Debt Securities owned by an Issuer Trust
will be the sole revenue of such Issuer Trust.
All of the Common Securities of each Issuer Trust will be owned directly or
indirectly by the Company. The Common Securities of an Issuer Trust will rank
pari passu, and payments will be made thereon pro rata, with the Capital
Securities of such Issuer Trust, except that upon the occurrence and
continuance of a Debenture Event of Default (as defined herein) arising as a
result of any failure by the Company to pay any amounts in respect of the Debt
Securities owned by such Issuer Trust when due, the rights of the Company as
holder of the Common Securities to payment in respect of Distributions and
payments upon liquidation, redemption or otherwise will be subordinated to the
rights of the holders of the Capital Securities of such Issuer Trust. See
"Description of Capital Securities--Subordination of Common Securities."
Unless otherwise specified in the applicable Prospectus Supplement, the
Company will acquire, directly or indirectly, Common Securities in an
aggregate liquidation amount equal to at least 3% of the total capital of each
Issuer Trust. Unless otherwise specified in the applicable Prospectus
Supplement, each Issuer Trust will have a term of approximately 40 years from
the date on which it initially issues its Capital Securities, but may dissolve
earlier as provided in the applicable Trust Agreement and described in the
applicable Prospectus Supplement. Unless otherwise specified in the applicable
Prospectus Supplement, the name and address of the Delaware Trustee for each
Issuer Trust will be Chase Manhattan Bank Delaware, 1201 Market Street,
Wilmington, Delaware 19801, and the name and address of the Property Trustee,
the Guarantee Trustee and the Debt Securities Trustee for each Issuer Trust
will be The Chase Manhattan Bank, 450 West 33rd Street, 15th Floor , New York,
New York 10001.
It is anticipated that no Issuer Trust will be subject to the reporting
requirements under the Exchange Act.
6
<PAGE>
USE OF PROCEEDS
The Issuer Trusts will use all proceeds from the sale of Trust Securities to
purchase Debt Securities from the Company. Unless otherwise set forth in the
applicable Prospectus Supplement, the Company intends to use the net proceeds
from the sale of its Equity Securities and/or Debt Securities (including Debt
Securities issued to the Issuer Trusts) for general corporate purposes, which
may include additions to working capital, financing of acquisitions, the
repurchase of outstanding Class A Common Stock and the repayment of
indebtedness or for such other purposes as are set forth in the applicable
Prospectus Supplement.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges for
the Company for each of the years in the five year period ended January 31,
1998 and for the three months ended May 2, 1998 and May 3, 1997. For purposes
of computing the ratio, earnings consist of earnings before income taxes plus
fixed charges (less capitalized interest of preferred stock dividends), and
fixed charges consist of interest expense, capitalized interest and the
interest portion of rent expense which is approximated at one-third of rent
expense.
<TABLE>
<CAPTION>
THREE MONTHS
ENDED FISCAL YEAR ENDED
------------------ ------------------------------------------------------------
MAY 2, MAY 3, JAN. 31, FEB. 1, FEB. 3, JAN. 28, JAN. 29,
1998 1997 1998 1997 1996* 1995 1994
------ ------ -------- ------- ------- -------- --------
<S> <C> <C> <C> <C> <C> <C>
3.61 3.63 3.69 3.61 2.86 3.72 3.57
</TABLE>
--------
*53 weeks
RATIO OF EARNINGS TO COMBINED FIXED CHARGES
AND PREFERRED STOCK DIVIDENDS
The following table sets forth the ratio of earnings to combined fixed
charges and preferred stock dividends for the Company for each of the years in
the five year period ended January 31, 1998 and for the three months ended May
2, 1998 and May 3, 1997. For purposes of computing the ratio, earnings consist
of earnings before income taxes plus fixed charges (less capitalized interest)
and preferred stock dividends, and fixed charges consist of interest expense,
capitalized interest and the interest portion of rent expense which is
approximated at one-third of rent expense.
<TABLE>
<CAPTION>
THREE MONTHS
ENDED FISCAL YEAR ENDED
------------------ ------------------------------------------------------------
MAY 2, MAY 3, JAN. 31, FEB. 1, FEB. 3, JAN. 28, JAN. 29,
1998 1997 1998 1997 1996* 1995 1994
------ ------ -------- ------- ------- -------- --------
<S> <C> <C> <C> <C> <C> <C>
3.61 3.62 3.69 3.61 2.86 3.72 3.57
</TABLE>
--------
*53 weeks
DESCRIPTION OF DEBT SECURITIES
The Debt Securities in respect of which this Prospectus is being delivered
(the "Offered Debt Securities") will constitute either senior or subordinated
debt of the Company and will be issued, in the case of Debt Securities that
will be senior debt, under an Indenture dated as of May 15, 1988, as
supplemented by a First Supplemental Indenture dated as of December 16, 1988,
a Second Supplemental Indenture dated as of September 14, 1990, and a Third
Supplemental Indenture to be entered into (the Indenture, as supplemented,
being referred to herein as the "Senior Debt Indenture") between the Company
and The Chase Manhattan Bank (formerly known as Chemical Bank), as Trustee,
and, in the case of Debt Securities that will be subordinated debt, under a
Subordinate Indenture to be entered into between the Company and The Chase
Manhattan Bank, as Trustee (the "Subordinated Debt Indenture"), copies of
which are fixed as exhibits to the Registration Statement. The Senior
7
<PAGE>
Debt Indenture and Subordinated Debt Indenture are sometimes hereinafter
referred to individually as an "Indenture" and collectively as the
"Indentures." The following summaries of certain provisions of the Indentures
do not purport to be complete and are subject to, and are qualified in their
entirety by reference to, all the provisions of the Indentures, including the
definitions therein of certain terms. Whenever particular sections of, or
terms defined in, the Indentures are referred to, such sections or defined
terms are incorporated herein by reference.
GENERAL
The Debt Securities will be either unsecured senior or subordinated
obligations of the Company.
Neither Indenture limits the aggregate principal amount of the Debt
Securities or of any particular series of Offered Debt Securities and provides
that Debt Securities may be issued thereunder from time to time in one or more
series. All Debt Securities of any series need not be issued at the same time
or bear interest at the same rate or mature on the same date.
Reference is made to the Prospectus Supplement (the "Prospectus Supplement")
relating to the Offered Debt Securities for the following terms thereof: (1)
the title of the Offered Debt Securities; (2) classification as senior or
subordinated Debt Securities; (3) any limit on the aggregate principal amount
of the Offered Debt Securities; (4) the date or dates on which the Offered
Debt Securities will mature; (5) the rate or rates per annum (or the method of
calculating such rates) at which the Offered Debt Securities will bear
interest, if any, and the date from which such interest, if any, will accrue;
(6) the Interest Payment Dates on which any such interest on the Offered Debt
Securities will be payable, the Regular Record Date for any interest payable
on any Offered Debt Securities on any Interest Payment Date, any provisions
relating to the deferral of interest, and the extent to which, or the manner
in which, any interest payable on a global Debt Security (a "Global Note") on
an Interest Payment Date will be paid if other than in the manner described
under "Global Notes" below; (7) the dates, if any, on which and the price or
prices at which the Offered Debt Securities may, pursuant to any mandatory or
optional sinking fund provisions, be redeemed by the Company and other
detailed terms and provisions of any such sinking funds; (8) the date, if any,
after which and the price or prices at which the Offered Debt Securities may,
pursuant to any optional redemption provisions, be redeemed at the option of
the Company or of the holder thereof and other detailed terms and provisions
of any such optional redemption; (9) the right of the Company to defease the
Offered Debt Securities or certain covenants under the Indentures; (10) the
currency or currencies, which may be a composite currency such as the European
Currency Unit, of payment of principal of and premium, if any, and interest on
the Offered Debt Securities, if other than U.S. dollars; (11) whether the
Offered Securities are to be issued with original issue discount within the
meaning of Section 1273(a) of the Internal Revenue Code of 1986, as amended
(the "Code"), and the regulations thereunder; (12) whether the Offered
Securities are to be issued in whole or in part in the form of one or more
Global Notes and, if so, the identity of the depositary, if any, for such
Global Note or Notes; (13) any addition to, or modification or deletion of,
any Events of Default or covenants provided for with respect to the Offered
Securities; (14) any index used to determine the amount of payments of
principal of and premium, if any, and interest on the Offered Debt Securities;
and (15) any other terms of the Offered Debt Securities not inconsistent with
the terms of the Indentures.
Unless otherwise indicated in the Prospectus Supplement relating thereto,
principal of and any premium and interest on the Offered Debt Securities will
be payable, and the Offered Debt Securities will be exchangeable and transfers
thereof will be registrable, at the corporate trust office of the Trustee in
New York, New York, provided that, at the option of the Company, payment of
any interest may be made by check mailed to the address of the person entitled
thereto as it appears in the Security Register. Unless otherwise indicated in
the Prospectus Supplement relating thereto, payment of any interest due on any
Offered Debt Security will be made to the Person in whose name such Offered
Debt Security is registered at the close of business on the Regular Record
Date for such interest. (Indentures, Sections 301, 305, 307 and 1002)
Unless otherwise indicated in the Prospectus Supplement relating thereto,
the Offered Debt Securities will be issued only in fully registered form
without coupons in denominations of $1,000 or any integral multiple
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thereof, and no service charge will be made for any transfer or exchange of
such Offered Debt Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith. (Indentures, Sections 302 and 305)
Debt Securities may be issued under either Indenture as Original Issue
Discount Securities to be offered and sold at a substantial discount from the
principal amount thereof. Special Federal income tax, accounting and other
considerations applicable thereto will be described in the Prospectus
Supplement relating to any such Original Issue Discount Securities.
SENIOR DEBT
Debt Securities that will constitute part of the senior debt of the Company
will be issued under the Senior Debt Indenture and will rank pari passu with
all other unsecured and unsubordinated debt of the Company.
SUBORDINATED DEBT
Debt Securities that will constitute part of the subordinated debt of the
Company will be issued under the Subordinated Debt Indenture.
Debt Securities issued under the Subordinated Debt Indenture will be
subordinate and junior in right of payment, to the extent and in the manner
set forth in the Subordinated Debt Indenture, to all "Senior Indebtedness," as
defined therein, of the Company. The Subordinated Debt Indenture defines
"Senior Indebtedness" as obligations (other than nonrecourse obligations, the
Debt Securities issued under the Subordinated Debt Indenture and any other
obligations specifically designated as being subordinate in right of payment
to such Senior Indebtedness) of, or guaranteed or assumed by, the Company for
borrowed money or evidenced by bonds, debentures, notes or other similar
instruments, and amendments, renewals, extensions, modifications and
refundings of any such indebtedness or obligations. (Subordinated Debt
Indenture, Section 1.01)
In the event (a) of any insolvency or bankruptcy proceedings, or any
receivership, liquidation, reorganization or other similar proceeding in
respect of the Company or a substantial part of its property, or (b) that (i)
a default shall have occurred with respect to the payment of principal of (and
premium, if any) or any interest on or other monetary amounts due and payable
on any Senior Indebtedness (as defined in the Subordinated Debt Indenture) or
(ii) there shall have occurred an event of default (other than a default in
the payment of principal, premium, if any, or interest, or other monetary
amounts due and payable) with respect to any Senior Indebtedness, as defined
in the Subordinated Debt Indenture or in the instrument under which the same
is outstanding, permitting the holder or holders thereof to accelerate the
maturity thereof (with notice or lapse of time, or both), and such event of
default shall have continued beyond the period of grace, if any, in respect
thereof, and such default or event of default shall not have been cured or
waived or shall not have ceased to exist, or (c) that the principal of and
accrued interest on Debt Securities issued under the Subordinated Debt
Indenture shall have been declared due and payable upon an Event of Default
pursuant to Section 5.01 of the Subordinated Debt Indenture and such
declaration shall not have been rescinded and annulled as provided therein,
then the holders of all Senior Indebtedness (as defined in the Subordinated
Debt Indenture) shall first be entitled to receive payment of the full amount
unpaid thereon, or provision shall be made for such payment in money or
money's worth, before the holders of any of Debt Securities issued under the
Subordinated Debt Indenture are entitled to receive a payment on account of
the principal of (and premium, if any) or any interest on the indebtedness
evidenced by such Debt Securities. (Subordinated Debt Indenture, Section
13.01) If this Prospectus is being delivered in connection with a series of
Debt Securities issued under the Subordinated Debt Indenture, the accompanying
Prospectus Supplement or the information incorporated herein by reference will
set forth the approximate amount of Senior Indebtedness (as defined in the
Subordinated Debt Indenture) outstanding as of the end of the most recent
fiscal quarter.
CERTAIN COVENANTS OF THE COMPANY
Restrictions on Liens. The Senior Debt Indenture provides that the Company
will not, and will not permit any Restricted Subsidiary to, issue, assume or
guarantee any Indebtedness secured by any mortgage, security
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interest, pledge, lien or other encumbrance (herein referred to as a
"Mortgage" or "Mortgages") upon any Operating Property or Operating Asset of
the Company or any Restricted Subsidiary, whether such assets are now owned or
hereafter acquired, without in any such case effectively providing that the
Debt Securities (together with, if the Company shall so determine, any other
Indebtedness ranking equally with the Debt Securities) shall be secured
equally and ratably with such Indebtedness except that the foregoing
restrictions shall not apply to (i) the giving, simultaneously with or within
180 days after the latest of May 15, 1988, or the acquisition or construction
of such property, of a purchase money Mortgage on property acquired or
constructed after May 15, 1988, or the acquisition after May 15, 1988, of
property subject to any Mortgage which is limited to such property and which
secures Indebtedness not in excess of the lesser of the cost or fair market
value of such property, (ii) the giving by the Company or a Restricted
Subsidiary of a Mortgage on real property which is the sole security for
Indebtedness incurred within two years after the latest of May 15, 1988, the
acquisition of the property or completion of the first substantial
improvements thereon, provided that the Indebtedness does not exceed the
lesser of the cost of the property and improvements or their fair market value
and the holder of such Indebtedness is entitled to enforce its payment only by
resorting to such security, and (iii) Mortgages, or renewals thereof, existing
on the date of the Senior Debt Indenture or on assets of a Restricted
Subsidiary existing on the date it became a Subsidiary. Notwithstanding the
foregoing, the Company or any Restricted Subsidiary may create or assume
Mortgages in addition to those permitted above, and renew, extend or replace
such Mortgages provided that at the time of such creation, assumption,
renewal, extension or replacement, and after giving effect thereto, Exempted
Debt does not exceed 5% of Consolidated Net Tangible Assets. (Senior Debt
Indenture, Section 1007) On May 15, 1988, no Operating Properties were subject
to any liens.
Restrictions on Sale and Leaseback Transactions. The Senior Debt Indenture
provides that the Company will not, nor will it permit any Restricted
Subsidiary to, enter into any arrangement with any person providing for the
leasing by the Company or any Restricted Subsidiary of any Operating Property
or Operating Asset which has been or is to be sold or transferred by the
Company or such Restricted Subsidiary to such person (a "Sale and Leaseback
Transaction") unless the net proceeds of such sale or transfer have been
determined by the Company's Board of Directors to be at least equal to the
fair value of such Operating Property or Operating Assets at the time of such
sale and transfer and (i) within 180 days after the receipt of the proceeds of
such sale and transfer, either the Company or any Restricted Subsidiary
applies an amount equal to such net proceeds to the prepayment or retirement
(other than any mandatory prepayment or retirement) of Senior Funded Debt of
the Company or such Restricted Subsidiary, or (ii) the Company or such
Restricted Subsidiary would be entitled, at the time of the effective date of
such sale or transfer, to incur indebtedness secured by a Mortgage on such
Operating Property or Operating Assets in an amount at least equal to the
Attributable Debt in respect thereof, without equally and ratably securing the
Debt Securities pursuant to the "Restrictions on Liens" described above. The
foregoing restriction shall not apply to (i) any Sale and Leaseback
Transaction for a term of not more than two years, including renewals, (ii) in
the case of any Operating Property acquired or constructed subsequent to May
15, 1986, any Sale and Leaseback Transaction with respect thereto (including
presently owned real property upon which such Operating Property is to be
constructed) if a binding commitment is entered into within two years after
the later of the acquisition of the property or completion of the first
substantial improvements thereon and (iii) any Sale and Leaseback Transaction
between the Company and a Restricted Subsidiary or between Restricted
Subsidiaries provided that the lessor shall be the Company or a whollyowned
Restricted Subsidiary. (Senior Debt Indenture, Section 1008)
Exempted Debt. Notwithstanding the restrictions in the Senior Debt Indenture
on (i) Mortgages and (ii) Sale and Leaseback Transactions, the Company or its
Restricted Subsidiaries may, in addition to amounts permitted under such
restrictions, create Indebtedness secured by Mortgages, or enter into Sale and
Leaseback Transactions, provided that, after giving effect thereto, the
aggregate outstanding amount of all such Indebtedness secured by Mortgages
plus Attributable Debt resulting from such Sale and Leaseback Transactions
does not exceed 5% of Consolidated Net Tangible Assets (collectively, the
"Exempted Debt"). (Senior Debt Indenture, Sections 1007(b) and 1008(b))
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No Special Protection in the Event of a Highly Leveraged Transaction. Unless
otherwise indicated in the Prospectus Supplement relating thereto, the terms
of the Offered Debt Securities will not afford the holders special protection
in the event of a highly leveraged transaction.
CERTAIN DEFINITIONS
Set forth below are certain significant terms which are defined in Section
101 of the Senior Debt Indenture:
"Attributable Debt" in respect of a Sale and Leaseback Transaction means, at
the time of determination, the present value (discounted at the actual rate of
interest of such transaction) of the obligation of the lessee for net rental
payments during the remaining term of the lease included in such Sale and
Leaseback Transaction (including any period for which such lease has been
extended or may, at the option of the lessor, be extended).
"Capitalized Lease Obligations" means obligations created pursuant to leases
which are required to be shown on the liability side of a balance sheet in
accordance with generally accepted accounting principles.
"Consolidated" when used with respect to any of the terms defined in the
Senior Debt Indenture, refers to such terms as reflected in a consolidation of
the accounts of the Company and its Restricted Subsidiaries in accordance with
generally accepted accounting principles.
"Funded Debt" means indebtedness which matures more than one year from the
date of computation, or which is extendable or renewable at the sole option of
the obligor so that it may become payable more than one year from such date,
but, generally, shall not include obligations created pursuant to leases.
"Indebtedness" means, generally, all obligations for borrowed money,
including obligations secured by liens on property owned by a person whether
or not such person is directly liable therefor.
"Investment" means and includes any investment in stock, evidences of
indebtedness, loans or advances, however made or acquired, but shall not
include accounts receivable of the Company or of any Restricted Subsidiary
arising from transactions in the ordinary course of business, or any evidences
of indebtedness, loans or advances made in connection with the sale to any
Subsidiary of accounts receivable of the Company or any Restricted Subsidiary
arising from transactions in the ordinary course of business of the Company or
any Restricted Subsidiary.
"Net Tangible Assets" means the total amounts of assets (less depreciation
and valuation reserves and other reserves and items deductible from gross book
value of specific asset accounts under generally accepted accounting
principles) which under generally accepted accounting principles would be
included on a balance sheet after deducting therefrom (i) all liability items
except Funded Debt, Capitalized Lease Obligations, stockholders' equity and
reserves for deferred income taxes, (ii) all goodwill, trade names,
trademarks, patents, unamortized debt discount and expense and other like
intangibles, which in each such case would be so included on such balance
sheet, (iii) Investments (less applicable reserves) in, or equity in the net
assets of, NonRestricted Subsidiaries in excess of the amount of such
Investments and equity in net assets on January 30, 1988, and (iv) capitalized
property rights created pursuant to Capitalized Lease Obligations. As of
January 30, 1988, the amount of Investments in, or equity in the net assets
of, NonRestricted Subsidiaries totaled approximately $308,320,000.
"Operating Assets" means all merchandise inventories, furniture, fixtures
and equipment (including all transportation and warehousing equipment but
excluding office equipment and data processing equipment) owned by the Company
or a Restricted Subsidiary.
"Operating Property" means all real property and improvements thereon owned
by the Company or a Restricted Subsidiary and constituting, without
limitation, any store, warehouse, service center or distribution center
wherever located; provided that such term shall not include any store,
warehouse, service center or distribution center which the Company's Board of
Directors declares by resolution not to be of material importance to the
business of the Company and its Restricted Subsidiaries.
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"Restricted Subsidiaries" means all Subsidiaries other than NonRestricted
Subsidiaries. "NonRestricted Subsidiaries" means (i) any Subsidiary so
designated by the Board of Directors of the Company in accordance with the
Indenture, and (ii) any other Subsidiary of which the majority of the voting
stock is owned directly or indirectly by one or more NonRestricted
Subsidiaries. The Senior Debt Indenture provides that the Company's Board of
Directors may change the designations of Restricted Subsidiaries and
NonRestricted Subsidiaries. (Senior Debt Indenture, Section 1009) Initially
the Company will have no Restricted Subsidiaries.
"Senior Funded Debt" means all Funded Debt of the Company or any person
(except Funded Debt, the payment of which is subordinated to the payment of
the Debt Securities).
"Subsidiary" means any corporation of which at least a majority of the
outstanding stock having voting power under ordinary circumstances to elect a
majority of the board of directors of said corporation or business entity is
at the time owned or controlled by the Company, or by the Company and one or
more Subsidiaries, or by any one or more Subsidiaries.
MERGER AND CONSOLIDATION
Each Indenture provides that the Company may, without the consent of the
Holders of the Debt Securities, consolidate with or merge into any other
corporation, or convey, transfer or lease its properties and assets
substantially as an entirety to any person, provided that in any such case (i)
the successor corporation shall be a domestic corporation and such corporation
shall assume by a supplemental indenture the Company's obligations under such
Indenture and the Debt Securities, (ii) immediately after such transaction, no
Event of Default shall have happened and be continuing, and (iii) if as a
result of any such merger, consolidation, or such conveyance, transfer or
lease an Operating Property of the Company would become subject to a Mortgage
which would not be permitted under "Restrictions on Liens" described above,
the senior Debt Securities would be secured, equally and ratably with (or
prior to) all indebtedness so secured. Upon compliance with these provisions
by a successor corporation, the Company (except in the case of a lease) would
be relieved of its obligations under each Indenture and the Debt Securities.
(Indentures, Sections 801 and 802)
EVENTS OF DEFAULT
The following will be Events of Default under each Indenture with respect to
Debt Securities of any series: (a) default in payment of principal of or
premium, if any, on any Debt Security of that series when due; (b) default in
payment of any interest on any Debt Security of that series when due,
continued for 30 days; (c) default in the deposit of any sinking fund payment,
when due, in respect of any Debt Security of that series; (d) default in the
performance or breach of any other covenant or warranty of the Company in such
Indenture (other than a covenant or warranty a default in whose performance or
whose breach is elsewhere in such Indenture specifically dealt with or which
has been included in such Indenture solely for the benefit of series of Debt
Securities other than that series), continued for 60 days after written notice
as provided in such Indenture; (e) if so specified in the Prospectus
Supplement accompanying this Prospectus that this clause (e) shall apply to
the Debt Securities of that series (and set forth in the Prospectus Supplement
relating to the Debt Securities of that series), acceleration of any
indebtedness for money borrowed by the Company or any of its Subsidiaries
under the terms of the instrument under which such indebtedness is issued or
secured in an aggregate principal amount exceeding $20 million, if such
acceleration is not discharged within 10 days after written notice as provided
in such Indenture, or failure by the Company or any of its Subsidiaries to pay
any such indebtedness at the later of final maturity or upon expiration of any
applicable period of grace with respect to such principal amount, and such
failure to pay shall not have been cured by the Company or any of its
Subsidiaries within 30 days after such failure; (f) bankruptcy, insolvency or
reorganization; and (g) any other Event of Default provided with respect to
Debt Securities of that series. No Event of Default with respect to a
particular series of Debt Securities issued under such Indenture (except as to
such events in bankruptcy, insolvency or reorganization) necessarily
constitutes an Event of Default with respect to any other series of Debt
Securities issued thereunder. (Indentures, Section 501)
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If an Event of Default (other than an Event of Default specified in clause
(f) above) with respect to Debt Securities of any series at the time
Outstanding shall occur and be continuing, then and in every such case the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Debt Securities of that series may, by a notice in writing to the
Company (and to the Trustee if given by Holders), declare to be due and
payable immediately the principal amount (or, if the Debt Securities of that
series are Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms of that series) of all Debt Securities
of that series. However, at any time after such a declaration of acceleration
with respect to Debt Securities of any series has been made, but before a
judgment or decree for payment of the money due has been obtained by the
Trustee, the Holders of a majority in principal amount of Outstanding Debt
Securities of that series may, subject to certain conditions, rescind and
annul such acceleration if all Events of Default, other than the non-payment
of accelerated principal, with respect to Debt Securities of that series have
been cured or waived as provided in such Indenture. (Indentures, Section 502)
For information as to waiver of defaults, see "Modification and Waiver"
herein. Reference is made to the Prospectus Supplement relating to any series
of Offered Debt Securities which are Original Issue Discount Securities for
the particular provisions relating to acceleration of a portion of the
principal amount of such Original Issue Discount Securities upon the
occurrence of an Event of Default and the continuation thereof. If an Event of
Default specified in clause (f) above occurs, the principal amount (or, if the
Debt Securities of that series are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms of that
series) of all Debt Securities then outstanding shall ipso facto become and be
immediately due and payable without any declaration or other act on the part
of the Trustee or any Holder.
Subject to the provisions of the Indentures relating to the duties of the
Trustee in case an Event of Default shall occur and be continuing, each
Indenture provides that the Trustee will be under no obligation to exercise
any of its rights or powers under such Indenture at the request or direction
of any of the Holders, unless such Holders shall have offered to the Trustee
reasonable security and indemnity. (Indentures, Sections 601 and 603) Subject
to such provisions for security and indemnification of the Trustee and certain
other rights of the Trustee, the Holders of a majority in principal amount of
the Outstanding Debt Securities of any series shall have the right to direct
the time, method and place of conducting any proceedings for any remedy
available to the Trustee or exercising any trust or power conferred on the
Trustee with respect to the Debt Securities of that series. (Indentures,
Section 512)
No Holder of any Debt Security of any series will have any right to
institute any proceeding with respect to either Indenture or for any remedy
thereunder, unless such Holder shall have previously given to the Trustee
written notice of a continuing Event of Default with respect to Debt
Securities of that series and unless also the Holders of at least 25% in
principal amount of the Outstanding Debt Securities of that series shall have
made written request, and offered reasonable security and indemnity, to the
Trustee to institute such proceeding as trustee, and the Trustee shall not
have received from the Holders of a majority in principal amount of the
Outstanding Debt Securities of that series a direction inconsistent with such
request and shall have failed to institute such proceeding within 60 days.
(Indentures, Section 507) Notwithstanding the foregoing, the Holder of any
Debt Security will have an absolute and unconditional right to receive payment
of the principal of (and premium, if any) and any interest on such Debt
Security on or after the due dates expressed in such Debt Security and to
institute suit for the enforcement of any such payment. (Indentures, Section
508)
Each Indenture requires the Company to furnish to the Trustee annually a
statement as to compliance with such Indenture. (Indentures, Section 1011)
Each Indenture provides that the Trustee may withhold notice to the Holders of
Debt Securities of any series of any default (except in payment of principal,
any premium, interest or any sinking fund payments) with respect to Debt
Securities of such series if it considers it in the interest of the Holders of
Debt Securities of such series to do so. (Indentures, Section 602)
MODIFICATION AND WAIVER
Modifications and amendments of each Indenture may be made by the Company
and the Trustee with the consent of the Holders of 66 2/3% in principal amount
of the Outstanding Debt Securities of each series affected
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by such modifications or amendments; provided, however, that no such
modification or amendment may, without the consent of the Holder of each
Outstanding Debt Security affected thereby, (a) change the stated maturity
date of the principal of, or any installment of principal of or interest on,
any Debt Security, (b) reduce the principal amount of, or the premium (if any)
or any interest on, any Debt Security or reduce the amount of principal of an
Original Issue Discount Security that would be due and payable upon
acceleration, (c) change the place or currency of payment of principal of, or
premium (if any) or interest on, any Debt Security, (d) impair the right to
institute suit for the enforcement of any payment on or with respect to any
Debt Security after the stated maturity date, or (e) reduce the percentage in
principal amount of Outstanding Debt Securities of any series, the consent of
whose Holders is required for modification or amendment of such Indenture, for
waiver of compliance with certain provisions of such Indenture or for waiver
of certain defaults. (Indentures, Section 902)
The Holders of 66 2/3% in principal amount of the Outstanding Debt
Securities of any series may on behalf of the Holders of all Debt Securities
of that series waive, insofar as that series is concerned, compliance by the
Company with certain restrictive provisions of the applicable Indenture.
(Indentures, Section 1012) The Holders of a majority in principal amount of
the Outstanding Debt Securities of any series may on behalf of the Holders of
all Debt Securities of that series waive any past default under the applicable
Indenture with respect to that series except a default in the payment of the
principal of (or premium, if any) or any interest on any Debt Security of that
series or in respect of a provision which under such Indenture cannot be
modified or amended without the consent of the Holder of each Outstanding Debt
Security of that series affected. (Indentures, Section 513)
The Subordinated Debt Indenture may not be amended to alter the
subordination of any outstanding Debt Securities issued thereunder without the
written consent of each holder of Senior Indebtedness (as defined therein)
then outstanding that would be adversely affected thereby. (Subordinated Debt
Indenture, Section 8.06)
DEFEASANCE OF OFFERED DEBT SECURITIES OR CERTAIN COVENANTS IN CERTAIN
CIRCUMSTANCES
Defeasance and Discharge. Each Indenture provides that the Board of
Directors of the Company may provide by resolution that the Company will be
discharged from any and all obligations in respect of the Debt Securities of
any series (except for certain obligations to register the transfer or
exchange of Debt Securities of such series, to replace stolen, lost or
mutilated Debt Securities of such series, to maintain paying agencies and hold
moneys for payment in trust) upon the deposit with the Trustee, in trust, of
money and/or U.S. Government Obligations (as defined), which through the
payment of interest and principal thereof in accordance with their terms will
provide money in an amount sufficient to pay any installment of principal (and
premium, if any) and interest on and any mandatory sinking fund payments in
respect of the Debt Securities of such series on the stated maturity of such
payments in accordance with the terms of such Indenture and such Debt
Securities. Such discharge may only occur if (i) the Company has received
from, or there has been published by, the United States Internal Revenue
Service a ruling to the effect that such a discharge will not be deemed, or
result in, a taxable event with respect to Holders of the Debt Securities of
such series; and such discharge will not be applicable to any Debt Securities
of such series then listed on the New York Stock Exchange or any other
securities exchange if the provision would cause said Debt Securities to be
de-listed as a result thereof (Indentures, Section 403), and (ii) in the case
of the Subordinated Debt Indenture (a) no event or condition shall exist that
would prevent the Company from making payments of principal of (and premium,
if any) and interest on the Debt Securities issued pursuant to the
Subordinated Debt Indenture at the date of the irrevocable deposit referred to
above or at any time during the period ending on the 91st day after such
deposit date and (b) the Company delivers to the Debt Securities Trustee for
the Subordinated Debt Indenture an opinion of counsel to the effect that (1)
the trust funds will not be subject to any rights of holders of Senior
Indebtedness (as defined for purposes of the Subordinated Debt Indenture) and
(2) after the 91st day following the deposit, the trust funds will not be
subject to the effect of any applicable bankruptcy, insolvency, reorganization
or similar laws affecting creditors' rights generally, except that if a court
were to rule under any such law in any case or proceeding that the trust funds
remained property of the Company, then the relevant Debt Securities Trustee
and the holders of such Debt Securities would be entitled to certain rights as
secured creditors in such trust funds.
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Defeasance of Certain Covenants. The Senior Debt Indenture provides that the
Board of Directors of the Company may by resolution provide that the terms of
any series of Debt Securities may provide the Company with the option to omit
to comply with certain restrictive covenants described in Sections 1007
through 1009 of the Indentures. The Company, in order to exercise such option,
will be required to deposit with the Trustee money and/or U.S. Government
Obligations (as defined) which through the payment of interest and principal
thereof in accordance with their terms will provide money in an amount
sufficient to pay principal (and premium, if any) and interest on and any
mandatory sinking fund payments in respect of the Debt Securities of such
series on the stated maturity of such payments in accordance with the terms of
such Indenture and such Debt Securities. The Company will also be required to
deliver to the Trustee an opinion of counsel to the effect that the deposit
and related covenant defeasance will not cause the Holders of the Debt
Securities of such series to recognize income, gain or loss for Federal income
tax purposes. (Indentures, Section 1010)
Defeasance and Events of Default. In the event the Company exercises its
option to omit compliance with certain covenants of an Indenture with respect
to any series of Debt Securities and the Debt Securities of such series are
declared due and payable because of the occurrence of any Event of Default,
the amount of money and U.S. Government Obligations on deposit with the
Trustee will be sufficient to pay amounts due on the Debt Securities of such
series at the time of their Stated Maturity but may not be sufficient to pay
amounts due on the Debt Securities of such series at the time of the
acceleration resulting from such Event of Default. However, the Company shall
remain liable for such payments.
The Prospectus Supplement will state if any defeasance provision will apply
to the Offered Debt Securities.
CONCERNING THE TRUSTEE
The Chase Manhattan Bank (formerly known as Chemical Bank) ("Chase") is the
Trustee under the Indentures and is also the trustee under prior indentures
between the Company and Chase. Chase maintains normal banking relations with
the Company, including participating in and acting as Agent for a credit
agreement for the Company and Dillard Investment Co., Inc., a wholly owned
subsidiary of the Company ("DIC"). Chase also is the trustee under indentures
between DIC and Chase.
GOVERNING LAW
The Debt Securities and the Indentures will be governed by and construed in
accordance with the laws of the State of New York.
DESCRIPTION OF CAPITAL STOCK
The following description of the Company's capital stock is qualified in its
entirety by the provisions of the Company's Restated Certificate of
Incorporation, as amended, which is an exhibit to the registration statement
of which this Prospectus is a part.
GENERAL
The authorized capital stock of the Company consists of 5,000 shares of 5%
Cumulative Preferred Stock (the "5% Preferred Stock"), par value $100 per
share; 289,000,000 shares of Class A Common Stock, par value $.01 per share
(the "Class A Common Stock"); 11,000,000 shares of Class B Common Stock, par
value $.01 per share (the "Class B Common Stock"); and 10,000,000 shares of
Additional Preferred Stock, par value $.01 per share (the "Additional
Preferred Stock"). At July 14, 1998, 4,400 shares of the authorized 5%
Preferred Stock were issued and outstanding, 102,797,508 shares of the
authorized Class A Common Stock were issued and outstanding, 4,016,929 shares
of the Class B Common Stock were issued and outstanding, and no shares of
Additional Preferred Stock were issued and outstanding.
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VOTING RIGHTS
The holders of the Class A and the Class B Common Stock have the right to
one vote per share upon all matters which may come before stockholders'
meetings, except that the holders of Class A Common Stock are empowered as a
class to elect one-third of the members of the Board of Directors and the
holders of Class B Common Stock are empowered as a class to elect two-thirds
of the members of the Board of Directors. The entire Board of Directors is
elected annually.
The affirmative vote of the holders of four-fifths of both the Class A and
Class B Common Stock considered as one class is required (i) for the adoption
of any agreement for the merger or consolidation of the Company with or into
any other corporation, (ii) to authorize the sale, lease or exchange of all or
substantially all of the assets of the Company, or any sale, lease or exchange
of assets to the Company or any subsidiary of the Company in exchange for
securities of the Company, or (iii) to authorize the dissolution or
liquidation of the Company. Such vote, however, is not required (i) if the
Board of Directors shall have approved a memorandum of understanding with
respect to such transaction, or (ii) in the event of a merger or consolidation
of the Company with, or any sale, lease or exchange to the Company or any
subsidiary of any of the assets of, any corporation of which a majority of the
outstanding voting securities is owned of record or beneficially by the
Company and its subsidiaries.
Since holders of Class A and Class B Common Stock do not have cumulative
voting rights, holders of more than 50% of the Class A Common Stock voting for
the election of Directors can elect one-third of the Board of Directors and
the holders of more than 50% of the Class B Common Stock voting for the
election of Directors can elect two-thirds of the Board of Directors. In such
event, holders of the remaining shares voting for the election of the
Directors will be unable to elect Directors. W.D. Company, Inc. ("W.D.
Company") owns 99.2% of the Company's Class B Common Stock and can therefore
elect two-thirds of the Company's Board of Directors. William Dillard,
Chairman of the Board of Directors of the Company, William Dillard II, Chief
Executive Officer, Alex Dillard, President, and Mike Dillard, Executive Vice
President, are directors and officers of W.D. Company and own 21.3%, 25.1%,
23.3% and 22.0%, respectively, of the outstanding voting stock of W.D.
Company.
The holders of the 5% Preferred Stock have no voting rights, except as
provided by Section 242 of the Delaware General Corporation Law, which states
that the holders of the outstanding shares of any class of capital stock shall
be entitled to vote as a class upon any proposed amendment to the certificate
of incorporation, whether or not entitled to vote thereon by the certificate
of incorporation, if the amendment would increase or decrease the aggregate
number of authorized shares of such class (subject to certain conditions),
increase or decrease the par value of the shares of such class, or alter or
change the powers, preferences, or special rights of the shares of such class
so as to affect them adversely.
The Company's Restated Certificate of Incorporation, as amended, authorizes
the Board of Directors to fix by resolution the designations, preferences, and
relative rights, qualifications and limitations, of shares of Additional
Preferred Stock, including, among other things, (a) the number of shares and
the distinctive designation of each series, if any, and whether the shares of
any series would rank prior to, junior to, or on a parity with, the shares of
another series; (b) the dividend rate, conditions and preferences over the
Company's Common Stock, if any, and the date on which any dividends would be
declared and paid; (c) whether, and to what extent, the holders would have
voting rights in addition to those prescribed by statute; (d) whether, and
upon what terms, the shares would be convertible into or exchangeable for
other securities; (e) whether, and upon what terms, the shares would be
redeemable; (f) whether or not a sinking fund would be provided for the
redemption of the securities, and, if so, the terms and conditions thereof;
and (g) preference, if any, to which the class or series thereof would be
entitled in the event of voluntary or involuntary liquidation, dissolution or
winding up of the Company.
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CONVERSION AND PRE-EMPTIVE RIGHTS
Shares of Class B Common Stock are convertible at any time at the option of
any holder thereof into shares of Class A Common Stock at the rate of one
share of Class B Common Stock for one share of Class A Common Stock. Under
Delaware law and the Company's Restated Certificate of Incorporation, no
holder of capital stock has preemptive rights.
DIVIDENDS
Holders of 5% Preferred Stock are entitled to receive dividends at the rate
of 5% per annum, payable February 1 and August 1 of each year, before any
dividends may be paid on Class A and Class B Common Stock. Dividends on the 5%
Preferred Stock shall be cumulative from year to year if not paid and all
accrued and unpaid dividends must be paid on the 5% Preferred Stock before any
dividends may be paid upon the Common Stock in any year. Holders of Class A
and Class B Common Stock are entitled to receive equally, share for share, any
dividends which may be declared upon Common Stock. No dividend may be declared
on Common Stock of either class unless a similar dividend is declared on
Common Stock of the other class. However, in the case of dividends in stock of
the Company or stock splits, holders of each class of Common Stock are
entitled to receive only shares of the same class.
LIQUIDATION AND REDEMPTION RIGHTS
Upon final liquidation of the Company, holders of 5% Preferred Stock are
entitled to receive $100 per share plus accrued dividends before any
distribution to holders of Common Stock, and holders of Common Stock are
entitled to share equally, share for share, in the distribution of the
remaining assets of the Company. The Company may redeem all or any part of the
5% Preferred Stock at par value plus accrued dividends at any time. The Common
Stock is not subject to redemption.
OTHER
All outstanding shares of the Company's capital stock are fully paid and
nonassessable.
The transfer agent and registrar for the Class A Common Stock is
ChaseMellon, Ridgefield Park, New Jersey.
DESCRIPTION OF CAPITAL SECURITIES
Each Issuer Trust will issue only one series of Capital Securities and one
series of Common Securities. The Trust Agreement for each Issuer Trust will be
qualified as an indenture under the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act"). The Capital Securities will have such terms and
will be subject to such conditions as shall be set forth in the Trust
Agreement or made a part thereof by the Trust Indenture Act. This summary of
certain provisions of the Capital Securities and each Trust Agreement does not
purport to be complete and is subject to, and qualified in its entirety by
reference to, all the provisions of each Trust Agreement, including the
definitions therein of certain terms. Wherever particular defined terms of a
Trust Agreement are referred to herein, such defined terms are incorporated
herein by reference. A copy of the form of the Trust Agreement is available
upon request from the Issuer Trustees.
GENERAL
The Capital Securities will represent preferred undivided beneficial
interests in the assets of the applicable Issuer Trust. The only assets of an
Issuer Trust, and its only source of its revenues, will be the Debt Securities
purchased by such Issuer Trust with the proceeds from the issuance of its
Trust Securities. Accordingly, Distributions and other payment dates for such
Trust Securities will correspond with the interest and other payment dates for
such Debt Securities. See "Description of Debt Securities" in this Prospectus
and in the
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applicable Prospectus Supplement for a description of such Debt Securities. If
the Company does not make payments on such Debt Securities in accordance with
their terms, such Issuer Trust will not have funds available to pay
Distributions or other amounts payable on the Trust Securities issued by such
Issuer Trust in accordance with their terms. The Capital Securities issued by
an Issuer Trust will rank pari passu, and payments thereon will be made
thereon pro rata, with the Common Securities issued by such Issuer Trust
except as described below under "--Subordination of Common Securities" and in
the applicable Prospectus Supplement. Capital Securities will be fully and
unconditionally guaranteed by the Company, to the extent described herein
under "Description of Guarantees" and in the applicable Prospectus Supplement.
Reference is made to the applicable Prospectus Supplement for the following
terms of and information relating to the Capital Securities offered hereby and
thereby (to the extent such terms are applicable to such Capital Securities):
(i) the specific designation, stated amount per Capital Security (the
"Liquidation Amount"), number to be issued by the applicable Issuer Trust and
purchase price; (ii) the currency or units based on or relating to currencies
in which Distributions and other payments thereon will or may be payable;
(iii) the Distribution rate or rates (or the method by which such rate or
rates will be determined), if any; (iv) the date or dates on which any such
Distributions will be payable; (v) any provisions relating to deferral of
Distribution payments; (vi) the place or places where Distributions and other
amounts payable on such Capital Securities will be payable; (vii) any
repayment, redemption, prepayment or sinking fund provisions; (viii) the
voting rights, if any, of holders of such Capital Securities; (ix) the terms
and conditions, if any, upon which the assets of such Issuer Trust may be
distributed to holders of such Capital Securities; (x) any applicable United
States federal income tax consequences; and (xi) any other specific terms of
such Capital Securities.
DISTRIBUTIONS
Distributions on the Capital Securities will be cumulative. Distributions
will accumulate from the date of original issuance and will be payable on such
dates as specified in the applicable Prospectus Supplement. The amount of
Distributions payable for any period less than a full Distribution period will
be computed on the basis of a 360-day year of twelve 30-day months and the
actual days elapsed in a partial month in such period, unless otherwise
specified in the applicable Prospectus Supplement. Distributions payable for
each full Distribution period will be computed by dividing the rate per annum
by four, unless otherwise specified in the applicable Prospectus Supplement.
SUBORDINATION OF COMMON SECURITIES
Payment of Distributions on, and other amounts payable under the Capital
Securities and Common Securities issued by an Issuer Trust shall be made pro
rata based on the Liquidation Amount of such Capital Securities and Common
Securities. However, unless otherwise provided in the applicable Prospectus
Supplement, if on any date on which Distributions or other amounts are payable
with respect to such Capital Securities and Common Securities, an "Event of
Default" with respect to the Debt Securities owned by such Issuer Trust (a
"Debenture Event of Default") has occurred and is continuing as a result of
any failure by the Company to pay any amounts in respect of such Debt
Securities when due, no payment of any Distribution on or other amounts
payable under such Common Securities shall be made unless payment in full in
cash of all accumulated amounts then due and payable with respect to all of
such Issuer Trust's outstanding Capital Securities shall have been made or
provided for, and all funds immediately available to the Property Trustee
shall first be applied to the payment in full in cash of all Distributions on,
and all other amounts with respect to, Capital Securities then due and
payable.
In the case of any Capital Securities Event of Default (as defined below)
resulting from a Debenture Event of Default, the holders of the applicable
Issuer Trust's Common Securities will be deemed to have waived any right to
act with respect to any such Capital Securities Event of Default under the
applicable Trust Agreement until the effects of such Debenture Event of
Default with respect to such Capital Securities have been cured, waived or
otherwise eliminated. See "--Capital Securities Events of Default; Notice" and
"Description of Debt Securities--Events of Default." Until all such Capital
Securities Events of Default have been so cured, waived
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or otherwise eliminated, the Property Trustee will act solely on behalf of the
holders of the Capital Securities and not on behalf of the holders of the
Common Securities, and only the holders of the Capital Securities will have
the right to direct the Property Trustee to act on their behalf.
LIQUIDATION DISTRIBUTION UPON DISSOLUTION
The amount payable on Capital Securities in the event of any liquidation of
an Issuer Trust will be the stated amount per Capital Security or such other
amount as specified in the applicable Prospectus Supplement plus accumulated
and unpaid Distributions, which, if specified in the applicable Prospectus
Supplement, may be in the form of a distribution of the Debt Securities owned
by such Issuer Trust.
The holders of all the outstanding Common Securities of an Issuer Trust will
have the right at any time to dissolve such Issuer Trust and, after
satisfaction of liabilities to creditors of such Issuer Trust as provided by
applicable law, cause the Debt Securities owned by such Issuer Trust to be
distributed to the holders of the Capital Securities and Common Securities in
liquidation of such Issuer Trust as described in the applicable Prospectus
Supplement. Other terms for the dissolution of an Issuer Trust and the
distribution or liquidation of its assets to holders of Trust Securities will
be set forth in the applicable Prospectus Supplement.
CAPITAL SECURITIES EVENTS OF DEFAULT; NOTICE
Any one of the following events constitutes an "Event of Default" under a
Trust Agreement (a "Capital Securities Event of Default") with respect to the
Capital Securities issued pursuant thereto (whatever the reason for such
Capital Securities Event of Default and whether it is voluntary or involuntary
or effected by operation of law or pursuant to any judgment, decree or order
of any court or any order, rule or regulation of any administrative or
governmental body):
(i) the occurrence of an Event of Default with respect to the Debt
Securities in which the proceeds of the Capital Securities have been
invested (a "Debenture Event of Default") (see "Description of Debt
Securities--Events of Default" and the applicable Prospectus Supplement);
or
(ii) default by the applicable Issuer Trust or the Property Trustee in
the payment of any Distribution on such Capital Securities when it becomes
due and payable, and continuation of such default for a period of 30 days;
or
(iii) default by an Issuer Trust or the Property Trustee in the payment
of any redemption price of any Trust Security issued pursuant to such Trust
Agreement when it becomes due and payable; or
(iv) default in the performance, or breach, in any material respect, of
any covenant or warranty of the applicable Issuer Trustees (other than a
covenant or warranty, a default in the performance of which or the breach
of which is dealt with in clause (ii) or (iii) above), and continuation of
such default or breach for a period of 60 days after there has been given,
by registered or certified mail, to such Issuer Trustees and the Company by
the holders of at least 25% in aggregate Liquidation Amount of such Capital
Securities outstanding, a written notice specifying such default or breach
and requiring it to be remedied and stating that such notice is a "Notice
of Default" under the applicable Trust Agreement; or
(v) the occurrence of certain events of bankruptcy or insolvency with
respect to the Property Trustee or all or substantially all of its property
if a successor Property Trustee has not been appointed within 90 days
thereof.
Within ten Business Days after the occurrence of any Capital Securities
Event of Default actually known to the Property Trustee, the Property Trustee
will transmit notice of such Event of Default to the holders of the applicable
Trust Securities and the Administrators, unless such Capital Securities Event
of Default has been cured or waived. The Company, as Depositor, and the
Administrators are required to file annually with the Property Trustee a
certificate as to whether or not they are in compliance with all the
conditions and covenants applicable to them under each Trust Agreement.
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If a Debenture Event of Default has occurred and is continuing as a result
of any failure by the Company to pay any amounts in respect of the Debt
Securities owned by an Issuer Trust when due, the Capital Securities issued by
such Issuer Trust will have a preference over the Common Securities issued by
such Issuer Trust with respect to payments of any amounts in respect of such
Capital Securities as described above. See "--Subordination of Common
Securities."
REMOVAL OF ISSUER TRUSTEES; APPOINTMENT OF SUCCESSORS
The holders of at least a majority in aggregate Liquidation Amount of the
outstanding Capital Securities may remove an Issuer Trustee for cause or, if a
Debenture Event of Default has occurred and is continuing, with or without
cause. If an Issuer Trustee is removed by the holders of the outstanding
Capital Securities, the successor may be appointed by the holders of at least
25% in Liquidation Amount of Capital Securities. If an Issuer Trustee resigns,
such Issuer Trustee will appoint its successor. If an Issuer Trustee fails to
appoint a successor, the holders of at least 25% in Liquidation Amount of the
outstanding Capital Securities may appoint a successor. If a successor has not
been appointed by the holders, any holder of Capital Securities or Common
Securities or another Issuer Trustee may petition a court of competent
jurisdiction to appoint a successor. Any Delaware Trustee must meet the
applicable requirements of Delaware law. Any Property Trustee must be a
national- or state-chartered bank, and at the time of appointment have capital
and surplus of at least $50,000,000. No resignation or removal of an Issuer
Trustee and no appointment of a successor trustee shall be effective until the
acceptance of appointment by the successor trustee in accordance with the
provisions of the applicable Trust Agreement.
MERGER OR CONSOLIDATION OF ISSUER TRUSTEES
Any entity into which an Issuer Trustee may be merged or converted or with
which it may be consolidated, or any entity resulting from any merger,
conversion or consolidation to which such Issuer Trustee is a party, or any
entity succeeding to all or substantially all the corporate trust business of
such Issuer Trustee, will be the successor of such Issuer Trustee under each
Trust Agreement, provided such entity is otherwise qualified and eligible.
MERGERS, CONSOLIDATIONS, AMALGAMATIONS OR REPLACEMENTS OF THE ISSUER TRUSTS
An Issuer Trust may not merge with or into, consolidate, amalgamate, or be
replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to, any entity, except as described below or as
otherwise set forth in the applicable Trust Agreement. An Issuer Trust may, at
the request of the holders of the Common Securities and with the consent of
the holders of at least a majority in aggregate Liquidation Amount of its
outstanding Capital Securities, merge with or into, consolidate, amalgamate,
or be replaced by or convey, transfer or lease its properties and assets
substantially as an entirety to a trust organized as such under the laws of
any State, so long as (i) such successor entity either (a) expressly assumes
all the obligations of the Issuer Trust with respect to the Issuer Trust's
Capital Securities or (b) substitutes for the Issuer Trust's Capital
Securities other securities having substantially the same terms as the Issuer
Trust's Capital Securities (the "Successor Securities") so long as the
Successor Securities have the same priority as the Issuer Trust's Capital
Securities with respect to distributions and payments upon liquidation,
redemption and otherwise, (ii) a trustee of such successor entity, possessing
the same powers and duties as the Property Trustee, is appointed to hold the
corresponding Debt Securities, (iii) such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not cause the Issuer Trust's
Capital Securities (including any Successor Securities) to be downgraded by
any nationally recognized statistical rating organization, (iv) such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease does
not adversely affect the rights, preferences and privileges of the holders of
the Issuer Trust's Capital Securities (including any Successor Securities) in
any material respect, (v) such successor entity has a purpose substantially
identical to that of the Issuer Trust, (vi) prior to such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease, the
Issuer Trust has received an opinion from independent counsel experienced in
such matters to the effect that (a) such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not adversely affect the
rights,
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preferences and privileges of the holders of the Issuer Trust's Capital
Securities (including any Successor Securities) in any material respect and
(b) following such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease, neither the Issuer Trust nor such successor
entity will be required to register as an investment company under the
Investment Company Act, and (vii) the Company or any permitted successor or
assignee owns, directly or indirectly, all the common securities of such
successor entity and guarantees the obligations of such successor entity under
the Successor Securities at least to the extent provided by the related
Guarantee. Notwithstanding the foregoing, an Issuer Trust may not, except with
the consent of holders of 100% in aggregate Liquidation Amount of the Issuer
Trust's Capital Securities, consolidate, amalgamate, merge with or into, or be
replaced by or convey, transfer or lease its properties and assets
substantially as an entirety to, any other entity or permit any other entity
to consolidate, amalgamate, merge with or into, or replace it if such
consolidation, amalgamation, merger, replacement, conveyance, transfer or
lease would cause the Issuer Trust or the successor entity to be taxable as a
corporation for United States federal income tax purposes.
VOTING RIGHTS; AMENDMENT OF TRUST AGREEMENTS
Except as provided below and under "--Removal of Issuer Trustees;
Appointment of Successors" and "Description of Guarantees--Amendments and
Assignment" and as otherwise required by law and the applicable Trust
Agreement, the holders of the Capital Securities will have no voting rights.
Each Trust Agreement may be amended from time to time by the holders of a
majority in aggregate Liquidation Amount of the Common Securities and the
Property Trustee, without the consent of the holders of the Capital
Securities, (i) to cure any ambiguity, correct or supplement any provisions in
such Trust Agreement that may be inconsistent with any other provision, or to
make any other provisions with respect to matters or questions arising under
such Trust Agreement, provided that any such amendment does not adversely
affect in any material respect the interests of any holder of Trust
Securities, or (ii) to modify, eliminate or add to any provisions of such
Trust Agreement to such extent as may be necessary to ensure that the Issuer
Trust will not be taxable as a corporation for United States federal income
tax purposes at any time that any Trust Securities are outstanding or to
ensure that the Issuer Trust will not be required to register as an
"investment company" under the Investment Company Act, and any such amendments
of such Trust Agreement will become effective when notice of such amendment is
given to the holders of Trust Securities. Each Trust Agreement may be amended
by the holders of a majority in aggregate Liquidation Amount of the Common
Securities and the Property Trustee with (i) the consent of holders
representing not less than a majority in aggregate Liquidation Amount of the
outstanding Capital Securities and (ii) receipt by the Issuer Trustees of an
opinion of counsel to the effect that such amendment or the exercise of any
power granted to the Issuer Trustees in accordance with such amendment will
not cause the Issuer Trust to be taxable as a corporation for United States
federal income tax purposes or affect the Issuer Trust's exemption from status
as an "investment company" under the Investment Company Act, except that,
without the consent of each holder of Trust Securities affected thereby, a
Trust Agreement may not be amended to (i) change the amount or timing of any
Distribution on the Trust Securities or otherwise adversely affect the amount
of any Distribution required to be made in respect of the Trust Securities as
of a specified date or (ii) restrict the right of a holder of Trust Securities
to institute suit for the enforcement of any such payment on or after such
date.
So long as any Debt Securities are held by an Issuer Trust, the Property
Trustee will not (i) direct the time, method and place of conducting any
proceeding for any remedy available to the Debt Securities Trustee, or execute
any trust or power conferred on the Property Trustee with respect to the Debt
Securities, (ii) waive any past default that may be waived under Section 5.10
of such applicable Indenture, (iii) exercise any right to rescind or annul a
declaration that the principal amount of such Debt Securities shall be due and
payable or (iv) consent to any amendment, modification or termination of such
Indenture or Debt Securities, where such consent shall be required, without,
in each case, obtaining the prior approval of the holders of at least a
majority in aggregate Liquidation Amount of the outstanding Capital
Securities, except that, if a consent under such Indenture would require the
consent of each holder of such Debt Securities affected thereby, no such
consent will be given by the Property Trustee without the prior consent of
each holder of such Capital Securities. The Property Trustee may not revoke
any action previously authorized or approved by a vote of the holders of such
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Capital Securities except by subsequent vote of the holders of Capital
Securities issued by such Issuer Trust. The Property Trustee will notify each
holder of such Capital Securities of any notice of default with respect to
such Debt Securities. In addition to obtaining the foregoing approvals of the
holders of such Capital Securities, before taking any of the foregoing
actions, the Property Trustee will obtain an opinion of counsel experienced in
such matters to the effect that the Issuer Trust will not be taxable as a
corporation for United States federal income tax purposes on account of such
action.
Any required approval of holders of Capital Securities may be given at a
meeting of holders of Capital Securities convened for such purpose or pursuant
to written consent. The Property Trustee will cause a notice of any meeting at
which holders of Capital Securities are entitled to vote, or of any matter
upon which action by written consent of such holders is to be taken, to be
given to each registered holder of Capital Securities in the manner set forth
in each Trust Agreement.
No vote or consent of the holders of Capital Securities will be required to
redeem and cancel Capital Securities in accordance with the applicable Trust
Agreement.
Notwithstanding that holders of Capital Securities are entitled to vote or
consent under any of the circumstances described above, any of the Capital
Securities that are owned by the Company, the Issuer Trustees or any affiliate
of the Company or any Issuer Trustees, will, for purposes of such vote or
consent, be treated as if they were not outstanding.
EXPENSES AND TAXES
In connection with the Debt Securities owned by an Issuer Trust, the
Company, as borrower, will agree to pay all debts and other obligations (other
than with respect to the Capital Securities issued by such Issuer Trust) and
all costs and expenses of such Issuer Trust (including costs and expenses
relating to the organization of such Issuer Trust, the fees and expenses of
the Issuer Trustees for such Issuer Trust and the costs and expenses relating
to the operation of such Issuer Trust) and to pay any and all taxes and all
costs and expenses with respect thereto (other than United States withholding
taxes) to which such Issuer Trust might become subject. The foregoing
obligations of the Company under the Debt Securities owned by an Issuer Trust
are for the benefit of, and shall be enforceable by, any person to whom any
such debts, obligations, costs, expenses and taxes are owed (a "Creditor")
whether or not such Creditor has received notice thereof. Any such Creditor
may enforce such obligations of the Company directly against the Company, and
the Company will irrevocably waive any right or remedy to require that any
such Creditor take any action against such Issuer Trust or any other person
before proceeding against the Company. The Company will also agree in the Debt
Securities owned by an Issuer Trust to execute such additional agreements as
may be necessary or desirable to give full effect to the foregoing.
PAYMENT AND PAYING AGENCY
The applicable Prospectus Supplement will specify the manner in which
payments in respect of the Capital Securities will be made. The paying agent
(the "Paying Agent") for Capital Securities will initially be the Property
Trustee and any copaying agent chosen by the Property Trustee and acceptable
to the Administrators. The Paying Agent will be permitted to resign as Paying
Agent upon 30 days' written notice to the Property Trustee and the
Administrators. If the Property Trustee is no longer the Paying Agent, the
Property Trustee will appoint a successor (which must be a bank or trust
company reasonably acceptable to the Administrators) to act as Paying Agent.
REGISTRAR AND TRANSFER AGENT
Unless otherwise specified in the applicable Prospectus Supplement, the
Property Trustee will act as registrar and transfer agent for the Capital
Securities.
Registration of transfers of Capital Securities will be effected without
charge by or on behalf of each Issuer Trust, but upon payment of any tax or
other governmental charges that may be imposed in connection with any
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transfer or exchange. The Issuer Trusts will not be required to register or
cause to be registered the transfer of their Capital Securities after such
Capital Securities have been called for redemption.
INFORMATION CONCERNING THE PROPERTY TRUSTEE
The Property Trustee, other than during the occurrence and continuance of a
Capital Securities Event of Default, undertakes to perform only such duties as
are specifically set forth in each Trust Agreement and, after such Capital
Securities Event of Default, must exercise the same degree of care and skill
as a prudent person would exercise or use in the conduct of his or her own
affairs. Subject to this provision, the Property Trustee is under no
obligation to exercise any of the powers vested in it by the applicable Trust
Agreement at the request of any holder of Capital Securities unless it is
offered reasonable indemnity against the costs, expenses and liabilities that
might be incurred thereby.
For information concerning the relationship between the Property Trustee and
the Company, see "Description of Debt Securities--Concerning the Trustee."
MISCELLANEOUS
The Administrators and the Property Trustee are authorized and directed to
conduct the affairs of and to operate the Issuer Trusts in such a way that the
Issuer Trusts will not be deemed to be an "investment company" required to be
registered under the Investment Company Act or taxable as a corporation for
United States federal income tax purposes and so that the Debt Securities
owned by the Issuer Trusts will be treated as indebtedness of the Company for
United States federal income tax purposes. In this connection, the Property
Trustee and the holders of Common Securities are authorized to take any
action, not inconsistent with applicable law, the certificate of trust of each
Issuer Trust or each Trust Agreement, that the Property Trustee and the
holders of Common Securities determine in their discretion to be necessary or
desirable for such purposes, as long as such action does not materially
adversely affect the interests of the holders of the related Capital
Securities.
Holders of the Capital Securities have no preemptive or similar rights.
The Issuer Trusts may not borrow money or issue debt or mortgage or pledge
any of their assets.
GOVERNING LAW
Each Trust Agreement will be governed by and construed in accordance with
the laws of the State of Delaware.
GLOBAL SECURITIES
The registered Debt Securities and Capital Securities of any series may be
issued in the form of one or more fully registered global Securities (a
"Registered Global Security") that will be deposited with a depository (a
"Depository") or with a nominee for a Depository identified in the Prospectus
Supplement relating to such series and registered in the name of such
Depository or nominee thereof. In such case, one or more Registered Global
Securities will be issued in a denomination or aggregate denominations equal
to the portion of the aggregate principal or face amount of outstanding
registered Securities of the series to be represented by such Registered
Global Securities. Unless and until it is exchanged in whole for Securities in
definitive registered form, a Registered Global Security may not be
transferred except as a whole by the Depository for such Registered Global
Security to a nominee of such Depository or by a nominee of such Depository to
such Depository or another nominee of such Depository or by such Depository or
any such nominee to a successor of such Depository or a nominee of such
successor.
The specific terms of the depository arrangement with respect to any portion
of a series of Securities to be represented by a Registered Global Security
will be described in the Prospectus Supplement relating to such series. The
Company anticipates that the following provisions will apply to all depository
arrangements.
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Ownership of beneficial interests in a Registered Global Security will be
limited to persons that have accounts with the Depository for such Registered
Global Security ("participants") or persons that may hold interests through
participants. Upon the issuance of a Registered Global Security, the
Depository for such Registered Global Security will credit, on its book-entry
registration and transfer system, the participants' accounts with the
respective principal or face amounts of the Securities represented by such
Registered Global Security beneficially owned by such participants. The
accounts to be credited shall be designated by any dealers, underwriters or
agents participating in the distribution of such Securities. Ownership of
beneficial interests in such Registered Global Security will be shown on, and
the transfer of such ownership interests will be effected only through,
records maintained by the Depository for such Registered Global Security (with
respect to interests of participants) and on the records of participants (with
respect to interests of persons holding through participants). The laws of
some states may require that certain purchasers of securities take physical
delivery of such securities in definitive form. Such limits and such laws may
impair the ability to own, transfer or pledge beneficial interests in
Registered Global Securities.
So long as the Depository for a Registered Global Security, or its nominee,
is the registered owner of such Registered Global Security, such Depository or
such nominee, as the case may be, will be considered the sole owner or holder
of the Securities represented by such Registered Global Security for all
purposes under the applicable Indenture or Trust Agreement. Except as set
forth below, owners of beneficial interests in a Registered Global Security
will not be entitled to have the Securities represented by such Registered
Global Security registered in their names, will not receive or be entitled to
receive physical delivery of such Securities in definitive form and will not
be considered the owners or holders thereof under the applicable Indenture or
Trust Agreement. Accordingly, each person owning a beneficial interest in a
Registered Global Security must rely on the procedures of the Depository for
such Registered Global Security and, if such person is not a participant, on
the procedures of the participant through which such person owns its interest,
to exercise any rights of a holder under the applicable Indenture or Trust
Agreement. The Company understands that under existing industry practices, if
it requests any action of holders or if an owner of a beneficial interest in a
Registered Global Security desires to give or take any action which a holder
is entitled to give or take under the applicable Indenture or Trust Agreement,
the Depository for such Registered Global Security would authorize the
participants holding the relevant beneficial interests to give or take such
action, and such participants would authorize beneficial owners owning through
such participants to give or take such action or would otherwise act upon the
instructions of beneficial owners holding through them.
Principal, premium, if any, and interest payments on Debt Securities, and
any payments to holders with respect to Capital Securities, represented by a
Registered Global Security registered in the name of a Depository or its
nominee will be made to such Depository or its nominee, as the case may be, as
the registered owner of such Registered Global Security. None of the Company,
the Debt Securities Trustees, the Issuer Trustees or any other agent of the
Company, agent of the applicable Issuer Trust or agent of any such Trustees,
as the case may be, will have any responsibility or liability for any aspect
of the records relating to or payments made on account of beneficial ownership
interests in such Registered Global Security or for maintaining, supervising
or reviewing any records relating to such beneficial ownership interests.
The Company and the Issuer Trusts expect that the Depository for any
Securities represented by a Registered Global Security, upon receipt of any
payment of principal, premium, interest or other distribution of underlying
securities to holders in respect of such Registered Global Security, will
immediately credit participants' accounts in amounts proportionate to their
respective beneficial interests in such Registered Global Security as shown on
the records of such Depository. The Company and the Issuer Trusts also expect
that payments by participants to owners of beneficial interests in such
Registered Global Security held through such participants will be governed by
standing customer instructions and customary practices, as is now the case
with the securities held for the accounts of customers in bearer form or
registered in "street name", and will be the responsibility of such
participants.
If the Depository for any Securities represented by a Registered Global
Security is at any time unwilling or unable to continue as Depository or
ceases to be a clearing agency registered under the Exchange Act, and a
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successor Depository registered as a clearing agency under the Exchange Act is
not appointed by the Company or the applicable Issuer Trust, as the case may
be, within 90 days, the Company or the applicable Issuer Trust, as the case
may be, will issue such Securities in definitive form in exchange for such
Registered Global Security. In addition, the Company or the applicable Issuer
Trust, as the case may be, may at any time and in its sole discretion
determine not to have any of the Securities of a series represented by one or
more Registered Global Securities and, in such event, will issue Securities of
such series in definitive form in exchange for all of the Registered Global
Security or Securities representing such Securities. Any Securities issued in
definitive form in exchange for a Registered Global Security will be
registered in such name or names as the Depository shall instruct the relevant
Trustee or other relevant agent of the Company, the applicable Issuer Trust or
such Trustee. It is expected that such instructions will be based upon
directions received by the Depository from participants with respect to
ownership of beneficial interests in such Registered Global Security.
DESCRIPTION OF GUARANTEES
A Guarantee will be executed and delivered by the Company concurrently with
the issuance by each Issuer Trust of its Capital Securities for the benefit of
the holders from time to time of such Capital Securities. This summary of
certain provisions of the Guarantees does not purport to be complete and is
subject to, and qualified in its entirety by reference to, all the provisions
of each Guarantee, including the definitions therein of certain terms. A copy
of the form of the Guarantee is available upon request from the Guarantee
Trustee. The Guarantee Trustee will hold each Guarantee for the benefit of the
holders of the related Issuer Trust's Capital Securities.
GENERAL
Pursuant to a Guarantee, the Company will irrevocably and unconditionally
agree to pay in full, to the extent set forth therein, the Guarantee Payments
(as defined below) to the holders of the Capital Securities covered by such
Guarantee, as and when due, regardless of any defense, right of setoff or
counterclaim that the Issuer Trust that issued such Capital Securities may
have or assert other than the defense of payment. The following payments with
respect to Capital Securities, to the extent not paid by or on behalf of the
Issuer Trust that issued such Capital Securities (the "Guarantee Payments"),
will be subject to the Guarantee thereon: (i) any accumulated and unpaid
Distributions required to be paid on such Capital Securities, to the extent
that such Issuer Trust has funds on hand available therefor at such time, if
any, (ii) the redemption price with respect to any Capital Securities called
for redemption, including all accumulated and unpaid Distributions thereon
(the "Redemption Price"), to the extent that such Issuer Trust has funds on
hand available therefor at such time, and (iii) upon a voluntary or
involuntary dissolution, windingup or liquidation of such Issuer Trust (unless
the Debt Securities owned by such Issuer Trust are distributed to holders of
such Capital Securities in accordance with the terms thereof), the lesser of
(a) the aggregate of the Liquidation Amount and all accumulated and unpaid
Distributions to the date of payment, and (b) the amount of assets of such
Issuer Trust remaining available for distribution to holders of Capital
Securities on liquidation of such Issuer Trust. The Company's obligation to
make a Guarantee Payment may be satisfied by direct payment of the required
amounts by the Company to the holders of the Capital Securities or by causing
the applicable Issuer Trust to pay such amounts to such holders.
Each Guarantee will be an irrevocable guarantee of the related Issuer
Trust's obligations under the Capital Securities covered thereby, but will
apply only to the extent that such Issuer Trust has funds sufficient to make
such payments, and is not a guarantee of collection.
If the Company does not make payments on the Debt Securities owned by an
Issuer Trust, such Issuer Trust will not be able to pay any amounts payable in
respect of its Capital Securities and will not have funds legally available
therefor and, in such event, holders of the Capital Securities would not be
able to rely upon the Guarantee for payment of such amounts. Each Guarantee
will have the same ranking as the Debt Securities owned by the Issuer Trust
that issues the Capital Securities covered thereby. See "--Status of the
Guarantees." No Guarantee will limit the incurrence or issuance of other
secured or unsecured debt of the Company.
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STATUS OF THE GUARANTEES
Each Guarantee will constitute an unsecured obligation of the Company and
will rank pari passu in right of payment with the Debt Securities owned by the
Issuer Trust that issues the Capital Securities covered thereby.
Each Guarantee will constitute a guarantee of payment and not of collection
(i.e., the guaranteed party may institute a legal proceeding directly against
the Company to enforce its rights under the Guarantee without first
instituting a legal proceeding against any other person or entity). Each
Guarantee will be held by the Guarantee Trustee for the benefit of the holders
of the related Capital Securities. Each Guarantee will not be discharged
except by payment of the Guarantee Payments in full to the extent not paid by
the Issuer Trust or, if applicable, distribution to the holders of the Capital
Securities of the Debt Securities owned by such Issuer Trust.
AMENDMENTS AND ASSIGNMENT
Except with respect to any changes which do not materially adversely affect
the rights of holders of the Capital Securities issued by an Issuer Trust (in
which case no vote will be required), the Guarantee that covers such Capital
Securities may not be amended without the prior approval of the holders of not
less than a majority of the aggregate Liquidation Amount of such Capital
Securities outstanding. The manner of obtaining any such approval will be as
set forth under "Description of the Capital Securities--Voting Rights;
Amendment of Trust Agreements" and in the applicable Prospectus Supplement.
All guarantees and agreements contained in each Guarantee shall bind the
successors, assigns, receivers, trustees and representatives of the Company
and shall inure to the benefit of the holders of the covered Capital
Securities then outstanding.
EVENTS OF DEFAULT
An event of default under each Guarantee will occur upon the failure of the
Company to perform any of its payment obligations thereunder, or to perform
any nonpayment obligation if such nonpayment default remains unremedied for 30
days. The holders of not less than a majority in aggregate Liquidation Amount
of the outstanding Capital Securities have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Guarantee Trustee in respect of such Guarantee or to direct the exercise of
any trust or power conferred upon the Guarantee Trustee under such Guarantee.
Any registered holder of Capital Securities may institute a legal proceeding
directly against the Company to enforce its rights under the Guarantee thereon
without first instituting a legal proceeding against the Issuer Trust, the
Guarantee Trustee or any other person or entity.
The Company, as guarantor, is required to file annually with the Guarantee
Trustee a certificate as to whether or not the Company is in compliance with
all the conditions and covenants applicable to it under the Guarantees.
INFORMATION CONCERNING THE GUARANTEE TRUSTEE
The Guarantee Trustee, other than during the occurrence and continuance of a
default by the Company in the performance of any Guarantee, undertakes to
perform only such duties as are specifically set forth in the Guarantee and,
after the occurrence of an event of default with respect to the Guarantee,
must exercise the same degree of care and skill as a prudent person would
exercise or use in the conduct of his or her own affairs. Subject to this
provision, the Guarantee Trustee is under no obligation to exercise any of the
powers vested in it by any Guarantee at the request of any holder of the
Capital Securities covered thereby unless it is offered reasonable indemnity
against the costs, expenses and liabilities that might be incurred thereby.
For information concerning the relationship between the Guarantee Trustee
and the Company, see "Description of Debt Securities--Concerning the Trustee."
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TERMINATION OF THE GUARANTEE
Each Guarantee will terminate and be of no further force and effect upon
full payment of the Redemption Price of the Capital Securities covered
thereby, upon full payment of the amounts payable with respect to such Capital
Securities upon liquidation of the related Issuer Trust or upon distribution
of the Debt Securities owned by such Issuer Trust to the holders of such
Capital Securities. Each Guarantee will continue to be effective or will be
reinstated, as the case may be, if at any time any holder of such Capital
Securities must repay any sums with respect to such Capital Securities or such
Guarantee.
GOVERNING LAW
Each Guarantee will be governed by and construed in accordance with the laws
of the State of New York.
PLAN OF DISTRIBUTION
The Company may sell Debt Securities and Equity Securities and an Issuer
Trust may sell the Capital Securities being offered hereby in three ways: (i)
through agents, (ii) through underwriters and (iii) through dealers.
Offers to purchase Securities may be solicited by agents designated by the
Company and/or an Issuer Trust, as the case may be, from time to time. Any
such agent, who may be deemed to be an underwriter as that term is defined in
the Securities Act, involved in the offer or sale of the Securities in respect
of which this Prospectus is delivered will be named, and any commissions
payable by the Company to such agent will be set forth, in the Prospectus
Supplement. Any such agent will be acting on a reasonable efforts basis for
the period of its appointment or, if indicated in the applicable Prospectus
Supplement, on a firm commitment basis.
If any underwriters are utilized in the sale of the Securities in respect of
which this Prospectus is delivered, the Company and/or an Issuer Trust, as the
case may be, will enter into an underwriting agreement with such underwriters
at the time of the sale to them and the names of the underwriters and the
terms of the transaction will be set forth in the Prospectus Supplement, which
will be used by the underwriters to make resales of the Securities in respect
of which this Prospectus is delivered to the public.
If a dealer is utilized in the sale of the Securities in respect of which
the Prospectus is delivered, the Company and/or an Issuer Trust, as the case
may be, will sell such Securities to the dealer, as principal. The dealer may
then resell such Securities to the public at varying prices to be determined
by such dealer at the time of resale.
In order to facilitate the offering of the Securities, the underwriters may
engage in transactions that stabilize, maintain or otherwise affect the price
of the Securities or any other securities the prices of which may be used to
determine payments on such Securities. Specifically, the underwriters may
overallot in connection with the offering, creating a short position in the
Securities for their own accounts. In addition, to cover overallotments or to
stabilize the price of the Securities or of any such other securities, the
underwriters may bid for, and purchase, the Securities or any such other
securities in the open market. Finally, in any offering of the Securities
through a syndicate of underwriters, the underwriting syndicate may reclaim
selling concessions allowed to an underwriter or a dealer for distributing the
Securities in the offering if the syndicate repurchases previously distributed
Securities in transactions to cover syndicate short positions, in
stabilization transactions or otherwise. Any of these activities may stabilize
or maintain the market price of the Securities above independent market
levels. The underwriters are not required to engage in these activities, and
may end any of these activities at any time.
If so indicated in the Prospectus Supplement, the Company and/or an Issuer
Trust, as the case may be, will authorize agents, underwriters or dealers to
solicit offers by certain purchasers to purchase Securities from the Company
at the public offering price set forth in the Prospectus Supplement pursuant
to delayed delivery contracts providing for payment and delivery on a
specified date in the future. Such contracts will be subject to
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only those conditions set forth in the Prospectus Supplement, and the
Prospectus Supplement will set forth the commission payable for solicitation
of such offers.
Any underwriter, agent or dealer utilized in the initial offering of
Securities will not confirm sales to accounts over which it exercises
discretionary authority without the prior specific written approval of its
customer.
VALIDITY OF SECURITIES
The validity of the Capital Securities will be passed on for the Issuer
Trusts by Richards, Layton & Finger, P.A. The validity of the Equity
Securities, the Debt Securities and the Guarantees will be passed upon for the
Company by Friday, Eldredge & Clark, Little Rock, Arkansas. Certain legal
matters relating to the Securities will be passed upon for the Underwriters by
Simpson Thacher & Bartlett, 425 Lexington Avenue, New York, New York 10017.
William H. Sutton and Paul B. Benham III, partners in Friday, Eldredge &
Clark, beneficially own 4,000 and 2,000 shares, respectively, of the Company's
Class A Common Stock either directly or indirectly through segregated accounts
in a retirement plan maintained by the law firm. Additionally, Mr. Sutton is a
director of the Company. Simpson Thacher & Bartlett from time to time acts as
counsel in various matters for the Company.
EXPERTS
The consolidated financial statements incorporated by reference in this
prospectus and the related financial statement schedules incorporated by
reference in this registration statement have been audited by Deloitte &
Touche LLP, independent auditors, as stated in their reports incorporated by
reference in this registration statement (which express an unqualified opinion
and include an explanatory paragraph relating to a change in accounting for
the impairment of long-lived assets and for long-lived assets to be disposed
of), and have been so included in reliance upon the reports of such firm given
upon their authority as experts in accounting and auditing.
The consolidated financial statements of Mercantile Stores Company, Inc.
which are incorporated by reference in this Prospectus have been audited by
Arthur Andersen LLP, independent public accountants, as indicated in their
report with respect thereto, and are included herein in reliance upon the
authority of said firm as experts in giving said report.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated expenses in connection with the issuance and distribution of
the securities being registered, other than underwriting compensation, are:
Securities and Exchange Commission Registration Fee........ $ 590,000
Printing and Engraving Expenses............................ 20,000
Legal Fees and Expenses.................................... 150,000
Accounting Fees and Expenses............................... 40,000
Trustee Fees and Expenses.................................. 30,000
Rating Agency Fees and Expenses............................ 35,000
Blue Sky Fees and Expenses................................. 20,000
Miscellaneous.............................................. 15,000
---------
Total.......................................... $ 900,000
ITEM 15. INDEMNIFICATION OF OFFICERS AND DIRECTORS
Section 145 of the Delaware General Corporation Law contains detailed
provisions for indemnification of directors and officers of Delaware
corporations against expenses, judgments, fines and settlements in connection
with litigation. Article NINTH, Section 7 of the Company's Certificate of
Incorporation and Article III, Section 5 of the Company's By-Laws provide for
indemnification of the directors and officers of the Company against certain
liabilities.
ITEM 16. EXHIBITS.
Number Description
------ -----------
1-a Form of Underwriting Agreement Standard Provisions for Equity
Securities, Debt Securities and Capital Securities.
1-b Agency Agreement (to be filed on Form 8-K)
*4-a Restated Certificate of Incorporation, as amended (previously
filed as an exhibit to Dillard's, Inc.'s Form 10-Q for the
quarter ended May 3, 1997 in 1-6140).
*4-b Bylaws as currently in effect (previously filed as an exhibit
to Dillard's, Inc.'s Form 10-K for the fiscal year ended
January 30, 1993).
**4-c Certificate of Trust of Dillard's Capital Trust I.
**4-d Certificate of Trust of Dillard's Capital Trust II.
**4-e Certificate of Trust of Dillard's Capital Trust III.
**4-f Certificate of Trust of Dillard's Capital Trust IV.
**4-g Certificate of Trust of Dillard's Capital Trust V.
**4-h Trust Agreement of Dillard's Capital Trust I.
**4-i Trust Agreement of Dillard's Capital Trust II.
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**4-j Trust Agreement of Dillard's Capital Trust III.
**4-k Trust Agreement of Dillard's Capital Trust IV.
**4-l Trust Agreement of Dillard's Capital Trust V.
4-m Form of Amended and Restated Trust Agreement to be used in
connection with the issuance of the Capital Securities.
*4-n Indenture dated as of May 15, 1988, between the Company and The
Chase Manhattan Bank (formerly known as Chemical Bank), Trustee
(previously filed as an exhibit to Dillard's, Inc.'s
Registration Statement on Form S-3, Registration No. 33-21671).
*4-o First Supplemental Indenture dated as of December 16, 1988,
between the Company and The Chase Manhattan Bank (formerly
known as Chemical Bank), Trustee (previously filed as an
exhibit to Dillard's, Inc.'s Registration Statement on Form
S-3, Registration No. 33-25114).
*4-p Second Supplemental Indenture dated as of September 14, 1990,
between the Company and The Chase Manhattan Bank (formerly
known as Chemical Bank), Trustee (previously filed as an
exhibit to Dillard's, Inc.'s Current Report on Form 8-K dated
September 26, 1990 in 1-6140).
4-q Form of Third Supplemental Indenture between the Company and
The Chase Manhattan Bank.
4-r Form of Subordinated Indenture between the Company and The
Chase Manhattan Bank, Trustee, to be used in connection with
the issuance of the Subordinated Debentures and the Capital
Securities.
4-s Form of Capital Security (included in Exhibit 4-m).
4-t Form of Subordinated Debenture.
4-u Form of Capital Securities Guarantee.
**5-a Opinion of Friday, Eldredge & Clark.
5-b Opinion of Richards, Layton & Finger, P.A. with respect to
Dillard's Capital Trusts I, II, III, IV and V.
8 Tax Opinion of Simpson Thacher & Bartlett (to be filed on Form
8-k).
*12-a Statement regarding computation of ratio of earnings to fixed
charges of the Company (previously filed as an exhibit to
Dillard's, Inc.'s Form 10-Q for the quarter ended May 2, 1998
in 1-6140).
**12-b Statement regarding computation of ratio of earnings to fixed
charges and preferred stock dividends.
**23-a Consent of Deloitte & Touche LLP.
**23-b Consent of Arthur Andersen LLP
**23-c Consent of Friday, Eldredge & Clark (included in Exhibit 5-a).
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23-d Consents of Richards, Layton & Finger, P.A. (included in
Exhibit 5-b).
23-e Consent of Simpson Thacher & Bartlett (to be filed on Form
8-K).
**24-a Powers of Attorney.
**24-b Powers of Attorney for the Company, as sponsor, to sign the
Registration Statement on behalf of Dillard's Capital Trusts I,
II, III, IV and V (included in Exhibits 4-h, 4-i, 4-j, 4-k and
4-l).
25-a Statement of Eligibility of The Chase Manhattan Bank, Trustee
under the Senior Debt Indenture
25-b Statement of Eligibility of The Chase Manhattan Bank, Trustee
under the Subordinated Debt Indenture.
25-c Statement of Eligibility of The Chase Manhattan Bank, Trustee
under the Amended and Restated Trust Agreement of Dillard's
Capital Trust I.
25-d Statement of Eligibility of The Chase Manhattan Bank, Trustee
under the Amended and Restated Trust Agreement of Dillard's
Capital Trust II.
25-e Statement of Eligibility of The Chase Manhattan Bank, Trustee
under the Amended and Restated Trust Agreement of Dillard's
Capital Trust III.
25-f Statement of Eligibility of The Chase Manhattan Bank, Trustee
under the Amended and Restated Trust Agreement of Dillard's
Capital Trust IV.
25-g Statement of Eligibility of The Chase Manhattan Bank, Trustee
under the Amended and Restated Trust Agreement of Dillard's
Capital Trust V.
25-h Statement of Eligibility of The Chase Manhattan Bank, Trustee
under the Capital Securities Guarantee of Dillard's, Inc. with
respect to the Capital Securities of Dillard's Capital Trust I.
25-i Statement of Eligibility of The Chase Manhattan Bank, Trustee
under the Capital Securities Guarantee of Dillard's, Inc. with
respect to the Capital Securities of Dillard's Capital Trust
II.
25-j Statement of Eligibility of The Chase Manhattan Bank, Trustee
under the Capital Securities Guarantee of Dillard's, Inc. with
respect to the Capital Securities of Dillard's Capital Trust
III.
25-k Statement of Eligibility of The Chase Manhattan Bank, Trustee
under the Capital Securities Guarantee of Dillard's, Inc. with
respect to the Capital Securities of Dillard's Capital Trust
IV.
25-l Statement of Eligibility of The Chase Manhattan Bank, Trustee
under the Capital Securities Guarantee of Dillard's, Inc. with
respect to the Capital Securities of Dillard's Capital Trust
V.
- ----------------
*Incorporated herein by reference as indicated.
**Previously filed.
ITEM 17. UNDERTAKINGS.
a. The undersigned registrants hereby undertake:
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(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement; (i) to include any
prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) to
reflect in the prospectus any facts or events arising after the effective date
of the registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement (notwithstanding the
foregoing, any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the effective
registration statement); and (iii) to include any material information with
respect to the plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration
statement.
Provided, however, that items (1)(i) and (1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3, and the
information required to be included in a post-effective amendment by those items
is contained in periodic reports filed with or furnished to the Commission by
the registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination
of the offering.
b. The undersigned registrants hereby undertake that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
c. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrants pursuant to the foregoing provisions, or otherwise,
the registrants have been advised that in the opinion of the Securities and
Exchange Commission, such indemnification is against public policy as expressed
in said Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by a registrant
of expenses incurred or paid by a director, officer or controlling person of
such registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the
securities being registered, such registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against policy as expressed in the Act and will be governed by the final
adjudication of such issue.
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d. The undersigned registrants hereby undertake to provide to the
underwriters at the closing specified in the underwriting agreements,
certificates in such denominations and registered in such names as required by
the underwriters to permit prompt delivery to each purchaser.
e. The undersigned registrants hereby undertake that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the registrants pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
SIGNATURES
Pursuant to the requirement of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe that it meets
all the requirements for filing on Form S-3 and has duly caused this Amendment
No. 1 to the Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in Little Rock, Arkansas, on this 23rd
day of July, 1998.
DILLARD'S, INC.
By: /s/ James I. Freeman
------------------------------------
James I. Freeman
Senior Vice President and
Chief Financial Officer
Pursuant to the requirement of the Securities Act of 1933, as amended, this
Amendment No. 1 to the Registration Statement has been signed below by the
following persons in the capacities indicated on this 23rd day of July,
1998.
Chairman of the Board and Director
*
- -------------------------
(William Dillard)
* Director
- -------------------------
(Calvin N. Clyde, Jr.)
II-5
<PAGE>
* Director
- -------------------------
(Robert C. Connor)
* Director
- -------------------------
(Drue Corbusier)
* Director
- -------------------------
(Will D. Davis)
* President and Director
- -------------------------
(Alex Dillard)
* Executive Vice President and Director
- -------------------------
(Mike Dillard)
* Chief Executive Officer and Director
- ------------------------- (Principal Executive Officer)
(William Dillard II)
/s/ James I. Freeman Senior Vice President, Chief
- ------------------------- Financial Officer and Director
(James I. Freeman) (Principal Financial and
Accounting Officer)
* Director
- -------------------------
(John Paul Hammerschmidt)
* Director
- -------------------------
(William B. Harrison, Jr.)
* Director
- -------------------------
(John H. Johnson)
* Director
- -------------------------
(E. Ray Kemp, Jr.)
* Director
- -------------------------
(Jackson T. Stephens)
II-6
<PAGE>
* Director
- -------------------------
(William H. Sutton)
*By: /s/ James I. Freeman
-----------------------
James I. Freeman
(Attorney-in-Fact)
II-7
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Dillard's
Capital Trust I, Dillard's Capital Trust II, Dillard's Capital Trust III,
Dillard's Capital Trust IV and Dillard's Capital Trust V each certifies that
it has reasonable grounds to believe that it meets all of the requirements for
filing on Form S-3 and has duly caused this Amendment No. 1 to the Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Little Rock, Arkansas this 23rd day of July,
1998.
DILLARD'S CAPITAL TRUST I
By: Dillard's, Inc.
By: /s/ James I. Freeman
---------------------------------
Senior Vice President and
Chief Financial Officer
DILLARD'S CAPITAL TRUST II
By: Dillard's, Inc.
By: /s/ James I. Freeman
---------------------------------
Senior Vice President and
Chief Financial Officer
DILLARD'S CAPITAL TRUST III
By: Dillard's, Inc.
By: /s/ James I. Freeman
---------------------------------
Senior Vice President and
Chief Financial Officer
DILLARD'S CAPITAL TRUST IV
By: Dillard's, Inc.
By: /s/ James I. Freeman
---------------------------------
Senior Vice President and
Chief Financial Officer
DILLARD'S CAPITAL TRUST V
By: Dillard's, Inc.
By: /s/ James I. Freeman
---------------------------------
Senior Vice President and
Chief Financial Officer
II-8
<PAGE>
EXHIBIT INDEX
Number Description
------ -----------
1-a Form of Underwriting Agreement Standard Provisions for Equity
Securities, Debt Securities and Capital Securities.
1-b Agency Agreement (to be filed on Form 8-K)
*4-a Restated Certificate of Incorporation, as amended (previously
filed as an exhibit to Dillard's, Inc.'s Form 10-Q for the
quarter ended May 3, 1997 in 1-6140).
*4-b Bylaws as currently in effect (previously filed as an exhibit
to Dillard's, Inc.'s Form 10-K for the fiscal year ended
January 30, 1993).
**4-c Certificate of Trust of Dillard's Capital Trust I.
**4-d Certificate of Trust of Dillard's Capital Trust II.
**4-e Certificate of Trust of Dillard's Capital Trust III.
**4-f Certificate of Trust of Dillard's Capital Trust IV.
**4-g Certificate of Trust of Dillard's Capital Trust V.
**4-h Trust Agreement of Dillard's Capital Trust I.
**4-i Trust Agreement of Dillard's Capital Trust II.
**4-j Trust Agreement of Dillard's Capital Trust III.
**4-k Trust Agreement of Dillard's Capital Trust IV.
**4-l Trust Agreement of Dillard's Capital Trust V.
4-m Form of Amended and Restated Trust Agreement to be used in
connection with the issuance of the Capital Securities.
*4-n Indenture dated as of May 15, 1988, between the Company and The
Chase Manhattan Bank (formerly known as Chemical Bank),
Trustee (previously filed as an exhibit to Dillard's, Inc.'s
Registration Statement on Form S-3, Registration No. 33-
21671).
*4-o First Supplemental Indenture dated as of December 16, 1988,
between the Company and The Chase Manhattan Bank (formerly
known as Chemical Bank), Trustee (previously filed as an
exhibit to Dillard's, Inc.'s Registration Statement on Form
S-3, Registration No. 33-25114).
*4-p Second Supplemental Indenture dated as of September 14, 1990,
between the Company and The Chase Manhattan Bank (formerly
known as Chemical Bank), Trustee (previously filed as an
exhibit to Dillard's, Inc.'s Current Report on Form 8-K
dated September 26, 1990 in 1-6140).
4-q Form of Third Supplemental Indenture between the Company and
The Chase Manhattan Bank.
4-r Form of Subordinated Indenture between the Company and The
Chase Manhattan Bank, Trustee, to be used in connection with
the issuance of the Subordinated Debentures and the Capital
Securities.
4-s Form of Capital Security (included in Exhibit 4-m).
<PAGE>
4-t Form of Subordinated Debenture.
4-u Form of Capital Securities Guarantee.
**5-a Opinion of Friday, Eldredge & Clark.
5-b Opinion of Richards, Layton & Finger, P.A. with respect to
Dillard's Capital Trusts I, II, III, IV and V.
8 Tax Opinion of Simpson Thacher & Bartlett (to be filed on Form
8-K)
*12-a Statement regarding computation of ratio of earnings to fixed
charges of the Company (previously filed as an exhibit to
Dillard's, Inc.'s Form 10-Q for the quarter ended May 2,
1998 in 1-6140).
**12-b Statement regarding computation of ratio of earnings to fixed
charges and preferred stock dividends.
**23-a Consent of Deloitte & Touche LLP.
**23-b Consent of Arthur Andersen LLP
**23-c Consent of Friday, Eldredge & Clark (included in Exhibit 5-a).
23-d Consents of Richards, Layton & Finger, P.A. (included in
Exhibit 5-b).
23-e Consent of Simpson Thacher & Bartlett (to be filed on Form
8-K).
**24-a Powers of Attorney for the Company.
**24-b Powers of Attorney for the Company, as sponsor to sign the
Registration Statement on behalf of Dillard's Capital Trusts I,
II, III, IV and V (included in Exhibits 4-h, 4-i, 4-j, 4-k, and
4-l).
25-a Statement of Eligibility of The Chase Manhattan Bank, Trustee
under the Senior Debt Indenture
25-b Statement of Eligibility of The Chase Manhattan Bank, Trustee
under the Subordinated Debt Indenture.
25-c Statement of Eligibility of The Chase Manhattan Bank, Trustee
under the Amended and Restated Trust Agreement of Dillard's
Capital Trust I.
25-d Statement of Eligibility of The Chase Manhattan Bank, Trustee
under the Amended and Restated Trust Agreement of Dillard's
Capital Trust II.
25-e Statement of Eligibility of The Chase Manhattan Bank, Trustee
under the Amended and Restated Trust Agreement of Dillard's
Capital Trust III.
25-f Statement of Eligibility of The Chase Manhattan Bank, Trustee
under the Amended and Restated Trust Agreement of
Dillard's Capital Trust IV.
25-g Statement of Eligibility of The Chase Manhattan Bank, Trustee
under the Amended and Restated Trust Agreement of Dillard's
Capital Trust V.
<PAGE>
25-h Statement of Eligibility of The Chase Manhattan Bank, Trustee
under the Capital Securities Guarantee of Dillard's, Inc.
with respect to the Capital Securities of Dillard's Capital
Trust I.
25-i Statement of Eligibility of The Chase Manhattan Bank, Trustee
under the Capital Securities Guarantee of Dillard's, Inc.
with respect to the Capital Securities of Dillard's Capital
Trust II.
25-j Statement of Eligibility of The Chase Manhattan Bank, Trustee
under the Capital Securities Guarantee of Dillard's, Inc. with
respect to the Capital Securities of Dillard's Capital Trust
III.
25-k Statement of Eligibility of The Chase Manhattan Bank, Trustee
under the Capital Securities Guarantee of Dillard's, Inc. with
respect to the Capital Securities of Dillard's Capital Trust
IV.
25-l Statement of Eligibility of The Chase Manhattan Bank, Trustee
under the Capital Securities Guarantee of Dillard's, Inc. with
respect to the Capital Securities of Dillard's Capital Trust
V.
- ------------------------------
* Incorporated herein by reference as indicated.
** Previously filed.
<PAGE>
EXHIBIT 1-a
DILLARD'S, INC.
SECURITIES
UNDERWRITING AGREEMENT BASIC PROVISIONS
---------------------------------------
_________, 1998
1. Dillard's, Inc. (the "Company"), proposes to issue and sell from time
to time debt securities ("Debt Securities"), shares of its Class A Common Stock,
par value $.01 per share ("Class A Common Stock") and shares of its Additional
Preferred Stock, par value $.01 per share ("Additional Preferred Stock")
registered under the registration statement referred to in Section 2(a)
("Registered Securities"). If specified in a Terms Agreement referred to in
Section 3, the Company proposes to grant to the underwriters an option to
purchase up to that amount of Registered Securities specified in such Terms
Agreement (herein called the Option Securities). The Debt Securities will be
issued under indentures (as they may be amended or supplemented from time to
time, the "Indentures"), more particularly described in a Terms Agreement,
between the Company and the trustees named therein (the "Trustee(s)"), in one or
more series, which series may vary as to interest rates, maturities, redemption
provisions, selling prices and other terms, with all such terms for any
particular series of the Debt Securities being determined at the time of sale.
The preferred stock will be issued in one or more series, which series may vary
as to voting rights, dividends, optional and mandatory redemption provisions,
liquidation preference and conversion provisions and other terms, with all such
terms for any particular series or issue of the preferred stock being determined
at the time of issue. The Registered Securities will be sold pursuant to a Terms
Agreement, for resale in accordance with terms of offering determined at the
time of sale.
The Registered Securities (together with the Option Securities)
involved in any such offering are hereinafter referred to as the "Securities."
The firm or firms which agree to purchase the Securities are hereinafter
referred to as the "Underwriters" of such Securities, and the representative or
representatives of the Underwriters, if any, specified in a Terms Agreement are
hereinafter referred to as the "Representatives"; provided, however, that if the
Terms Agreement does not specify any representative of the Underwriters, the
term "Representatives," as used in this Agreement (other than in Sections 2(b),
6(f), 6(g) and 7 and the second sentence of Section 3) shall mean the
Underwriters.
2. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) A registration statement on Form S-3 relating to
<PAGE>
2
the Registered Securities and more particularly described in the applicable
Terms Agreement relating to the Securities has been filed with the
Securities and Exchange Commission (the "Commission") and has been declared
effective by the Commission and no stop order suspending the effectiveness
of such registration statement has been issued and no proceeding for that
purpose has been initiated or threatened by the Commission. If any post-
effective amendment to such registration statement has been filed with the
Commission prior to the date of the applicable Terms Agreement, the most
recent such amendment has been declared effective by the Commission. For
purposes of this Agreement, "Effective Date" means the date as of which
such registration statement, or the most recent post-effective amendment
thereto, if any, was declared effective by the Commission. Such
registration statement, as amended at the Effective Date, including all
material incorporated by reference therein and, if the date of the Terms
Agreement is on or before the fifth business day after the Effective Date,
including all information deemed to be a part thereof as of the Effective
Date pursuant to paragraph (b) of Rule 430A under the Securities Act of
1933, as amended (the "Act"), is hereinafter referred to as the
"Registration Statement," and the form of prospectus relating to the
Securities, as first filed pursuant to paragraph (1) or (4) of Rule 424(b)
("Rule 424(b)") under the Act or, if the date of the Terms Agreement is
after the fifth business day after the Effective Date, pursuant to Rule
424(b)(2) or (5), as such form of prospectus may be supplemented as
contemplated by Section 1 to reflect the terms of the Securities and the
terms of offering thereof, including all documents incorporated by
reference therein, is hereinafter referred to as the "Prospectus."
(b) On the Effective Date, the Registration Statement conformed in
all respects to the requirements of the Act, the Trust Indenture Act of
1939 ("Trust Indenture Act") and the rules and regulations of the
Commission ("Rules and Regulations") and did not include any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein not
misleading, and on the date of the applicable Terms Agreement, and at the
time of filing of the Prospectus pursuant to Rule 424(b) and on the Closing
Date, the Registration Statement and the Prospectus will conform in all
respects to the requirements of the Act, the Trust Indenture Act and the
Rules and Regulations, and neither of such documents will include any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading, except that the foregoing does not apply to statements in
or omissions from any of such documents based upon written information
furnished to the Company by or on behalf of any Underwriter through the
Representatives, if any, specifically for use therein.
<PAGE>
3
(c) The Indenture, if any, described in the Terms Agreement has been
duly authorized and, when executed by the proper officers of the Company
and delivered (assuming due execution and delivery thereof by the Trustee),
will constitute the valid and legally binding instrument of the Company.
The Debt Securities, if any, described in the Terms Agreement have been
duly and validly authorized and will be, when validly executed,
authenticated and delivered in accordance with the terms of the Indenture,
issued and outstanding obligations of the Company entitled to the benefits
of the Indenture. (ii) The Class A Common Stock and Additional Preferred
Stock, if any, described in the Terms Agreement have been duly and validly
authorized and when issued will be fully paid and non-assessable. (iii) No
further approval or authority of the stockholders or the Board of Directors
of the Company will be required for the issuance and sale of the Securities
as contemplated herein. (iv) The Securities conform to the description
thereof in the Prospectus.
(d) The Company has complied with all provisions of Section 1 of Laws
of Florida, Chapter 92-198 Securities-Business with Cuba.
3. The obligation of the Underwriters to purchase the Securities will be
evidenced by an exchange of a written communication ("Terms Agreement") at each
time the Company determines to sell the Securities. Each Terms Agreement will
be in the form of Annex II (A) or (B) attached hereto and will incorporate by
reference the provisions of this Agreement, except as otherwise provided
therein, and will specify the firm or firms which will be Underwriters, the
names of any Representatives, the amount to be purchased by each Underwriter,
the purchase price to be paid by the Underwriters and certain terms of the
Securities and whether any of the Securities may be sold to institutional
investors pursuant to Delayed Delivery Contracts (as defined below).
Securities to be purchased by each Underwriter pursuant to the Terms
Agreement relating thereto, in definitive form to the extent practicable, and in
such authorized denominations and registered in such names as the
Representatives may request upon at least forty-eight hours' prior notice to the
Company, shall be delivered by or on behalf of the Company to the
Representatives for the account of such Underwriter, against payment by such
Underwriter or on its behalf of the purchase price therefor by certified or
official bank check or checks, payable to the order of the Company in the funds
specified in such Terms Agreement, all at the place and time and date specified
in such Terms Agreement or at such other place and time and date as the
Representatives and the Company may agree upon in writing (such time and date
being referred to as the "Closing Date").
If specified in a Terms Agreement, on the basis of the
representations, warranties and covenants herein contained, and subject to the
terms and conditions herein set forth, the Company
<PAGE>
4
grants an option to the several Underwriters to purchase, severally and not
jointly, up to that amount of the Option Securities, as shall be specified in
the Terms Agreement, from the Company at the same price as the Underwriters
shall pay for the Securities. Said option may be exercised only to cover over-
allotments in the sale of the Securities by the Underwriters and may be
exercised in whole or in part at any time (but not more than once) on or before
the thirtieth day after the date of the Terms Agreement upon written or
telegraphic notice by you to the Company setting forth the amount of the Option
Securities as to which the several Underwriters are exercising the option. The
amount of Option Securities to be purchased by each Underwriter shall be the
same percentage of the total amount of the Option Securities to be purchased by
the several Underwriters as such Underwriter is purchasing of the Securities, as
adjusted by you in such manner as you deem advisable to avoid fractional
shares/units.
If the Terms Agreement provides for sales of Securities pursuant to
delayed delivery contracts, the Company authorizes the Underwriters to solicit
offers to purchase Securities pursuant to delayed delivery contracts
substantially in the form of Annex I attached hereto ("Delayed Delivery
Contract") with such changes therein as the Company may authorize or approve.
Delayed Delivery Contracts are only to be with institutional investors,
including commercial and savings banks, insurance companies, pension funds,
investment companies and educational and charitable institutions. On the Closing
Date the Company will pay, as compensation, to the Representatives for the
accounts of the Underwriters, the fee set forth in such Terms Agreement in
respect of the amount of Securities to be sold pursuant to Delayed Delivery
Contracts ("Contract Securities"). The Underwriters will not have any
responsibility in respect of the validity or the performance of Delayed Delivery
Contracts. If the Company executes and delivers Delayed Delivery Contracts, the
Contract Securities will be deducted from the Securities to be purchased by the
several Underwriters and the aggregate amount of Securities to be purchased by
each Underwriter will be reduced pro rata in proportion to the amount of
Securities set forth opposite each Underwriter's name in such Terms Agreement,
except to the extent that the Representatives determine that such reduction
shall be otherwise than pro rata and so advise the Company. The Company will
advise the Representatives not later than the business day prior to the Closing
Date of the amount of Contract Securities.
4. The Company agrees with each of the Underwriters of any Securities:
(a) To prepare the Prospectus as amended and supplemented in relation
to the applicable Securities in a form approved by you and to file such
Prospectus with the Commission (i) pursuant to Rule 424(b)(1) (or, if
applicable and if consented to by the Representatives, pursuant to Rule
424(b)(4)) not later than the Commission's close of business on the earlier
of (A) the second business day following the
<PAGE>
5
date of the Terms Agreement or (B) the fifth business day after the
Effective Date, or (ii) if the date of the Terms Agreement is after the
fifth business day after the Effective Date, pursuant to Rule 424(b)(2)
(or, if applicable and if consented to by the Representatives, pursuant to
Rule 424(b)(5)) not later than the second business day following the date
of a Terms Agreement; the Company will advise you promptly of any such
filing pursuant to Rule 424(b); the Company will advise the Representatives
promptly of any proposal to amend or supplement the Registration Statement
or the Prospectus and will afford the Representatives a reasonable
opportunity to comment on any such proposed amendment or supplement; to
file promptly all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission pursuant
to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act") for so long as the delivery of a
prospectus is required in connection with the offering or sale of such
Securities, and during such same period to advise the Representatives,
promptly after it receives notice thereof, of the time when any amendment
to the Registration Statement has been filed or become effective or any
supplement to the Prospectus or any amended Prospectus has been filed, or
mailed for filing, of the issuance by the Commission of any stop order or
of any order preventing or suspending the use of any prospectus relating to
the Securities, of the suspension of the qualification of such Securities
for offering or sale in any jurisdiction, of the initiation or threatening
of any proceeding for any such purpose, or of any request by the Commission
for the amending or supplementing of the Registration Statement or
Prospectus or for additional information; and, in the event of the issuance
of any such stop order or of any such order preventing or suspending the
use of any prospectus relating to the Securities or suspending any such
qualification, to use promptly its best efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Securities for
offering and sale under the securities laws of such jurisdictions as the
Representatives may request and to comply with such laws so as to permit
the continuance of sales and dealings therein in such jurisdictions for as
long as may be necessary to complete the distribution of such Securities,
provided that in connection therewith the Company shall not be required to
qualify as a foreign corporation or to file a general consent to service of
process in any jurisdiction;
(c) To furnish the Underwriters with copies of the Registration
Statement, including all exhibits, any related preliminary prospectus, any
related preliminary prospectus supplement, the Prospectus and all
amendments and supplements to such documents, in each case as soon as
available and in such quantities as the Representatives may
<PAGE>
6
from time to time reasonably request, and, if the delivery of a prospectus
is required at any time in connection with the offering or sale of the
Securities and if at such time any event shall have occurred as a result of
which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus is delivered,
not misleading, or, if for any other reason it shall be necessary during
such same period to amend or supplement the Prospectus or to file under the
Exchange Act any document incorporated by reference in the Prospectus in
order to comply with the Act, the Exchange Act or the Trust Indenture Act,
to notify the Representatives and upon their request to file such document
and to prepare and furnish without charge to each Underwriter and to any
dealer in securities as many copies as the Representatives may from time to
time reasonably request of an amended Prospectus or a supplement to the
Prospectus which will correct such statement or omission or effect such
compliance;
(d) To make generally available to its security holders as soon as
practicable, but in any event not later than eighteen months after the
later of the effective date of the Registration Statement and the effective
date of any post-effective amendment thereto, an earnings statement of the
Company and its subsidiaries (which need not be audited) complying with
Section 11(a) of the Act and the rules and regulations of the Commission
thereunder (including at the option of the Company Rule 158); and
(e) Without the prior consent of the Representatives, the Company
will not, (A) offer, sell, contract to sell or otherwise dispose of any
shares of common stock or any securities convertible into or exchangeable
or exercisable for or any rights to purchase or acquire common stock for
that period specified in the Terms Agreement, other than shares of common
stock or options to purchase common stock granted under the Company's
employee benefit plans and, (B) in the event of an offering of Debt
Securities, for the period beginning from the date of the Terms Agreement
for such Securities and continuing to and including the earlier of (i) the
termination of trading restrictions for such Securities, as notified to the
Company by the Representatives and (ii) the Closing Date for such
Securities, not to offer, sell, contract to sell or otherwise dispose of
any debt securities of the Company which mature more than one year after
such Closing Date and which are substantially similar to such Securities.
5. The Company covenants and agrees with the several Underwriters that
the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Securities under the Act and all other
<PAGE>
7
expenses in connection with the preparation, printing and filing of the
Registration Statement, any preliminary prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or producing
any Agreement among Underwriters, this Agreement, any Terms Agreement, any
Indenture, any Blue Sky and Legal Investment Memoranda and any other documents
in connection with the offering, purchase, sale and delivery of the Securities;
(iii) all expenses in connection with the qualification of the Securities for
offering and sale under state securities laws as provided in Section 4(b)
hereof, including the fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the Blue Sky and legal
investment surveys; (iv) any fees charged by securities rating services for
rating the Securities; (v) any filing fees incident to any required review by
the National Association of Securities Dealers, Inc. of the terms of the sale of
the Securities; (vi) the cost of preparing the Securities; (vii) the fees and
expenses of the Trustee and any agent of the Trustee and the fees and
disbursements of counsel for the Trustee in connection with any Indenture and
the Securities; and (viii) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise specifically
provided for in this Section. It is understood, however, that, except as
provided in this Section, Section 7 and Section 10 hereof, the Underwriters will
pay all of their own costs and expenses, including the fees of their counsel,
transfer taxes on resale of any of the Securities by them, and any advertising
expenses connected with any offers they may make.
6. The obligations of the Underwriters of any Securities under the Terms
Agreement relating to such Securities shall be subject, in the discretion of the
Representatives, to the condition that all representations and warranties and
other statements of the Company herein are, at and as of the Closing Date for
such Securities, true and correct, the condition that the Company shall have
performed all of its obligations hereunder theretofore to be performed, and the
following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant
to Rule 424(b) within the applicable time period prescribed for such filing
by the rules and regulations under the Act and in accordance with Section
4(a) of the Agreement; no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceeding for that
purpose shall have been initiated or threatened by the Commission; and all
requests for additional information on the part of the Commission shall
have been complied with to the Representatives' reasonable satisfaction;
(b) Simpson Thacher & Bartlett, counsel for the Underwriters, shall
have furnished to the Representatives such opinion or opinions, dated the
Closing Date for such
<PAGE>
8
Securities, with respect to the incorporation of the Company, the validity
of the Indenture, the Securities, the Registration Statement, the
Prospectus as amended or supplemented and other related matters as the
Representatives may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request to
enable them to pass upon such matters;
(c) Friday, Eldredge & Clark, counsel for the Company, shall have
furnished to the Representatives their written opinion, dated the Closing
Date for such Securities, in form and substance satisfactory to the
Representatives, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus as
amended or supplemented;
(ii) The Company has an authorized capitalization as set forth
in the Prospectus as amended or supplemented and all of the issued
shares of capital stock of the Company have been duly and validly
authorized and issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign
corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases
properties, or conducts any business, so as to require such
qualification (such counsel being entitled to rely in respect of the
opinion in this clause upon opinions of local counsel and in respect
of matters of fact upon certificates of officers of the Company,
provided that such counsel shall state that they believe that both the
Representatives and they are justified in relying upon such opinions
and certificates);
(iv) Each subsidiary of the Company has been duly incorporated
and is validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation and has been duly qualified
as a foreign corporation for the transaction of business and is in
good standing under the laws of each other jurisdiction in which it
owns or leases properties, or conducts any business, so as to require
such qualification; and all of the issued shares of capital stock of
each such subsidiary have been duly and validly authorized and issued,
are fully paid and nonassessable, and (except for directors'
qualifying shares) are owned directly or indirectly by the Company,
free and clear of all liens, encumbrances, equities or claims (such
counsel being entitled to rely in respect of the opinion in this
<PAGE>
9
clause upon opinions of local counsel and in respect of matters of
fact upon certificates of officers of the Company or its subsidiaries,
provided that such counsel shall state that they believe that both the
Representatives and they are justified in relying upon such opinions
and certificates);
(v) The Company and its subsidiaries have good and marketable
title in fee simple to all real property owned by them, in each case
free and clear of all liens, encumbrances and defects except such as
are described in the Prospectus or such as do not materially affect
the value of such property and do not interfere with the use made and
proposed to be made of such property by the Company and its
subsidiaries; and any real property and buildings held under lease by
the Company and its subsidiaries are held by them under valid,
subsisting and enforceable leases with such exceptions as are not
material and do not interfere with the use made and proposed to be
made of such property and buildings by the Company and its
subsidiaries (in giving the opinion in this clause, such counsel may
state that no examination of record titles for the purpose of such
opinion has been made, and that they are relying upon a general review
of the titles of the Company and its subsidiaries, upon opinions of
local counsel and abstracts, reports and policies of title companies
rendered or issued at or subsequent to the time of acquisition of such
property by the Company or its subsidiaries, upon opinions of counsel
to the lessors of such property and, in respect of matters of fact,
upon certificates of officers of the Company or its subsidiaries,
provided that such counsel shall state that they believe that both the
Representatives and they are justified in relying upon such opinions,
abstracts, reports, policies and certificates);
(vi) To the best of such counsel's knowledge there are no legal
or governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any
of its subsidiaries is the subject, other than as set forth in the
Prospectus and other than litigation incident to the kind of business
conducted by the Company and its subsidiaries which individually and
in the aggregate is not material to the Company and its subsidiaries;
and to the best of such counsel's knowledge no such proceedings are
threatened or contemplated by governmental authorities or threatened
by others;
(vii) The Terms Agreement (including the provisions of this
Agreement) and any Delayed Delivery Contracts have been duly
authorized, executed and delivered by the Company;
<PAGE>
10
(viii) The Debt Securities have been duly authorized, executed,
issued and delivered by the Company and, upon payment and delivery in
accordance with the Terms Agreement, will constitute valid and legally
binding obligations of the Company enforceable against the Company in
accordance with their terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to
general equity principles, and entitled to the benefits provided by
the Indenture; and the Securities, other than any Contract Securities,
and the Indenture, if any, conform, and any Contract Securities, when
so issued and delivered and sold will conform, to the descriptions
thereof in the Prospectus as amended or supplemented;
(ix) The Class A Common Stock and the Additional Preferred
Stock, if any, described in the Terms Agreement have been duly and
validly authorized and issued and are fully paid and non-assessable;
(x) The Indenture, if any, has been duly authorized, executed
and delivered by the parties thereto and constitutes a valid and
legally binding instrument, enforceable in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization
and other similar laws of general
<PAGE>
11
applicability relating to or affecting creditors' rights and to
general equity principles; the Indenture has been duly qualified under
the Trust Indenture Act; and all taxes and fees required to be paid
with respect to the execution of the Indenture and the issuance of the
Securities have been paid;
(xi) The issue and sale of the Securities and the compliance by
the Company with all of the provisions of the Securities, the
Indenture, this Agreement and the Terms Agreement with respect to the
Securities and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach of any of
the terms or provisions of, or constitute a default under, or result
in the creation or imposition of any lien, charge or encumbrance upon
any of the property or assets of the Company or any of its
subsidiaries pursuant to the terms of, any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument known to
such counsel to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries is bound or
to which any of the property or assets of the Company or any of its
subsidiaries is subject, nor will such action result in any violation
of the provisions of the Certificate of Incorporation, as amended, or
the By-Laws of the Company or any statute or any order, rule or
regulation known to such counsel of any court or governmental agency
or body having jurisdiction over the Company or any of its
subsidiaries or any of their properties; and no consent, approval,
authorization, order, registration or qualification of or with any
such court or any such regulatory authority or other governmental
agency or body is required for the issue and sale of the Securities or
the consummation of the other transactions contemplated by this
Agreement or such Terms Agreement or the Indenture, except such as
have been obtained under the Act and the Trust Indenture Act and such
consents, approvals, authorizations, registrations or qualifications
as may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the Securities by the
Underwriters;
(xii) The documents incorporated by reference in the Prospectus
as amended or supplemented (other than the financial statements and
related schedules therein, as to which such counsel need express no
opinion), when they became effective or were filed with the
Commission, as the case may be, complied as to form in all material
respects with the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder; and
(xiii) The Registration Statement and the Prospectus as amended
or supplemented and any further
<PAGE>
12
amendments and supplements thereto made by the Company prior to the
Closing Date for the Securities (other than the financial statements
and related schedules therein, as to which such counsel need express
no opinion) comply as to form in all material respects with the
requirements of the Act and the Trust Indenture Act and the rules and
regulations thereunder; they have no reason to believe that the
Registration Statement, as of the Effective Date (or, if an Annual
Report on Form 10-K of the Company has been filed subsequent to the
Effective Date and is deemed to be incorporated by reference therein,
as of the date of filing of the most recent such Annual Report on Form
10-K), contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading or that the Prospectus
(including any document incorporated by reference therein) contains an
untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; and they do not know of any contracts or other
documents of a character required to be filed as an exhibit to the
Registration Statement or required to be incorporated by reference
into the Prospectus as amended or supplemented or required to be
described in the Registration Statement or the Prospectus as amended
or supplemented which are not filed or incorporated by reference or
described as required.
(d) At the Closing Date for such Securities, the independent
certified public accountants who have certified the financial statements of
the Company and its subsidiaries included or incorporated by reference in
the Registration Statement shall have furnished to the Representatives a
letter dated such Closing Date to the effect set forth in Annex III hereto,
and as to such other matters as the Representatives may reasonably request
and in form and substance satisfactory to the Representatives;
(e) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus as amended or
supplemented any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or
from any labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Prospectus as amended or
supplemented, and (ii) since the respective dates as of which information
is given in the Prospectus as amended or supplemented there shall not have
been any change in the capital stock or long-term debt of the Company or
any of its subsidiaries or any change, or any development involving a
<PAGE>
13
prospective change, in or affecting the general affairs, management,
financial position, stockholders' equity or results of operations of the
Company and its subsidiaries, otherwise than as set forth or contemplated
in the Prospectus as amended or supplemented, the effect of which, in any
such case described in Clause (i) or (ii), is in the judgment of the
Representatives so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Securities or the Registered Securities on the terms and in the manner
contemplated in the Prospectus as amended or supplemented;
(f) On or after the date of the Terms Agreement, there shall not have
occurred (i) any downgrading in the rating accorded the Company's debt
securities by any "nationally recognized statistical rating organization,"
as that term is defined by the Commission for purposes of Rule 436(g)(2)
under the Act or (ii) any change, or any development involving a
prospective change, in or affecting particularly the business or properties
of the Company or its subsidiaries which, in the judgment of a majority in
interest of the Underwriters, including any Representatives, materially
impairs the investment quality of the Securities or the Registered
Securities;
(g) On or after the date of the Terms Agreement relating to the
Securities there shall not have occurred any of the following: (i) trading
generally shall have been suspended or materially limited on or by, as the
case may be, any of the New York Stock Exchange, the American Stock
Exchange, the National Association of Securities Dealers, Inc., the Chicago
Board Options Exchange, the Chicago Mercantile Exchange or the Chicago
Board of Trade, (ii) trading of any securities of the Company shall have
been suspended on any exchange or in any over-the-counter market, (iii) a
general moratorium on commercial banking activities in New York shall have
been declared by either Federal or New York State authorities, or (iv)
there shall have occurred any outbreak or escalation of hostilities or any
change in financial markets or any calamity or crisis that, in your
judgment, is material or adverse, if the effect of any such event specified
in clauses (i) through (iv), singly or together with any other such event
makes it, in your judgment, impracticable to market the Securities on the
terms and in the manner contemplated in the Prospectus as amended or
supplemented; and
(h) The Company shall have furnished or caused to be furnished to the
Representatives at the Closing Date for the Securities a certificate or
certificates of officers of the Company satisfactory to the Representatives
as to the accuracy of the representations and warranties of the Company
herein at and as of such Closing Date, as to the performance by the Company
of all of its obligations hereunder to be performed at or prior to such
Closing Date, as to the matters set forth in subsections (a) and (e) of
<PAGE>
14
this Section and as to such other matters as the Representatives may
reasonably request.
7. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any related preliminary prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse each Underwriter for any legal or other expenses reasonably incurred
by such Underwriter in connection with investigating or defending any such
action or claim; provided, however, that the Company shall not be liable in any
such case to the extent that any such loss, claim, damage or liability arises
out of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in any related preliminary prospectus, any
preliminary prospectus supplement, the Registration Statement, the Prospectus as
amended or supplemented and any other prospectus relating to the Securities, or
any such amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by any Underwriter of Securities through
the Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Securities; provided further, that as to any
related preliminary prospectus or preliminary prospectus supplement this
indemnity agreement shall not inure to the benefit of any Underwriter on account
of any loss, claim, damage or liability (or action in respect thereof) arising
from the sale of the Securities to any person by that Underwriter if that
Underwriter failed to send or give a copy of the Prospectus, as the same may be
amended or supplemented, to that person within the time required by the Act, and
the untrue statement or alleged untrue statement of any material fact or
omission or alleged omission to state any material fact in such preliminary
prospectus or preliminary prospectus supplement was corrected in the Prospectus,
unless such failure resulted from non-compliance by the Company with Section
4(c). For purposes of the second proviso to the immediately preceding sentence,
the term Prospectus shall not be deemed to include the documents incorporated by
reference therein, and no Underwriter shall be obligated to send or give any
supplement or amendment to any document incorporated by reference in a
preliminary prospectus, a preliminary prospectus
<PAGE>
15
supplement or the Prospectus to any person other than a person to whom such
Underwriter has delivered such incorporated documents in response to a written
request therefor.
(b) Each Underwriter will indemnify and hold harmless the Company against
any losses, claims, damages or liabilities to which the Company may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
related preliminary prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or supplemented and any other
prospectus relating to the Securities, or any amendment or supplement thereto,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in any related preliminary prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representatives expressly for use therein; and will reimburse the Company for
any legal or other expenses reasonably incurred by the Company in connection
with investigating or defending any such action or claim.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal
<PAGE>
16
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation.
(d) If the indemnification provided for in this Section 7 is unavailable
to or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or actions
in respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters of the Securities on the
other from the offering of the Securities to which such loss, claim, damage or
liability (or action in respect thereof) relates. If, however, the allocation
provided by the immediately preceding sentence is not permitted by applicable
law or if the indemnified party failed to give the notice required under
subsection (c) above, then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriters of the Securities on
the other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as well
as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and such Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from such offering
(before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by such Underwriters. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Company on the one hand or such Underwriters on the other and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this subsection
(d) were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to above in
this subsection (d). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to above in this subsection (d) shall be deemed to
<PAGE>
17
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the applicable Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The obligations of the Underwriters of Securities
in this subsection (d) to contribute are several in proportion to their
respective underwriting obligations with respect to such Securities and not
joint.
(e) The obligations of the Company under this Section 7 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 7 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company and to each
person, if any, who controls the Company within the meaning of the Act.
8. (a) If any Underwriter shall default in its obligation to purchase
the Securities which it has agreed to purchase under the Terms Agreement
relating to such Securities, the Representatives may in their discretion arrange
for themselves or another party or other parties to purchase such Securities on
the terms contained herein. If within thirty-six hours after such default by any
Underwriter the Representatives do not arrange for the purchase of such
Securities, then the Company shall be entitled to a further period of thirty-six
hours within which to procure another party or other parties satisfactory to the
Representatives to purchase such Securities on such terms. In the event that,
within the respective prescribed period, the Representatives notify the Company
that they have so arranged for the purchase of such Securities, or the Company
notifies the Representatives that it has so arranged for the purchase of such
Securities, the Representatives or the Company shall have the right to postpone
the Closing Date for such Securities for a period of not more than seven days,
in order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus as amended or supplemented, or in any
other documents or arrangements, and the Company agrees to file
<PAGE>
18
promptly any amendments or supplements to the Registration Statement or the
Prospectus which in the opinion of the Representatives may thereby be made
necessary. The term "Underwriter" as used in this Agreement shall include any
person substituted under this Section with like effect as if such person had
originally been a party to the Terms Agreement with respect to such Securities.
(b) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Underwriter or Underwriters by the Representatives
and the Company as provided in subsection (a) above, the aggregate principal
amount of such Securities which remains unpurchased does not exceed one-eleventh
of the aggregate principal amount of the Securities, then the Company shall have
the right to require each non-defaulting Underwriter to purchase the principal
amount of Securities which such Underwriter agreed to purchase under the Terms
Agreement relating to such Securities and, in addition, to require each non-
defaulting Underwriter to purchase its pro rata share (based on the principal
amount of Securities which such Underwriter agreed to purchase under such Terms
Agreement) of the Securities of such defaulting Underwriter or Underwriters for
which such arrangements have not been made; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Underwriter or Underwriters by the Representatives
and the Company as provided in subsection (a) above, the aggregate principal
amount of Securities which remains unpurchased exceeds one-eleventh of the
aggregate principal amount of the Securities, as referred to in subsection (b)
above, or if the Company shall not exercise the right described in subsection
(b) above to require non-defaulting Underwriters to purchase Securities of a
defaulting Underwriter or Underwriters, then the Terms Agreement relating to
such Securities shall thereupon terminate, without liability on the part of any
non-defaulting Underwriter or the Company, except for the expenses to be borne
by the Company and the Underwriters as provided in Section 5 hereof and the
indemnity and contribution agreements in Section 7 hereof; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
9. The respective indemnities, agreements, representations, warranties
and other statements of the Company and the several Underwriters, as set forth
in this Agreement or made by or on behalf of them, respectively, pursuant to
this Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any officer or director or
<PAGE>
19
controlling person of the Company, and shall survive delivery of and payment for
the Securities.
Anything herein to the contrary notwithstanding, the indemnity agreement of
the Company in subsection (a) of Section 7 hereof, the representations and
warranties in subsection (b) of Section 2 hereof and any representation or
warranty as to the accuracy of the Registration Statement or the Prospectus
contained in any certificate furnished by the Company pursuant to Section 6
hereof, insofar as they may constitute a basis for indemnification for
liabilities (other than payment by the Company of expenses incurred or paid in
the successful defense of any action, suit or proceeding) arising under the Act,
shall not extend to the extent of any interest therein of a controlling person
or partner of an Underwriter who is a director, officer or controlling person of
the Company when the Registration Statement became effective, except in each
case to the extent that an interest of such character shall have been determined
by a court of appropriate jurisdiction as not against public policy as expressed
in the Act. Unless in the opinion of counsel for the Company the matter has
been settled by controlling precedent, the Company will, if a claim for such
indemnification is asserted, submit to a court of appropriate jurisdiction the
question whether such interest is against public policy as expressed in the Act
and will be governed by the final adjudication of such issue.
10. If any Terms Agreement shall be terminated pursuant to Section 8
hereof, the Company shall not then be under any liability to any Underwriter
with respect to the Securities covered by such Terms Agreement except as
provided in Section 5 and Section 7 hereof; but, if for any other reason
Securities are not delivered by or on behalf of the Company as provided herein,
the Company will reimburse the Underwriters through the Representatives for all
out-of-pocket expenses approved in writing by the Representatives, including
fees and disbursements of counsel, reasonably incurred by the Underwriters in
making preparations for the purchase, sale and delivery of such Securities, but
the Company shall then be under no further liability to any Underwriter with
respect to such Securities except as provided in Section 5 and Section 7 hereof.
11. In all dealings hereunder, the Representatives of the Underwriters of
Securities shall act on behalf of each of such Underwriters, and the parties
hereto shall be entitled to act and rely upon any statement, request, notice or
agreement on behalf of any Underwriter made or given by such Representatives
jointly or by such of the Representatives, if any, as may be designated for such
purpose in the Terms Agreement.
<PAGE>
20
All statements, requests, notices and agreements hereunder shall be in
writing or by telegram if promptly confirmed in writing, and if to the
Underwriters shall be sufficient in all respects if delivered or sent by
registered mail to the address of the Representatives as set forth in the Terms
Agreement; and if to the Company shall be sufficient in all respects if
delivered or sent by registered mail to Dillard's, Inc., 1600 Cantrell Road,
Little Rock, Arkansas 72201, Attention: Treasurer; provided, however, that any
notice to an Underwriter pursuant to Section 7(c) hereof shall be delivered or
sent by registered mail to such Underwriter at the address set forth in the
Terms Agreement.
12. This Agreement and each Terms Agreement shall be binding upon, and
inure solely to the benefit of, the Underwriters, the Company and, to the extent
provided in Section 7 and Section 9 hereof, the officers and directors of the
Company and each person who controls the Company or any Underwriter, and their
respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement or any such Terms Agreement. No purchaser of any of the Securities
from any Underwriter shall be deemed a successor or assign by reason merely of
such purchase.
13. Time shall be of the essence of each Terms Agreement. As used herein
the term "business day" shall mean any day when the Commission's office in
Washington, D.C. is normally open for business.
14. This Agreement and each Terms Agreement shall be construed in
accordance with the laws of the State of New York.
15. This Agreement and each Terms Agreement may be executed by any one or
more of the parties hereto and thereto in any number of counterparts, each of
which shall be deemed to be an original, but all such respective counterparts
shall together constitute one and the same instrument.
-------------------
<PAGE>
ANNEX I
(Three copies of this Delayed Delivery Contract should be signed and returned to
the address shown below so as to arrive not later than 9:00 A.M., New York time,
on _______________ __, 19__*.)
DELAYED DELIVERY CONTRACT
-------------------------
[Insert date of
initial public
offering]
DILLARD'S, INC.
c/o [Name and address
of Underwriter[s]]
Gentlemen:
The undersigned hereby agrees to purchase from DILLARD'S, INC. ("Company"),
and the Company agrees to sell to the undersigned, [If one delayed closing,
-----------------------
insert---as of the date hereof, for delivery on __________________, 19__
- ------
("Delivery Date"),]
[$] _______________________________
principal amount of the Company's [Insert title of securities] ("Securities"),
--------------------------
offered by the Company's Prospectus dated __________________, 19__ and a
Prospectus Supplement dated _________, 19__, relating thereto, receipt of copies
of which is hereby acknowledged, at __% of the principal amount thereof plus
accrued interest from __________________, 19__, if any, and on the further terms
and conditions set forth in this Delayed Delivery Contract ("Contract").
[If two or more delayed closings, insert the following:
-----------------------------------------------------
The undersigned will purchase from the Company as of the date hereof, for
delivery on the dates set forth below, Securities in the principal amounts set
forth below:
Delivery Date Principal Amount
- ------------- ----------------
________________________ [$]_____________
________________________ [$]_____________
- ------------------------
*/ Insert date which is third full business day prior to Closing Date under the
- -
Terms Agreement.
<PAGE>
2
Each of such delivery dates is hereinafter referred to as a Delivery Date.]
Payment for the Securities that the undersigned has agreed to purchase for
delivery on---the--each--Delivery Date shall be made to the Company or its order
by wire transfer of immediately available funds to a bank account designated by
the Company upon delivery to the undersigned of the Securities to be purchased
by the undersigned---for delivery on such Delivery Date--in definitive fully
registered form and in such denominations and registered in such names as the
undersigned may designate by written or telegraphic communication addressed to
the Company not less than three full business days prior to--the---such--
Delivery Date.
It is expressly agreed that the provisions for delayed delivery and payment
are for the sole convenience of the undersigned; that the purchase hereunder of
Securities is to be regarded in all respects as a purchase as of the date of
this Contract; that the obligation of the Company to make delivery of and accept
payment for, and the obligation of the undersigned to take delivery of and make
payment for, Securities on--the--each--Delivery Date shall be subject only to
the conditions that (1) investment in the Securities shall not at--the--such--
Delivery Date be prohibited under the laws of any jurisdiction in the United
States to which the undersigned is subject and (2) the Company shall have sold
to the Underwriters the total principal amount of the Securities less the
principal amount thereof covered by this and other similar Contracts. The
undersigned represents that its investment in the Securities is not, as of the
date hereof, prohibited under the laws of any jurisdiction to which the
undersigned is subject and which governs such investment.
Promptly after completion of the sale to the Underwriters the Company will
mail or deliver to the undersigned at its address set forth below, notice to
such effect, accompanied by a copy of the opinion of counsel for the Company
delivered to the Underwriters in connection therewith.
This Contract will inure to the benefit of and be binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of the other.
It is understood that the acceptance of any such Contract is in the
Company's sole discretion and, without limiting the foregoing, need not be on a
first-come, first-served basis. If this Contract is acceptable to the Company,
it is requested that the Company sign the form of acceptance below and
<PAGE>
3
mail or deliver one of the counterparts hereof to the undersigned at its address
set forth below. This will become a binding contract between the Company and the
undersigned when such counterpart is so mailed or delivered.
Yours very truly,
--------------------------------
(Name of purchaser)
By _____________________________
--------------------------------
(Title of Signatory)
--------------------------------
--------------------------------
(Address of Purchaser)
Accepted, as of the above date,
DILLARD'S, INC.
By____________________________
Name:
Title:
<PAGE>
ANNEX II (A)
DILLARD'S, INC.
("Company")
Debt Securities
TERMS AGREEMENT
---------------
,19__
Dillard's, Inc.
P.O. Box 486
Little Rock, Arkansas 72203
Attention: Vice President and Treasurer
Dear Sirs:
[On behalf of the several Underwriters named in Schedule A hereto and for
their respective accounts, we] [We] offer to purchase, on and subject to the
terms and conditions of the Underwriting Agreement Basic Provisions filed as an
exhibit to the Company's registration statement on Form S-3 (No. 333-___)
("Underwriting Agreement"), the following securities ("Securities") to be issued
under an indenture, dated ________, 19__, between the Company and
_______________, as Trustee, on the following terms:
Title: [ %] [Floating Rate] [Zero Coupon] [Notes] [Debentures]
-----
Due ___
Aggregate Principal Amount: [$]
--------------------------
Interest: [ % per annum, from , 19 , payable semiannually on
--------
and commencing , 19 , to holders of record on the preceding
or
, as the case may be.]
[Describe any deferral provisions]
Maturity: , 19 .
--------
Redemption:
----------
[No provisions for redemption]
[The Securities may be redeemed, otherwise than through the sinking fund, in
whole or in part at the option of the
<PAGE>
Company, in the amount of $ or
an integral multiple thereof, [on or after , at the
following redemption prices (expressed in percentages of principal
amount).] If [redeemed on or before , %, and if] redeemed
during the 12-month period beginning
REDEMPTION
YEAR PRICE
---- ----------
and thereafter at 100% of their principal amount, together in each case with
accrued interest to the redemption date.]
[on any interest payment date falling in or after , ,
at the election of the Company, at a redemption price equal to the principal
amount thereof, plus accrued interest to the date of redemption.]
[Other possible redemption provisions, such as mandatory redemption upon
occurrence of certain events or redemption for changes in tax law]
[Restriction on refunding]
Sinking Fund:
------------
[No sinking fund provisions]
[The Securities are entitled to the benefit of a sinking fund to retire $
principal amount of Securities on in each of the years through
at 100% of their principal amount plus accrued interest] [, together with
[cumulative] [noncumulative] redemptions at the option of the Company to
retire an additional $ principal amount of Securities in the years
through at 100% of their principal amount plus accrued interest].
[Other Terms]
Delayed Delivery contracts: [None.] [Delivery Date[s] shall be
-------------------------- , 19 .
Underwriters' fee is % of the principal amount of the Contract Securities.]
Purchase Price: % of the principal amount of the Securities, plus accrued
--------------
interest from to [and accrued amortization, if any, from to ]
<PAGE>
2
Expected Reoffering Price: % of the principal amount of the Securities,
-------------------------
plus accrued interest from to [and
accrued amortization, if any, from to ]
Closing Date: A.M. on , 19 , at
------------
_____________________ in New York
Federal (same-day) funds.
[Name[s] and Address[es] of Representative[s]:]
--------------------------------------------
The respective principal amounts of the Securities to be purchased by each of
the Underwriters are set forth opposite their names in Schedule A hereto.
[If Securities are extendable debt Securities, insert ---
Extendable provisions:
- ---------------------
Securities are repayable on , [insert date and years], at the
option of the holder, at their principal amount with accrued interest.
Initial annual interest rate will be %, and thereafter annual
interest rate will be adjusted on , and to a rate not
less than % of the effective annual interest rate on U.S. Treasury
obligations with -year maturities as of the [insert date 15 days
prior to maturity date] prior to such [insert maturity date].]
[If Securities are Floating Rate debt Securities, insert--
Floating rate provisions:
- ------------------------
Initial annual interest rate will be % through [and
thereafter will be adjusted [monthly] [on each , ,
and ] [to an annual rate of % above the average rate for
-year
<PAGE>
3
[month] [securities] [certificates of deposit] by and [insert
names of banks].] [and the annual interest rate [thereafter] [from,
through ] will be the interest yield equivalent of the weekly
average per annum market discount rate for -month Treasury bills plus
% of Interest Differential (the excess, if any, of (i) then current weekly
average per annum secondary market yield for -month certificates of
deposit over (ii) then current interest yield equivalent of the weekly
average per annum market discount rate for -month Treasury bills);
[from and thereafter the rate will be the then current interest yield
equivalent plus % of Interest Differential ].]
[If appropriate, insert--It is understood that we may, with your
----------------------
consent, amend this offer to add additional Underwriters and reduce the
aggregate principal amount to be purchased by the Underwriters listed in
Schedule A hereto by the aggregate principal amount to be purchased by such
additional Underwriters.]
The provisions of the Underwriting Agreement are incorporated herein
by reference [If appropriate, insert--, except that the obligations and
----------------------
agreements set forth in Section 8 ("Default of Underwriters") of the
Underwriting Agreement shall not apply to the obligations of the Underwriters to
purchase the above Securities].
The Securities will be made available for checking and packaging at
the office of at least 24 hours prior to the Closing Date.
[Please signify your acceptance of our offer by signing the enclosed
response to us in the space provided and returning it to us.]
<PAGE>
5
[Please signify your acceptance of the aforegoing by return wire not
later than P.M. today.]
Very truly yours,
[Insert name(s) of Representatives
or Underwriters] [On behalf of-- themselves--itself---
and as
Representative[s] of the Several]
[As] Underwriters[s]
[By [Name of Representative]]
By______________________________
Name:
Title:
<PAGE>
SCHEDULE A
Principal
Underwriter Amount
----------- ---------
---------
Total. . . . . . . . . . . . . . . . . . . . . . [$]
=========
<PAGE>
To: [Insert name(s) of Representatives
or Underwriters]
As [Representative[s] of the Several]
Underwriter[s],
[c/o [Name of Representative]]
We accept the offer contained in your [letter] [wire], dated , 19
, relating to [$]__________ principal amount of our [Insert title of
---------------
Securities]. We also confirm that, to the best of our knowledge after
- ----------
reasonable investigation, the representations and warranties of the undersigned
in the Underwriting Agreement filed as an exhibit to the undersigned's
registration statement on Form S-3 (No. 333-_____) ("Underwriting Agreement")
are true and correct, no stop order suspending the effectiveness of the
Registration Statement (as defined in the Underwriting Agreement) or of any part
thereof has been issued and no proceedings for that purpose have been instituted
or, to the knowledge of the undersigned, are contemplated by the Securities and
Exchange Commission and, subsequent to the respective dates of the most recent
financial statements in the Prospectus (as defined in the Underwriting
Agreement), there has been (or in the case of a form of prospectus filed
pursuant to Rule 424(b)(1) or (4) there will be, as of the date of such
prospectus) no material adverse change in the financial position or results of
operations of the undersigned and its subsidiaries except as set forth in or
contemplated by the Prospectus.
Very truly yours,
DILLARD'S, INC.
By________________________________
Name:
Title:
<PAGE>
ANNEX II (B)
DILLARD'S, INC.
("Company")
Equity Securities
TERMS AGREEMENT
---------------
,19__
Dillard's, Inc.
P.O. Box 486
Little Rock, Arkansas 72203
Attention: Vice President and Treasurer
Dear Sirs:
[On behalf of the several Underwriters named in Schedule A hereto and for
their respective accounts, we] [We] offer to purchase, on and subject to the
terms and conditions of the Underwriting Agreement Basic Provisions filed as an
exhibit to the Company's registration statement on Form S-3 (No. 333-___)
("Underwriting Agreement"), the following securities ("Securities") on the
following terms:
Title: [Class A Common Stock] [Additional Preferred Stock, Series ______]
-----
Number of Shares to be issued: [______ shares]
-----------------------------
[For Additional Preferred Stock:
Voting Rights:
-------------
Additional Preferred Stock Dividends: [cash dividends of $ to $ per share
------------------------------------
payable quarterly in arrears on _____ __, ______ __, _______ __ and _______ __.]
Optional Redemption:
-------------------
[No provisions for redemption]
[The Securities may be redeemed, otherwise than through the sinking fund, in
whole or in part at the option of the Company, in the amount of $ or
an integral multiple thereof, [on or after , at the
following redemption prices (expressed in percentages of principal
amount).] If [redeemed on or before , %, and if] redeemed
during the 12-month period beginning
<PAGE>
2
REDEMPTION
YEAR PRICE
---- ----------
and thereafter at 100% of their principal amount, together in each case
with accrued interest to the redemption date.]
[on any interest payment date falling in or after , ,
at the election of the Company, at a redemption price equal to the
principal amount thereof, plus accrued interest to the date of redemption.]
[Other possible redemption provisions, such as mandatory redemption upon
occurrence of certain events or redemption for changes in tax law]
[Restriction on refunding]
Mandatory Redemption/Sinking Fund:
---------------------------------
[No sinking fund provisions]
[The Securities are entitled to the benefit of a sinking fund to retire
$ principal amount of Securities on in each of the
years through at 100% of their principal amount plus accrued
interest] [, together with [cumulative] [noncumulative] redemptions at the
option of the Company to retire an additional $ principal amount
of Securities in the years through at 100% of their
principal amount plus accrued interest].
Liquidation Preference: [$ per share plus ].
----------------------
Name of Exchange or Market: [New York Stock Exchange] [NASDAQ National
--------------------------
Market System] [American Stock Exchange]
[Period Designated Pursuant to Section 4(e) of the Underwriting Agreement:
-------------------------------------------------------------------------
______ days.]
[Other Terms]
Price to Public: $________ per share
---------------
<PAGE>
3
Underwriting Discounts and Commission:
-------------------------------------
Proceeds to Company:
-------------------
Over-Allotment Option:
---------------------
Closing Date: A.M. on , 19 , at
------------
_____________________ in New York
Federal (same-day) funds.
Name of Transfer Agent and Registrar:
------------------------------------
[Name[s] and Address[es] of Representative[s]:]]
--------------------------------------------
[For Class A Common Stock:
Name of Exchange or Market: [New York Stock Exchange] [NASDAQ National
--------------------------
Market System] [American Stock Exchange]
[Period Designated Pursuant to Section 4(e) of the Underwriting Agreement:
------------------------------------------------------------------------
______ days.]
[Other Terms]
Price to Public: $________ per share
---------------
Underwriting Discounts and Commission:
-------------------------------------
Proceeds to Company:
-------------------
Over-Allotment Option:
---------------------
Closing Date: A.M. on , 19 , at
------------
_____________________ in New York
Federal (same-day) funds.
Name of Transfer Agent and Registrar:
------------------------------------
[Name[s] and Address[es] of Representative[s]:]]
--------------------------------------------
The respective shares of the Securities to be purchased by each of the
Underwriters are set forth opposite their names in Schedule A hereto.
[If appropriate, insert--It is understood that we may, with your consent,
----------------------
amend this offer to add additional Underwriters and reduce the number of shares
to be purchased by the Underwriters listed in Schedule A hereto by the number of
shares to be purchased by such additional Underwriters.]
<PAGE>
4
The provisions of the Underwriting Agreement are incorporated herein by
reference [If appropriate, insert--, except that the obligations and agreements
----------------------
set forth in Section 8 ("Default of Underwriters") of the Underwriting Agreement
shall not apply to the obligations of the Underwriters to purchase the above
Securities].
The Securities will be made available for checking and packaging at the
office of at least 24 hours prior to the Closing Date.
[Please signify your acceptance of our offer by signing the enclosed
response to us in the space provided and returning it to us.]
<PAGE>
5
[Please signify your acceptance of the aforegoing by return wire not later
than P.M. today.]
Very truly yours,
[Insert name(s) of Representatives
or Underwriters] [On behalf of-- themselves--itself---
and as
Representative[s] of the Several]
[As] Underwriters[s]
[By [Name of Representative]]
By______________________________
Name:
Title:
<PAGE>
SCHEDULE A
Number of
Underwriter Shares
----------- ---------
---------
Total. . . . . . . . . . . . . . . . . . . . . .
=========
<PAGE>
To: [Insert name(s) of Representatives
or Underwriters]
As [Representative[s] of the Several]
Underwriter[s],
[c/o [Name of Representative]]
We accept the offer contained in your [letter] [wire], dated ,
19 , relating to ____________ shares of our [Insert title of Securities] (the
--------------------------
"Terms Agreement"). We also confirm that, to the best of our knowledge after
reasonable investigation, the representations and warranties of the undersigned
in the Underwriting Agreement Basic Provisions filed as an exhibit to the
undersigned's registration statement on Form S-3 (No. 333-_____) (together with
the Terms Agreement, the "Underwriting Agreement") are true and correct, no stop
order suspending the effectiveness of the Registration Statement (as defined in
the Underwriting Agreement) or of any part thereof has been issued and no
proceedings for that purpose have been instituted or, to the knowledge of the
undersigned, are contemplated by the Securities and Exchange Commission and,
subsequent to the respective dates of the most recent financial statements in
the Prospectus (as defined in the Underwriting Agreement), there has been (or in
the case of a form of prospectus filed pursuant to Rule 424(b)(1) or (4) there
will be, as of the date of such prospectus) no material adverse change in the
financial position or results of operations of the undersigned and its
subsidiaries except as set forth in or contemplated by the Prospectus.
Very truly yours,
DILLARD'S, INC.
By________________________________
Name:
Title:
<PAGE>
ANNEX III
Pursuant to Section 6 (d) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect
to the Company and its subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules examined by them and
included or incorporated by reference in the Registration Statement or the
Prospectus comply as to form in all material respects with the applicable
accounting requirements of the Act or the Exchange Act, as applicable, and
the related published rules and regulations thereunder; and, if applicable,
they have made a review in accordance with standards established by the
American Institute of Certified Public Accountants of the consolidated
interim financial statements, selected financial data, pro forma financial
information and/or condensed financial statements derived from audited
financial statements of the Company for the periods specified in such
letter, as indicated in their reports thereon, copies of which have been
furnished to the representatives of the Underwriters (the
"Representatives");
(iii) The unaudited selected financial information with respect to
the consolidated results of operations and financial position of the
Company for the five most recent fiscal years included in the Prospectus
and included or incorporated by reference in Item 6 of the Company's Annual
Report on Form 10-K for the most recent fiscal year agrees with the
corresponding amounts (after restatement where applicable) in the audited
consolidated financial statements for five such fiscal years which were
included or incorporated by reference in the Company's Annual Reports on
Form 10-K for such fiscal years;
(iv) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available interim
financial statements of the Company and its subsidiaries, inspection of the
minute books of the Company and its subsidiaries since the date of the
latest audited financial statements included or incorporated by
<PAGE>
2
reference in the Prospectus, inquiries of officials of the Company and its
subsidiaries responsible for financial and accounting matters and such
other inquiries and procedures as may be specified in such letter, nothing
came to their attention that caused them to believe that:
(A) the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of changes in
financial position included or incorporated by reference in the
Company's Quarterly Reports on Form 10-Q incorporated by reference in
the Prospectus do not comply as to form in all material respects with
the applicable accounting requirements of the Exchange Act as it
applies to Form 10-Q and the related published rules and regulations
thereunder or are not in conformity with generally accepted accounting
principles applied on a basis substantially consistent with the basis
for the audited consolidated statements of income, consolidated
balance sheets and consolidated statements of changes in financial
position included or incorporated by reference in the Company's Annual
Report on Form 10-K for the most recent fiscal year;
(B) any other unaudited income statement data and balance sheet
items included in the Prospectus do not agree with the corresponding
items in the unaudited consolidated financial statements from which
such data and items were derived, and any such unaudited data and
items were not determined on a basis substantially consistent with the
basis for the corresponding amounts in the audited consolidated
financial statements included or incorporated by reference in the
Company's Annual Report on Form 10-K for the most recent fiscal year;
(C) the unaudited financial statements which were not included
in the Prospectus but from which were derived the unaudited condensed
financial statements referred to in clause (A) and any unaudited
income statement data and balance sheet items included in the
Prospectus and referred to in Clause (B) were not determined on a
basis substantially consistent with the basis for the audited
financial statements included or incorporated by reference in the
Company's Annual Report on Form 10-K for the most recent fiscal year;
(D) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the Prospectus do
not
<PAGE>
3
comply as to form in all material respects with the applicable
accounting requirements of the Act and the published rules and
regulations thereunder or the pro forma adjustments have not been
properly applied to the historical amounts in the compilation of those
statements;
(E) as of a specified date not more than five days prior to the
date of such letter, there have been any changes in the consolidated
capital stock (other than issuances of capital stock upon exercise of
options and stock appreciation rights, upon earn-outs of performance
shares and upon conversions of convertible securities, in each case
which were outstanding on the date of the latest balance sheet
included or incorporated by reference in the Prospectus) or any
increase in the consolidated long-term debt of the Company and its
subsidiaries, or any decreases in consolidated net current assets or
net assets or other items specified by the Representatives, or any
increases in any items specified by the Representatives, in each case
as compared with amounts shown in the latest balance sheet included or
incorporated by reference in the Prospectus, except in each case for
changes, increases or decreases which the Prospectus discloses have
occurred or may occur or which are described in such letter; and
(F) for the period from the date of the latest financial
statements included or incorporated by reference in the Prospectus to
the specified date referred to in Clause (E) there were any decreases
in consolidated net sales or income before income taxes or the total
or per share amounts of consolidated net income or other items
specified by the Representatives, any increases in the ratio of
administrative and general expenses or interest expense to net sales,
or any increases in any items specified by the Representatives, in
each case as compared with the comparable period of the preceding year
and with any other period of corresponding length specified by the
Representatives, except in each case for increases or decreases which
the Prospectus discloses have occurred or may occur or which are
described in such letter; and
(v) In addition to the examination referred to in their report(s)
included or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures
referred to
<PAGE>
4
in paragraphs (iii) and (iv) above, they have carried out certain specified
procedures, not constituting an examination in accordance with generally
accepted auditing standards, with respect to certain amounts, percentages
and financial information specified by the Representatives which are
derived from the general accounting records of the Company and its
subsidiaries, which appear in the Prospectus (excluding documents
incorporated by reference), or in Part II of, or in exhibits and schedules
to, the Registration Statement specified by the Representatives or in
documents incorporated by reference in the Prospectus specified by the
Representatives, and have compared certain of such amounts, percentages and
financial information with the accounting records of the Company and its
subsidiaries and have found them to be in agreement.
All references in this Annex III to the Prospectus shall be deemed to refer
to the Prospectus as amended or supplemented (including the documents
incorporated by reference therein) in relation to the applicable Securities for
purposes of the letter delivered at the Closing Date for such Securities.
<PAGE>
EXHIBIT 4-m
DILLARD'S CAPITAL TRUST ___
______ ___, 1998
among
AMENDED AND RESTATED TRUST AGREEMENT
among
DILLARD'S, INC., as Depositor,
THE CHASE MANHATTAN BANK, as Property Trustee,
CHASE MANHATTAN BANK DELAWARE, as Delaware Trustee
and
the Administrators named herein
______ ___, 1998
<PAGE>
DILLARD'S CAPITAL TRUST ___
Certain Sections of this Trust Agreement relating to
Sections 3 to through 318 of the Trust Indenture Act of 1939:
Trust Indenture Trust Agreement
Act Section Section
310(a)(1).................................................................(a)(2)
(a)(2).......................................................................8.7
(a)(3).......................................................................8.9
(a)(4)................................................................2.7(a)(ii)
(b)................................................................8.8, 10.10(b)
311(a)............................................................8.13, 10.10(b)
(b)...............................................................8.13, 10.10(b)
312(a)..................................................................10.10(b)
(b)................................................................10.10(b), (f)
(c)..........................................................................5.7
313(a)...................................................................8.15(a)
(b).............................................................8.15(a), 8.15(b)
(c).................................................................8.15(), 10.8
(d)......................................................................8.15(a)
314(a)......................................................................8.16
(b)...............................................................Not Applicable
(c)(1)................................................................8.16, 8.17
(c)(2)................................................................8.16, 8.17
(c)(3)................................................................8.16, 8.17
(e).........................................................................8.17
315(a)....................................................................8.1(d)
(b)..........................................................................8.2
(c).......................................................................8.1(c)
(d).......................................................................8.1(d)
(e)...............................................................Not applicable
316(a)............................................................Not applicable
(a)(1)(A).........................................................Not applicable
(a)(1)(B).........................................................Not applicable
(a)(2)............................................................Not applicable
(b).........................................................................5.13
(c)..........................................................................6.7
317(a)(1).........................................................Not applicable
(a)(2)......................................................................8.14
(b).........................................................................5.10
318(a)..................................................................10.10(a)
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Trust
i
<PAGE>
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINED TERMS.............................................................. 1
SECTION 1.1. Definitions............................................... 1
ARTICLE II
CONTINUATION OF THE ISSUER TRUST........................................... 12
SECTION 2.1. Name...................................................... 12
SECTION 2.2. Office of the Delaware Trustee; Principal Place of
Business.................................................. 13
SECTION 2.3. Initial Contribution of Trust Property; Organizational
Expenses.................................................. 13
SECTION 2.4. Issuance of the Trust Securities.......................... 13
SECTION 2.5. Issuance of the Common Securities; Subscription and
Purchase of Subordinated Debentures....................... 14
SECTION 2.6. Declaration of Trust...................................... 14
SECTION 2.7. Authorization to Enter into Certain Transactions.......... 15
SECTION 2.8. Assets of Trust........................................... 18
SECTION 2.9. Title to Trust Property................................... 19
ARTICLE III
PAYMENT ACCOUNT............................................................ 19
SECTION 3.1. Payment Account........................................... 19
ARTICLE IV
DISTRIBUTIONS; REDEMPTION.................................................. 19
SECTION 4.1. Distributions............................................. 19
SECTION 4.2. Redemption................................................ 21
SECTION 4.3. Subordination of Common Securities........................ 23
SECTION 4.4. Payment Procedures........................................ 24
SECTION 4.5. Tax Returns and Reports................................... 24
SECTION 4.6. Payment of Taxes, Duties, Etc. of the Issuer Trust........ 25
SECTION 4.7. Payments under Indenture or Pursuant to Direct Actions.... 25
SECTION 4.8. Liability of the Holder of Common Securities.............. 25
ARTICLE V
TRUST SECURITIES CERTIFICATES.............................................. 26
SECTION 5.1. Initial Ownership......................................... 26
SECTION 5.2. The Trust Securities Certificates......................... 26
ii
<PAGE>
Page
----
SECTION 5.3. Execution and Delivery of Trust Securities Certificates... 26
SECTION 5.4. Global Capital Security................................... 27
SECTION 5.5. Registration of Transfer and Exchange Generally; Certain
Transfers and Exchanges; Capital Securities Certificates.. 28
SECTION 5.6. Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates.............................................. 30
SECTION 5.7. Persons Deemed Holders.................................... 31
SECTION 5.8. Access to List of Holders' Names and Addresses............ 31
SECTION 5.9. Maintenance of Office or Agency........................... 31
SECTION 5.10. Appointment of Paying Agent............................... 31
SECTION 5.11. Ownership of Common Securities by Depositor............... 32
SECTION 5.12. Notices to Clearing Agency................................ 32
SECTION 5.13. Rights of Holders......................................... 32
ARTICLE VI
ACTS OF HOLDERS; MEETINGS; VOTING.......................................... 35
SECTION 6.1. Limitations on Holder's Voting Rights..................... 35
SECTION 6.2. Notice of Meetings........................................ 36
SECTION 6.3. Meetings of Holders....................................... 36
SECTION 6.4. Voting Rights............................................. 37
SECTION 6.5. Proxies, etc.............................................. 37
SECTION 6.6. Holder Action by Written Consent.......................... 37
SECTION 6.7. Record Date for Voting and Other Purposes................. 38
SECTION 6.8. Acts of Holders........................................... 38
SECTION 6.9. Inspection of Records..................................... 39
ARTICLE VII
REPRESENTATIONS AND WARRANTIES............................................. 39
SECTION 7.1. Representations and Warranties of the Property
Trustee and the Delaware Trustee.......................... 39
SECTION 7.2. Representations and Warranties of Depositor............... 40
ARTICLE VIII
THE ISSUER TRUSTEES; THE ADMINISTRATORS.................................... 41
SECTION 8.1. Certain Duties and Responsibilities....................... 41
SECTION 8.2. Certain Notices........................................... 44
SECTION 8.3. Certain Rights of Property Trustee........................ 44
SECTION 8.4. Not Responsible for Recitals
iii
<PAGE>
Page
----
or Issuance of Securities................................. 47
SECTION 8.5. May Hold Securities....................................... 47
SECTION 8.6. Compensation; Indemnity; Fees............................. 47
SECTION 8.7. Corporate Property Trustee Required: Eligibility
of Trustees and Administrators............................ 49
SECTION 8.8. Conflicting Interests..................................... 49
SECTION 8.9. Co-Trustees and Separate Trustee.......................... 49
SECTION 8.10. Resignation and Removal; Appointment of Successor......... 51
SECTION 8.11. Acceptance of Appointment by Successor.................... 52
SECTION 8.12. Merger, Conversion, Consolidation or Succession
to Business............................................... 53
SECTION 8.13. Preferential Collection of Claims Against Depositor
or Issuer Trust........................................... 53
SECTION 8.14. Trustee May File Proofs of Claim.......................... 54
SECTION 8.15. Reports by Property Trustee............................... 54
SECTION 8.16. Reports to the Property Trustee........................... 55
SECTION 8.17. Evidence of Compliance with Conditions Precedent.......... 55
SECTION 8.18. Number of Issuer Trustees................................. 55
SECTION 8.19. Delegation of Power....................................... 55
SECTION 8.20. Appointment of Administrators............................. 56
ARTICLE IX
DISSOLUTION, LIQUIDATION AND MERGER........................................ 57
SECTION 9.1. Dissolution Upon Expiration Date.......................... 57
SECTION 9.2. Early Termination......................................... 57
SECTION 9.3. Termination............................................... 57
SECTION 9.4. Liquidation............................................... 58
SECTION 9.5. Mergers, Consolidations, Amalgamations or
Replacements of the Issuer Trust.......................... 59
ARTICLE X
MISCELLANEOUS PROVISIONS................................................... 61
SECTION 10.1. Limitation of Rights of Holders........................... 61
SECTION 10.2. Amendment................................................. 61
SECTION 10.3. Separability.............................................. 62
SECTION 10.4. Governing Law............................................. 63
SECTION 10.5. Payments Due on Non-Business Day.......................... 63
SECTION 10.6. Successors................................................ 63
SECTION 10.7. Headings.................................................. 64
iv
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Page
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SECTION 10.8. Reports, Notices and Demands.............................. 64
SECTION 10.9. Agreement Not to Petition................................. 64
SECTION 10.10. Trust Indenture, Act; Conflict with Trust
Indenture Act............................................. 65
SECTION 10.11. Acceptance of Terms of Trust Agreement,
Guarantee and Indenture................................... 66
SECTION 10.12. Counterparts.............................................. 66
Exhibit A Certificate of Trust
Exhibit B Form of Certificate Depositary Agreement
Exhibit C Form of Common Securities Certificate
Exhibit D Form of Capital Securities Certificate
Exhibit E Form of Expense Agreement
v
<PAGE>
AGREEMENT
Amended and Restated Trust Agreement, dated as of ______ ___, 1998, among (i)
Dillard's, Inc., a Delaware corporation (including any successors or assigns,
the "Depositor"), (ii) The Chase Manhattan Bank, a New York banking corporation,
as property trustee, (in such capacity, the "Property Trustee"), (iii) Chase
Manhattan Bank Delaware, a Delaware banking corporation, as Delaware trustee
(the "Delaware Trustee") (the Property Trustee and the Delaware Trustee are
referred to collectively herein as the "Issuer Trustees"), (iv) two individuals
selected by the holders of the Common Securities (as defined herein) to act as
administrators with respect to the Issuer Trust (the "Administrators") and (v)
the several Holders, as hereinafter defined.
W I T N E S S E T H
- - - - - - - - - -
WHEREAS, the Issuer Trust (as defined herein) has been established under the
Delaware Business Trust Act pursuant to a certain Trust Agreement, dated as of
July 14, 1998 (the "Original Trust Agreement"), and by the filing of the
Certificate of Trust of the Issuer Trust with the Secretary of State of the
State of Delaware on July 14, 1998 (the "Certificate of Trust"), which
Certificate of Trust is attached as Exhibit A; and
WHEREAS, the Depositor, the Property Trustee and the Delaware Trustee desire
to amend and restate the Original Trust Agreement in its entirety as set forth
herein to provide for, among other things, (i) the issuance of the Common
Securities by the Issuer to the Depositor, (ii) the issuance and sale of the
Capital Securities by the Issuer Trust pursuant to the Underwriting Agreement,
(iii) the acquisition by the Issuer Trust from the Depositor of all the right,
title and interest in the Subordinated Debentures, and (iv) the appointment of
the Administrators.
NOW, THEREFORE, in consideration of the agreements and obligations set forth
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, each party, for the benefit of the
other parties and for the benefit of the Holders, hereby amends and restates the
Original Trust Agreement in its entirety and agrees, intending to be legally
bound, as follows:
ARTICLE I
DEFINED TERMS
SECTION I.1. Definitions. For all purposes of this Trust Agreement, except
as otherwise expressly provided or unless the context otherwise requires:
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2
(a) The terms defined in this Article have the meaning assigned to them in
this Article and include the plural as well as the singular;
(b) All other terms used herein that are defined in the Trust Indenture Act,
either directly or by reference therein, have the meanings assigned to them
therein;
(c) The word "include," "includes" and "including" shall be deemed to be
followed by the phrase "without limitation":
(d) All accounting terms lately used but not defined herein have the meanings
assigned to them in accordance with United States generally accepted accounting
principles as in effect at the time of computation.
(e) Unless the context otherwise requires any reference to an "Article" or
"Section" refers to an Article or a Section, as the case may be, of this Trust
Agreement; and
(f) The words "herein", "hereof" and "hereunder" and other words of similar
import refer to this Trust Agreement as a whole and not to any particular
Article, Section or other subdivision.
"Acts" has the meaning specified in Section 6.8.
"Additional Amounts" means, with respect to Trust Securities of a given
Liquidation Amount and/or a given period, the amount of Additional Interest (as
defined in the Subordinated Debt Indenture) paid by the Depositor on a Like
Amount of Subordinated Debentures for such period.
"Additional Sums" has the meaning specified in the Subordinated Debt
Indenture.
"Administrators" means each Person appointed in accordance with Section 8.20
solely in such Person's capacity as Administrator of the Issuer Trust and not in
such Person's individual capacity, or any successor Administrator appointed as
herein provided; with the initial Administrators being __________ and
____________.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or
indirectly,whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Applicable Procedures" means, with respect to any transfer or transaction
involving a Global Capital Security or
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3
beneficial interest therein, the rules and procedures of the Depositary for such
"Capital Security", in each case to the extent applicable to such transaction
and as in effect from time to time.
"Bankruptcy Event" means, with respect to any Person:
(a) the entry of a decree or order by a court having jurisdiction in the
premises judging such Person a bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization, arrangement, adjudication or
composition of or in respect of such Person under any applicable federal or
State bankruptcy, insolvency, reorganization or other similar law, or appointing
a receiver, liquidator assignee, "trustee, sequestrator (or other similar
official) of such Person or of any substantial part of its property or ordering
the winding up or liquidation of its affairs, and the continuance of any such
decree or order unstayed and in effect for a period of 60 consecutive days; or
(b) the institution by such Person of proceedings to be adjudicated a
bankrupt or insolvent, or the consent by it to the institution of bankruptcy or
insolvency proceedings against it, or the filing by it of a petition or answer
or consent seeking reorganization or relief under any applicable federal or
State bankruptcy, insolvency, reorganization or other similar law, or the
consent by it to the filing of any such petition or to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator (or similar official) of
such Person or of any substantial part of its property or the making by it of an
assignment for the benefit of creditors, or the admission by it in writing of
its inability to pay its debts generally as they become due and its willingness
to be adjudicated a bankrupt, or the taking of corporate action by such Person
in furtherance of any such action.
"Bankruptcy Laws" has the meaning specified in Section 10.9.
"Board of Directors" means the board of directors of the Depositor or the
Executive Committee of the board of directors of the Depositor (or any other
committee of the board of directors of the Depositor performing similar
functions) or a committee designated by the board of directors of the Depositor
(or any such committee), comprised of two or more members of the board of
directors of the Depositor or officers of the Depositor, or both.
"Board Resolution" means a copy of a resolution certified by the Secretary or
an Assistant Secretary of the Depositor to have been duly adopted by the
Depositor's Board of Directors, or such committee of the Board of Directors or
officers of the Depositor to which authority to act on behalf of the Board of
Directors has been delegated and to be in full force and effect on the date of
such certification, and delivered to the Issuer Trustees.
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4
"Business Day" means a day other than (a) a Saturday or Sunday and (b) a day
on which banking institutions in The City of New York are authorized or required
by law or executive order to remain closed.
"Capital Securities Certificate" means a certificate evidencing ownership of
Capital Securities, substantially in the form attached as Exhibit D.
"Capital Security" means a preferred undivided beneficial interest in the
assets of the Issuer Trust, having a Liquidation Amount of $____ and having the
rights provided therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
"Certificate Depositary Agreement" means the agreement among the Issuer Trust,
the Depositor and the Depositary, as the initial Clearing Agency, dated as of
the Closing Date, substantially in the form attached as Exhibit B. as the same
may be amended and supplemented from time to time.
"Certificate of Trust" has the meaning specified in the preamble to this Trust
Agreement.
"Clearing Agency" means an organization registered as a "clearing agency"
pursuant to Section 17A of the Exchange Act. The Depositary shall be the initial
Clearing Agency.
"Clearing Agency Participant" means a broker, dealer, bank, other financial
institution or other Person for whom from time to time a Clearing Agency effects
book-entry transfers and pledges of securities deposited with the Clearing
Agency.
"Closing Date" has the meaning specified in the Underwriting Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act, or, if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Common Securities Certificate" means a certificate evidencing ownership of
Common Securities, substantially in the form attached as Exhibit C.
"Common Securities Subscription Agreement" means the common securities
subscription agreement between the Issuer Trust and the Depositor dated ______
___, 1998.
"Common Security" means an undivided beneficial
<PAGE>
5
interest in the assets of the Issuer Trust, having a Liquidation Amount of $25
and having the rights provided thereof in this Trust Agreement, including the
right to receive Distributions and a Liquidation Distribution as provided
herein.
"Corporate Trust Office" means the principal office to the Property Trustee
located in the City of New York which at the time of the execution of this Trust
Agreement is located at 101 Barclay Street, Floor 21 West, New York, New York
10286: Attention: Corporate Trust Administration.
"Debenture Event of Default" means an "Event of Default" as defined in the
Indenture.
"Debenture Redemption Date" means, with respect to any Subordinated Debentures
to be redeemed under the Indenture, the date fixed for redemption of such
Subordinated Debentures under the Indenture.
"Debt Securities Trustee" means The Bank of New York, a New York banking
corporation, as Trustee under the Indenture and any successor.
"Delaware Business Trust Acts" means Chapter 38 of Title 12 of the Delaware
Code, C. 12 Del. (S)3801, et seq., as it may be amended from time to time.
"Delaware Trustee" means the corporation identified as the "Delaware Trustee"
in the preamble to this Trust Agreement solely in its capacity as Delaware
Trustee of the Issuer Trust and not in its individual capacity, or its successor
in interest in such capacity, or any successor trustee appointed as herein
provided.
"Depositor" has the meaning specified in the preamble to this Trust Agreement.
"Depositary" means The Depository Trust Company or any successor thereto.
"Direct Action" has the meaning specified in Section 5.13.
"Distribution Date" has the meaning specified in Section 4.1(a).
"Distributions" means amounts payable in respect of the Trust Securities as
provided in Section 4.1.
"Early Termination Event" has the meaning specified in Section 9.2.
"Event of Default" means any one of the following events (whatever the reason
for such Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of any
court
<PAGE>
6
or any order, rule or regulation of any administrative or governmental body):
(a) the occurrence of a Debenture Event of Default; or
(b) default by the Issuer Trust or the Property Trustee in the payment of any
Distribution when it becomes due and payable, and continuation of such default
for a period of 30 days; or
(c) default by the Issuer Trust or the Property Trustee in the payment of any
Redemption Price of any Trust Security when it becomes due and payable: or
(d) default in the performance, or breach, in any material respect, of any
covenant or warranty of the issuer Trustees in this Trust Agreement (other than
a covenant or warranty, a default in the performance of which or the breach of
which is dealt with in clause (b) or (c) above) and continuation of such default
or breach for a period of 60 days after there has been given, by registered or
certified mail, to the Issuer Trustees and the Depositor by the Holders of at
least 25% in aggregate Liquidation Amount of the Outstanding Capital Securities,
a written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default" hereunder; or
(e) the occurrence of any Bankruptcy Event with respect to the Property
Trustee or all or substantially all of its property if a successor Property
Trustee has not been appointed within a period of 90 days thereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended, and
any successor statute thereto, in each case as amended from time to time.
"Expense Agreement" means the Agreement as to Expenses and Liabilities, dated
as of the Closing Date, between the Depositor, in its capacity as holder of the
Common Securities, and the Issuer Trust, substantially in the form attached as
Exhibit E, as amended from time to time.
"Expiration Date" has the meaning specified in Section 9.1.
"Global Capital Securities Certificate" means a Capital Securities Certificate
evidencing ownership of Global Capital Securities.
"Global Capital Security" means a Capital Security, the ownership and
transfers of which shall be made through book entries by a Clearing Agency as
described in Section 5.4.
"Guarantee Agreement" means the Guarantee Agreement executed and delivered by
the Depositor and The Bank of New York, as Guarantee Trustee, contemporaneously
with the execution and
<PAGE>
7
delivery of this Trust Agreement, for the benefit of the holders of the Capital
Securities, as attended from time to time.
"Holder" means a Person in whose name a Trust Security or Trust Securities is
registered in the Securities Register; any such Person shall be a beneficial
owner within the meaning of the Delaware Business Trust Act.
"Indenture" means the Subordinated Debt Indenture, dated as of _______ ___,
1998, between the Depositor and the Debt Securities Trustee (as amended or
supplemented from time to time) relating to the issuance of the Subordinated
Debentures.
"Investment Company Act" means the Investment Company Act of 1940, as amended.
"Investment Company Event" means the receipt by the Issuer Trust of an Opinion
of Counsel experienced in such matters, who shall not be an officer or employee
of the Depositor or any of its Affiliates, to the effect that, as a result of
the occurrence of a change in law or regulation or a written change (including
any announced prospective change) in interpretation or application of law or
regulation by any legislative body, court, governmental agency or regulatory
authority, there is more than an insubstantial risk that the Issuer Trust is or
will be considered an "investment company" that is required to be registered
under the Investment Company Act, which change or prospective change becomes
effective or would become effective, as the case may be, on or after the date of
the issuance of the Capital Securities.
"Issuer Trust" means Dillard's Capital Trust ___.
"Issuer Trustees" means, collectively, the Property Trustee and the Delaware
Trustee.
"Subordinated Debentures" means the aggregate principal amount of the
Depositor's ____% Subordinated Deferrable Interest Debentures maturing on
_______ ____, _____ unless such maturity is advanced pursuant to the terms
thereof, issued pursuant to the Indenture.
"Subordinated Debenture Subscription Agreement" means the subordinated
debenture subscription agreement between the Issuer Trust and the Depositor
dated ______ ___, 1998.
"Lien" means any lien. pledge, charge, encumbrance, mortgage, deed of trust,
adverse ownership interest, hypothecation, assignment, security interest or
preference, priority or other security agreement or preferential arrangement of
any kind or nature whatsoever.
"Like Amount" means (a) with respect to a redemption of Trust Securities,
Trust Securities having a Liquidation Amount equal to that portion of the
principal amount of Subordinated Debentures to be contemporaneously redeemed in
accordance with
<PAGE>
8
the Indenture, allocated to the Common Securities and to the Capital Securities
based upon the relative Liquidation Amounts of such classes and (b) with respect
to a distribution of Subordinated Debentures to Holders of Trust Securities in
connection with a dissolution or liquidation of the Issuer Trust, Subordinated
Debentures having a principal amount equal to the Liquidation Amount of the
Trust Securities of the Holder to whom such Subordinated Debentures are
distributed.
"Liquidation Amount" means the stated amount of $___ per Trust Security.
"Liquidation Date" means the date on which Subordinated Debentures are to be
distributed to Holders of Trust Securities in connection with a dissolution and
liquidation of the Issuer Trust pursuant to Section 9.4.
"Liquidation Distribution" has the meaning specified in Section 9.4(d).
"Majority in Liquidation Amount of the Capital Securities" or "Majority in
Liquidation Amount of the Common Securities" means, except as provided by the
Trust Indenture Act, Capital Securities or Common Securities, as the case may
be, representing more than 50% of the aggregate Liquidation Amount of all then
Outstanding Capital Securities or Common Securities, as the case they may be.
"Officer's Certificate" means a certificate signed by the Chairman of the
Board, the President, the Chief Financial Officer, the Chief Strategic and
Administrative Officer, the Chief Legal Officer, the Treasurer, any Assistant
Treasurer of the Depositor, or any other person authorized by the Board of
Directors of the Depositor to execute any such written statement, and delivered
to the party provided herein. Any Officer's Certificate delivered with respect
to compliance with a condition or covenant provided for in this Trust Agreement
shall include:
(a) a statement by the officer signing the Officer's Certificate that such
officer has read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by such officer in rendering the Officer's Certificate;
(c) a statement that such officer has made such examination or investigation
as, in such officer's opinion, is necessary to enable such officer 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 each such officer, such
condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of
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9
counsel, who may, unless otherwise specified herein, be counsel for or an
officer or employee of the Depositor or any Affiliate of the Depositor.
"Original Trust Agreement" has the meaning specified in the preamble to this
Trust Agreement.
"Outstanding," with respect to Securities, means, as of the date of
determination, all Trust Securities theretofore executed and delivered under
this Trust Agreement, except:
(a) Trust Securities theretofore canceled by the Property Trustee or
delivered to the Property Trustee for cancellation:
(b) Trust Securities for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Property Trustee or any Paying
Agent for the Holders of such Trust Securities, provided that if such Trust
Securities are to be redeemed, notice of such redemption has been duly given
pursuant to this Trust Agreement; and
(c) Trust Securities which have been paid or in exchange for or in lieu of
which other Trust Securities have been executed and delivered pursuant to
Sections 5.4, 5.5. 5.6 and 5.13: provided, however, that in determining whether
the Holders of the requisite Liquidation Amount of the Outstanding Capital
Securities have given any request, demand, authorization, direction, notice,
consent or waiver hereunder, Capital Securities owned by the Depositor, or any
Issuer Trustee, any Administrator or any Affiliate of the Depositor or any
Issuer Trustee shall be disregarded and deemed not to be Outstanding, except
that (a) in determining whether any Issuer Trustee shall be protected in relying
upon any such request, demand, authorization direction, notice, consent or
waiver, only Capital Securities that such Issuer Trustee or such Administrator,
as the case may be, actually knows to be so owned shall be so disregarded and
(b) the foregoing shall not apply at any time when all of the outstanding
Capital Securities are owned by the Depositor, one or more of the Issuer
Trustees, one or more of the Administrators and/or any such Affiliate. Capital
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Administrators
the pledgee's right so to act with respect to such Capital Securities and that
the pledges is not the Depositor or any Affiliate of the Depositor.
"Owner" means each Person who is the beneficial owner of Global Capital
Securities as reflected in the records of the Clearing Agency or, if a Clearing
Agency Participant is not the Owner, then as reflected in the records of a
Person maintaining an account with such Clearing Agency (directly or
indirectly), in accordance with the rules of such Clearing Agency.
"Paying Agent" means any paying agent or co-paying agent appointed pursuant to
Section 5.10 and shall initially be
<PAGE>
10
the Property Trustee.
"Payment Account" means a segregated non-interest-bearing corporate trust
account maintained with the Property Trustee in its trust department for the
benefit of the Holders in which all amounts paid in respect of the Subordinated
Debentures will be held and from which the Property Trustee, through the Paying
Agent, shall make payments to the Holders in accordance with Sections 4.1 and
4.2.
"Person" means a legal person, including any individual, corporation, estate,
partnership, joint venture, association, joint stock company, company, limited
liability company, trust. unincorporated organization or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"Property Trustee" means the Person identified as the "Property Trustee" in
the preamble to this Trust Agreement solely in its capacity as Property Trustee
of the issuer Trust and not in its individual capacity, or its successor in
interest in such capacity, or any successor property trustee appointed as herein
provided.
"Redemption Date" means, with respect to any Trust Security to be Indexed, the
date fixed for such redemption by or pursuant to this Trust Agreement; provided
that each Debenture Redemption Date and the stated maturity of the Subordinated
Debentures shall be a Redemption Date for a Like Amount of Trust Securities,
including but not limited to any date of redemption pursuant to the occurrence
of any Special Event.
"Redemption Price" means, with respect to any Trust Security, the Liquidation
Amount such Trust Security, plus accumulated and unpaid Distributions to the
Redemption Date.
"Relevant Trustee" has the meaning specified in Section 8.10.
"Responsible Officers" when used with respect to the Property Trustee means
any officer assigned to the Corporate Trust Office. including any managing
director, vice presided, assistant vice president, assistant treasurer,
assistant secretary or any other officer of the Property Trustee customarily
performing functions similar to those performed by any of the above designated
officers and having direct ability the administration of this Trust Agreement,
and also. with respect to a particular roaster, any other of to whom such matter
is referred because of such officer's knowledge of and familiarity with the;
particular subject.
"Securities Act" means the Securities Act of 1933, as amended, and any
successor statute thereto, in each case as amended from time to time.
"Securities Register" and "Securities Registrar" have
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11
the respective meanings specified in Section 5.5.
"Senior Indebtedness" has the meaning specified in the Indenture.
"Special Event" means any Tax Event or Investment Company Event.
"Tax Event" means the receipt by the Issuer Trust of an Opinion of Counsel
experienced in such matters, who shall not be an officer or employee of the
Depositor or any of its Affiliates, to the effect that, as a result of any
amendment to, or change (including any announced prospective change) in, the
laws (or any regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein or as a result of any
official or administrative pronouncement or action or judicial decision
interpreting or applying such laws or regulations, which amendment or change is
effective or which pronouncement, action or decision is announced on or after
the date of issuance of the Capital Securities, there is more than an
insubstantial risk that (i) the Issuer Trust is, or will be within 90 days of
the delivery of such Opinion of Counsel, subject to United States Federal income
tax with respect to income received or accrued on the Subordinated Debentures,
(ii) interest payable by the Depositor on the Subordinated Debentures is not, or
within 90 days of the delivery of such Opinion of Counsel will not be,
deductible by the Depositor, in whole or in part, for United States federal
income tax purposes, or (iii) the Issuer Trust is, or will be within 90 days of
the delivery of such Opinion of Counsel, subject to more than a de minimis
amount of other taxes, duties or other governmental charges.
"Trust Agreement" means this Amended and Restated Trust Agreement, as the same
may be modified, amended or supplemented in accordance with the applicable
provisions hereof, including (i) all Exhibits hereto, and (ii) for all purposes
of this Amended and Restated Trust Agreement any such modification, amendment or
supplement, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this Amended and Restated Trust Agreement and any
modification, amendment or supplement, respectively.
"Trust Indenture Act" means the Trust Indenture Act of 1939 or any successor
statute, in each case as amended from time to time.
"Trust Property" means (a) the Subordinated Debentures, (b) any cash on
deposit in, or owing to, the Payment Account, and (c) all proceeds and rights in
respect of the forgoing or any other property and assets for the time being held
or deemed to be held by the Property Trustee pursuant to the trusts of this
Trust Agreement.
"Trust Securities Certificate" means any one of the Common Securities
Certificates or the Capital Securities Certificates.
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12
"Trust Security" means any one of the Common Securities or the Capital
Securities.
"Underwriters" has the meaning specified in the Underwriting Agreement;
"Underwriting Agreement" means the Underwriting Agreement, dated as of _____
___, 1998, among the Issuer Trust, the Depositor and the Underwriters, as the
same may be amended from time to time.
ARTICLE II
CONTINUATION OF THE ISSUER TRUST
SECTION II.1. Name. The Issuer Trust continued hereby shall by known as
"Dillard's Capital Trust ___", as such name may be modified from time to time by
the Administrators following written notice to the Holders of Trust Securities
and the Issuer Trustees, in which name the Administrators and the Issuer
Trustees may engage in the transactions contemplated hereby, make and execute
contracts and other instruments on behalf of the Issuer Trust and sue and be
sued.
SECTION II.2. Office of the Delaware Trustee; Principal Place of Business.
The address of the Delaware Trustee in the State of Delaware is 1201 Market
Street, Wilmington, Delaware 19801, Attention: Corporate Trust Administration,
or such other address in the State of Delaware as the Delaware Trustee may
designate by written notice to the Holders and the Depositor, the principal
executive office of the Issuer Trust is in care of Dillard's, Inc., 1600
Cantrell Road, Little Rock, Arkansas 72201 Attention: Office of the Secretary.
SECTION II.3. Initial Contribution of Trust Property; Organizational
Expenses.
The Issuer Trust acknowledges receipt in trust from the Depositor in
connection with this Trust Agreement of the sum of $10, which constitutes the
initial Trust Property. The Depositor shall pay all organizational expenses of
the Issuer Trust as they arise or shall, upon request of any Issuer Trustees
promptly reimburse such Issuer Trustee for any such expenses paid by such Issuer
Trustee. The Depositor shall make no claim upon the Trust Property for the
payment of such expenses.
SECTION II.4. Issuance of the Trust Securities.
The Depositor, both on its own behalf and on behalf of the Issuer Trust
pursuant to the Original Trust Agreement, executed and delivered the
Underwriting Agreement. Contemporaneously with the execution and delivery of
this Trust
<PAGE>
13
Agreement, an Administrator, on behalf of the Issuer Trust, shall execute,
manually or by facsimile, in accordance with Section 5.3 and the Property
Trustee shall authenticate in accordance with Section 5.3 and deliver to the
Underwriters, Capital Securities Certificates, registered in the names requested
by the Underwriters, in an aggregate amount of ______ Capital Securities having
an aggregate Liquidation Amount of $_________, against receipt of the aggregate
purchase price of such Capital Securities of $________ by the Property Trustee.
If the Underwriters exercise their option to purchase all or any portion of an
additional __________ Capital Securities pursuant to the terms of the
Underwriting Agreement, then an Administrator, on behalf of the Issuer Trust,
shall execute, manually or by facsimile, in accordance with Section 5.3 and the
Property Trustee shall authenticate in accordance with Section 5.3 and deliver
to the Underwriters, additional Capital Securities Certificates, registered in
the names requested by the Underwriters, in an aggregate amount of up to
_________ additional Capital Securities having an aggregate Liquidation Amount
of up to $_________, against receipt of the aggregate purchase price of such
additional Capital Securities of up to $__________, by the Property Trustee.
SECTION II.5. Issuance of the Common Securities; Subscription and Purchase of
Subordinated Debentures.
Contemporaneously with the execution and delivery of this Trust Agreement, an
Administrator, on behalf of the Issuer Trust, shall execute or cause to be
executed in accordance with Section 5.2 and delver to the Depositor Common
Securities Certificates, registered in the name of the Depositor, in an
aggregate amount of _________ Common Securities having an aggregate Liquidation
Amount of $_______ against receipt of the aggregate purchase price of such
Common Securities of $________ by the Property Trustee. Contemporaneously
therewith, an Administrator, on behalf of the Issuer Trust, shall subscribe for
and purchase from the Deposit or the Subordinated Debentures, registered in the
name of the Issuer Trust and having an aggregate principal amount equal to
$___________ and, in satisfaction of the purchase price for such Subordinated
Debentures, the Property Trustee, on behalf of the Issuer Trust, shall deliver
to the Depositor the sum of $___________ (being the sum of the amounts delivered
to the Property Trustee pursuant to (i) the second sentence of Section 2.4, and
(ii) the first sentence of this Section 2.5) and receive on behalf of the Issuer
Trust the Subordinated Debenture.
If the Underwriters exercise their option to purchase additional Capital
Securities pursuant to the terms of the Underwriting Agreement, then an
Administrator, on behalf of the Issuer Trust, shall execute or cause to be
executed in accordance with Section 5.2 and deliver to the Depositor, additional
Common Securities Certificates, registered in the name of the Depositor, in an
aggregate amount of up to __________ additional Common Securities having an
aggregate Liquidation Amount of up to
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14
$__________ against receipt of the aggregate purchase price of up to
$____________ by the Property Trustee. Contemporaneously therewith, an
Administrator, on behalf of the Issuer Trust, shall subscribe for and purchase
from the Depositor, Subordinated Debentures, registered in the name of the
Issuer Trust and having an aggregate principal amount of up to $_____________
and, in satisfaction of the purchase price for such Subordinated Debentures, the
Property Trustee, on behalf of the Issuer Trust, shall deliver to the Depositor
an aggregate amount equal to the sum of the amounts delivered to the Property
Trustee pursuant to (i) the third sentence of Section 2.4, and (ii) the third
sentence of this Section 2.5, and receive on behalf of the Issuer Trust such
Subordinated Debentures.
SECTION II.6. Declaration of Trust.
The exclusive purposes and functions of the Issuer Trust are to (a) issue and
sell Trust Securities and use the proceeds from such sale to acquire the
Subordinated Debentures, and (b) engage in only those other activities
necessary, convenient or incidental thereto. The Depositor hereby appoints the
Issuer Trustees as trustees of the Issuer Trust, to have all the rights, powers
and duties to the extent set forth herein, and the Issuer Trustees hereby accept
such appointment. The Property Trustee hereby declares that it will hold the
Trust Property in Ruse upon and subject to the conditions see forth herein for
the benefit of the Issuer Trust and the Holders. The Depositor hereby appoints
the Administrators, with such Administrators having all rights, powers and
duties set forth herein with respect to accomplishing the purposes of the Issuer
Trust, and the Administrators hereby accept such appointment, provided,
however, that it is the intent of the parties hereto that such Administrators
shall not be trustees with respect to the Issuer Trust and this Trust Agreement
shall be construed in a manner consistent with such intent. The Property
Trustee shall have the right and power to perform those duties assigned to the
Administrators. The Delaware Trustee shall not be entitled to exercise any
powers, nor shall the Delaware Trustee have any of the duties and
responsibilities, of the Property Trustee or the Administrator set forth herein.
The Delaware Trustee shall be one of the trustees of the Issuer Trust for the
sole and limited purpose of fulfilling the requirements of Section 3807 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.
SECTION II.7. Authorization to Enter into Certain Transactions.
(a) The Issuer Trustees and the Administrators shall conduct the affairs of
the Issuer Trust in accordance with the terms of this Trust Agreement. Subject
to the limitations set forth in paragraph (b) of this Section and in accordance
with the following provisions (i), (ii) and (iii), the Issuer Trustees and the
Administrators shall act as follows:
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(i) Each Administrator, acting singly or jointly, is authorized, on
behalf of the Trust, to:
(A) comply with the Underwriting Agreement regarding the issuance
and sale of the Capital Securities;
(B) assist in compliance with the Securities Act, applicable state
securities or blue sky laws, and the Trust Indenture Act:
(C) assist in the listing of the Capital Securities upon such
securities exchange or exchanges as shall be determined by the Depositor,
with the registration of the Capital Securities under the Exchange Act,
if required, and the preparation and filing of all periodic and other
reports and other documents pursuant to the foregoing;
(D) execute the Trust Securities on behalf of the Issuer Trust in
accordance with this Trust Agreement;
(E) execute and deliver an application for a taxpayer
identification number for the Issuer Trust;
(F) execute on behalf of the Issuer Trust any document that the
Administrators have the power to execute pursuant to this Trust
Agreement, including without limitation a Subordinated Debenture
Subscription Agreement, a Common Securities Subscription Agreement, a
Certificate Depositary Agreement and an Expense Agreement, all by and
between the Issuer Trust and the Depositor; and
(G) take any action incidental to the foregoing as necessary or
advisable to give effect to the terms of this Trust Agreement (and any
actions taken in furtherance of the above prior to the date of this Trust
Agreement by the Administrators are hereby ratified and confirmed in all
respects).
(ii) The Property Trustee shall have the power and authority to act on
behalf of the Issuer Trust with respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Subordinated Debentures;
(C) the receipt and collection of interest, principal and any other
payments made in respect of the Subordinated Debentures in the Payment
Account;
(D) the distribution of amounts owed to the Holders in respect of
the Trust Securities;
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(E) the exercise of all of the rights, powers and privileges of a
holder of the Subordinated Debentures;
(F) the sending of notices of default and other information
regarding the Trust Securities and the Subordinated Debentures to the Holders
in accordance with this Trust Agreement;
(G) the distribution of the Trust Property in accordance with the
terms of this Trust Agreement;
(H) to the extent provided in this Trust Agreement, the winding up
of the affairs of and liquidation of the Issuer Trust and the execution of the
certificate of cancellation with the Secretary of State of the State of
Delaware, and
(I) after an Event of Default (other than under the definition of
such term if such Event of Default is by or with respect to the Property
Trustee), compliance with the provisions of this Trust Agreement and the
taking of any action to give effect to the terms of this Trust Agreement and
protect and conserve the Trust Property for the benefit of the Holders
(without consideration of the effect at any such action on any particular
Holder);
provided, however, that nothing in this Section 2.7(a)(ii) shall require the
Property Trustee to take any action that is not otherwise required in this Trust
Agreement.
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or
the Issuer Trustees or Administrators acting on behalf of the Issuer Trust)
shall not undertake any business, activities or transaction except as expressly
provided herein or contemplated hereby. In particular, neither the Issuer
Trustees nor the Administrators shall (i) acquire any investments or engage in
any activities not authorized by this Trust Agreement, (ii) sell, assign,
transfer, exchange, mortgage, pledge, set-off or otherwise dispose of any of the
Trust Property or interests therein, including to Holders, except as expressly
provided herein, (iii) take any action that would reasonably be expected to
cause the Issuer Trust to become taxable as a corporation for United States
Federal income tax purposes, (iv) incur any indebtedness for borrowed money or
issue any other debt, or (v) take or consent to any action that would result in
the placement of a Lien on any of the Trust Property. The Property Trustee
shall defend all claims and demands of all Persons at any time claiming any Lien
on any of the Trust Property adverse to the interest of the Issuer Trust or the
Holders in their capacity as Holders.
(c) In connection with the issue and sale of the Capital Securities, the
Depositor shall have the right and responsibility to assist the Issuer Trust
with respect to, or effect on behalf of the Issuer Trust, the following (and any
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actions taken by the Depositor in furtherance of the following prior to the date
of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) the preparation and filing by the Issuer Trust, and execution on
behalf of the Issuer Trust, of a registration statement, and a prospectus in
relation to the Capital Securities, including any amendments thereto and the
taking of any action necessary or desirable to sell the Capital Securities in
a transaction or a series of transactions nor exempt from the registration
requirements of the Securities Act;
(ii) the determination of the States in which to take appropriate action to
qualify or register for sale all or part of the Capital Securities and the and
the determination of any and all such acts, other than actions that must be
taken by or on behalf of the Issuer Trust, and the advice to the Issuer
Trustees of actions they must take on behalf of the Issuer Trust, and the
preparation for execution and filing of any documents to be executed and filed
by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems
necessary or advisable in order to comply with the applicable laws of any such
States in connection with the sale of the Capital Securities;
(iii) the negotiation of the terms of, and the execution and delivery of,
the Underwriting Agreement providing for the sale of the Capital Securities;
(iv) compliance with the listing requirements of the Capital Securities
upon such securities exchange or exchanges as shall be determined by the
Depositor, the registration of the Capital Securities under the Exchange Act,
if required, and the preparation and filing of all periodic and other reports
and other documents pursuant to the foregoing; and
(v) the taking of any other actions necessary or desirable to carry out
any of the foregoing activities;
(d) Notwithstanding anything herein to the contrary, the Administrators
and the Property Trustee are authorized and directed to conduct the affairs of
the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will
not be deemed to be an "investment company" required to be registered under the
Investment Company Act, and will not be taxable as a corporation for the United
States Federal income tax purposes and so that the Subordinated Debentures will
be treated as indebtedness of the Depositor for United States Federal income tax
purposes. In this connection, the Property Trustee and the Holders of Common
Securities are authorized to take any action, not inconsistent with applicable
law, the Certificate of Trust or this Trust Agreement, that the Property Trustee
and Holders of Common Securities determine in their discretion to be necessary
or desirable for such purposes, as long as such action does not
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18
adversely affect in any material respect the interests of the holders of the
Outstanding Capital Securities. In no event shall the Administrators or the
Issuer Trustees be liable to the Issuer Trust or the Holders for any failure to
comply with this section that results from a change in law or regulations or in
the interpretation thereof.
SECTION II.8. Assets of Trust.
The assets of the Issuer Trust shall consist solely of the Trust Property.
SECTION II.9. Title to Trust Property.
Legal title to all Trust Property shall be vested at all times in the Property
Trustee (in its capacity as such) and shall be held and administered by the
Property Trustee for the benefit of the Issuer Trust and the Holders in
accordance with this Trust Agreement.
ARTICLE III
PAYMENT ACCOUNT
SECTION III.1. Payment Account.
(a) On or prior to the Closing Date, the Property Trustee shall establish the
Payment Account. The Property Trustee and its agents shall have exclusive
control and sole right of withdrawal with respect to the Payment Account for the
purpose of making deposits in and withdrawals from the Payment Account in
accordance with this Trust Agreement. All monies and other property deposited
or held from time to time in the Payment Account shall be held by the Property
Trustee in the Payment Account for the exclusive benefit of the Holders and for
distribution as herein provided, including and subject to) any priority of
payments provided for herein.
(b) The Property Trustee shall deposit in the Payment Account, promptly upon
receipt, all payments of principal of or interest on, and any other payments or
proceeds with respect to, the Subordinated Debentures. Amounts held in the
Payment Account shall not be invested by the Property Trustee pending
distribution thereof.
ARTICLE IV
DISTRIBUTIONS; REDEMPTION
SECTION IV.1. Distributions.
(a) The Trust Securities represent undivided beneficial interests in the
Trust Property, and Distributions (including of Additional Amounts) will be made
on the Trust
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Securities at the rate and on the dates that payments of interest (including of
Additional Interest, as defined in the Indenture, are made on the Subordinated
Debentures. Accordingly:
(i) Distributions on the Trust Securities shall be cumulative and will
accumulate whether or not there are funds of the Issuer Trust available for
the payment of Distributions. Distributions shall accumulate from and
including ______ ___, 1998, and, except in the event (and to the extent) that
the Depositor exercises its right to defer the payment of interest on the
Subordinated Debentures pursuant to the Indenture, shall be payable quarterly
in arrears on _________ ___, _________ ___, ________ ___ and _________ ___ of
each year, commencing on _____ ___, 1998. If any date on which a Distribution
is otherwise payable on the Trust Securities is not a Business Day, then the
payment of such Distribution shall be made on the next succeeding day that is
a Business Day (without any interest or other payment in respect of any such
delay), with the same force and effect as if made on the date on which such
payment was originally payable (each date on which distributions are payable
in accordance with this Section 4;1(a), a "Distribution Date").
(ii) The Trust Securities shall be entitled to Distributions payable at a
rate of 70% per annum of the Liquidation Amount of the Trust Securities. The
amount of Distributions payable for any period less than a full Distribution
period shall be computed on the basis of a 360-day year of twelve 30-day
months and the actual number of days elapsed in a partial month in a period.
Distributions payable for each full Distribution period will be computed by
dividing the rate per annum by four (4). The amount of Distributions payable
for any period shall include any Additional Amounts in respect of such period.
(iii) So long as no Debenture Event of Default has occurred and is
continuing, the Depositor has the right under the Indenture to defer the
payment of interest on the Subordinated Debentures at any time and from time
to time for a period not exceeding 20 consecutive quarterly periods (an
"Extension Period"), provided that no Extension Period may extend beyond the
seated maturity of the Subordinated Debentures (as such stated maturity may be
shortened in accordance with the terms of the Indenture). As a consequence of
any such deferral, quarterly Distributions on the Trust Securities by the
Issuer Trust will also be deferred to the extent and except as provided in the
Substantial Debentures, and the amount of Distributions to which Holders of
the Trust Securities are entitled that have been so deferred will accumulate
Additional Distributions thereon at the rate per annum of 7.10%, compounded
quarterly from the most recent Distribution payment date on which
Distributions were paid, computed on the basis of a 360-day year of twelve 30-
day months and the actual days elapsed in a partial month in such period.
Additional Distributions
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payable for each full Distribution period will be computed by dividing the
rate per annum by four (4). The term "Distributions" as used in Section 4.1
shall include any such additional Distributions provided pursuant to this
Section 4. 1(a)(iii).
(iv) Distributions on the Trust Securities shall be made by the Property
Trustee from the Payment Account and shall be payable on each Distribution
Date only to the extent that the Issuer Trust has funds then on hand and
available in the Payment Account for the payment of such Distributions.
(b) Distributions on the Trust Securities with respect to a Distribution
Date shall be payable to the Holders thereof as they appear on the Securities
Register for the Trust Securities at the close of business on the relevant
record date, which shall be at the close of business on the 15th calendar day of
the month next preceding the relevant Distribution Date, whether or not a
Business Day.
SECTION IV.2. Redemption.
(a) On each Debenture Redemption Date and on the stated maturity of the
Subordinated Debentures, the Issuer Trust will be required to redeem a Like
Amount of Trust Securities at the Redemption Price.
(b) Notice of redemption shall be given by the Property Trustee by first-
class mail, postage prepaid, mailed not less than 30 nor more than 60 days prior
to the Redemption Date to each Holder of Trust Securities to be redeemed, at
such Holder's address appearing in the Security Register. All notices of
redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price, or if the Redemption Price cannot be calculated
prior to the time the notice is required to be sent, the estimate of the
Redemption Price provided pursuant to the Indenture together with a statement
that it is an estimate and that the actual Redemption Price will be calculated
on the third Business Day prior to the Redemption Date (and if an estimate is
provided, a further notice shall be sent of the actual Redemption Price on the
date, or as soon as practicable thereafter, that notice of such actual
Redemption Price is received pursuant to the Indenture);
(iii) the CUSIP number or CUSIP numbers of the Capital Securities affected;
(iv) if less than all the Outstanding Trust Securities are to be redeemed,
the identification and the total Liquidation Amount of the particular Trust
Securities to be redeemed;
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(v) that, on the Redemption Date, the Redemption Price will become due and
payable upon each such Trust Security to be redeemed and that Distributions
thereon will cease to accumulate on and after said date, except as provided in
Section 4.2(d) below; and
(vi) the place or places where Trust Securities are to be surrendered for
the payment of the Redemption Price.
The Issuer Trust in issuing the Trust Securities shall use "CUSIP" numbers,
and the Property Trustee shall indicate the "CUSIP" numbers of the Trust
Securities in notices of redemption and related materials as a convenience to
Holders; provided that any such notice may state that no representation is made
as to the correctness of such numbers either as printed on the Trust Securities
or as contained in any notice of redemption and related material.
(c) The Trust Securities redeemed on each Redemption Date shall be redeemed
at the Redemption Price with the applicable proceeds from the contemporaneous
redemption of Subordinated Debentures. Redemptions of the Trust Securities shall
be made and the Redemption Price shall be payable on each Redemption Date only
to the extent that the Issuer Trust has funds then on hand and legally available
in the Payment Account for the payment of such Redemption Price.
(d) If the Issuer Trust gives a notice of redemption in respect of any
Capital Securities, then, by 12:00 noon, New York City time, on the Redemption
Date, subject to Section 4.2(c), the Property Trustee will,, with respect to
Capital Securities held in book-entry form. irrevocably deposit with the
Clearing Agency for such Capital Securities, to the extent available therefor,
funds sufficient to pay the applicable Redemption Price and will give such
Clearing Agency irrevocable instructions and authority to pay the Redemption
Price to the Holders of the Capital Securities. With respect to Capital
Securities that are not held in book-entry form, the Property Trustee, subject
to Section 4.2(c), will irrevocably deposit with the Paying Agent, to the extent
available therefor, funds sufficient to pay the applicable Redemption Price and
will give the Paying Agent irrevocable instruction and authority to pay the
Redemption Price to the Holder of the Capital Securities upon surrender of their
Capital Securities Certificates. Notwithstanding the foregoing, Distributions
payable on or prior to the Redemption Date for any Trust Securities called for
redemption shall be payable to the Holders of such Trust Securities as they
appear on the Securities Register for the Trust Securities on the relevant
record dates for the related Distribution Dates. If notice of redemption shall
have been given and funds deposited as required, then, upon the date of such
deposit, all rights of Holders holding Trust Securities so called for redemption
will cease, except the right of such Holders to receive the Redemption Price and
any Distribution payable in respect of the Trust Securities on or prior to the
Redemption
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Date, but without interest, and such Securities will cease to be Outstanding. In
the event that any date on which any applicable Redemption Price is payable is
not a Business Day, then payment of the applicable Redemption Price payable on
such date will be made on the next succeeding day that is a Business Day (and
without any interest or other payment in respect of any such delay) with the
same force and effect as if made on such date. In the event that payment of the
Redemption Price in respect of any Trust Securities called for redemption is
improperly withheld or refused and not paid either by the Issuer Trust or by the
Depositor pursuant to the Guarantee Agreement, Distributions on such Trust
Securities will continue to accumulate, as set forth in Section 4.1, from the
Redemption Date originally established by the Issuer Trust for such Trust
Securities to the date such applicable Redemption Price is actually paid, in
which case the actual payment date will be the date fixed for redemption for
purposes of calculating the applicable Redemption Price.
(e) Subject to Section 4.3(a), if less than all the Outstanding Trust
Securities are to be redeemed on a Redemption Date, then the aggregate
Liquidation Amount of such Trust Securities to be redeemed shall be allocated
pro rata to the Common Securities and the Capital Securities based on the
relative Liquidation Amounts of such classes. The particular Capital Securities
to be redeemed shall be selected on a pro rata basis based on their respective
Liquidation Amounts not more than 60 days prior to the Redemption Date by the
Property Trustee from the Outstanding Capital Securities not previously called
for redemption, or if the Capital Securities are then held in the form of a
Global Capital Security in accordance with the customary procedures for the
Clearing Agency. The Property Trustee shall promptly notify the Securities
Registrar in writing of the Capital Securities selected for redemption and, in
the case of any Capital Securities selected for partial redemption, the
Liquidation Amount thereof to be redeemed. For all purposes of this Trust
Agreement, unless the context otherwise requires, all provisions relating to the
redemption of Capital Securities shall relate, in the case of any Capital
Securities redeemed or to be redeemed only in part, to the portion of the
aggregate Liquidation Amount of Capital Securities that has been or is to be
redeemed.
SECTION IV.3. Subordination of Common Securities.
(a) Payment of Distributions (including Additional Amounts, if applicable)
on, the Redemption Price of, and the Liquidation Distribution in respect of, the
Trust Securities, as applicable, shall be made, subject to Section 4.2(e), pro
rata among the Common Securities and the Capital Securities based on the
Liquidation Amount of such Trust Securities; provided, however, that if on any
Distribution Date or Redemption Date any Event of Default resulting from a
Debenture Event of Default in Section 5.1(a) or 5.1(b) of the Indenture shall
have occurred and be continuing, no payment of any Distribution (including any
Additional Amounts) on, Redemption Price of, or Liquidation Distribution in
respect of, any Common Security, and no other
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payment on account of the redemption, liquidation or other acquisition of Common
Securities, shall be made unless payment in full in cash of all accumulated and
unpaid Distributions (including any Additional Amounts) on all Outstanding
Capital Securities for all Distribution periods terminating on or prior thereto,
or, in the case of payment of the Redemption Price the full amount of such
Redemption Price on all Outstanding Capital Securities then called for
redemption, or in the case of payment of the Liquidation Distribution the full
amount of such Liquidation Distribution on all Outstanding Capital Securities,
shall have been made or provided for, and all funds immediately available to the
Property Trustee shall first be applied to the payment in full in cash of all
Distributions (including any Additional Amounts) on, the Redemption Price of, or
the Liquidation Distribution in respect of Capital Securities then due and
payable. The existence of an Event of Default does not entitle the Holders of
Trust Securities to accelerate the maturity thereof.
(b) In the case of the occurrence of any Event of Default resulting from any
Debenture Event of Default, the Holder of the Common Securities shall have no
right to act with respect to any such Event of Default under this Trust
Agreement until the effects of all such Events of Default with respect to the
Capital Securities have been cured, waived or otherwise eliminated. Until all
such Events of Default under this Trust Agreement with respect to the Capital
Securities have been so cured, waived or otherwise eliminated, the Property
Trustee shall act solely on behalf of the Holders of the Capital Securities and
not on behalf of the Holder of the Common Securities, and only the Holders of
the Capital Securities will have the right to direct the Property Trustee to act
on their behalf.
SECTION IV.4. Payment Procedures.
Payments of Distributions (including any Additional Amounts) in respect of the
Capital Securities shall be made by check mailed to the address of the Person
entitled thereto as such address shall appear on the Securities Register or, if
the Capital Securities are held by a Clearing Agency, such Distributions shall
be made to the Clearing Agency in immediately available funds, which will credit
the relevant accounts on the applicable Distribution Dates. Payments of
Distributions to Holders of $1,000,000 or more in aggregate Liquidation Amount
of Capital Securities may be made by wire transfer of immediately available
funds upon written request of such Holder to the Securities Registrar not later
than 15 calendar days prior to the date on which the Distribution is payable.
Payments in respect of the Common Securities shall be made in such manner as
shall be mutually agreed between the Property Trustee and the Holder of the
Common Securities.
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SECTION IV.5. Tax Returns and Reports.
The Administrators shall prepare (or cause to be prepared), at the Depositor's
expense, and file all United States Federal, state and local tax and information
returns and reports required to be filed by or in respect of the Issuer Trust.
In this regard, the Administrators shall (a) prepare and file (or cause to be
prepared and filed) all Internal Revenue Service forms required to be filed in
respect of the Issuer Trust in each taxable year of the Issuer Trust and (b)
prepare and furnish (or cause to be prepared and furnished) to each Holder all
Internal Revenue Service forms required to be provided by the Issuer Trust. The
Administrators shall provide the Depositor and the Property Trustee with a copy
of all such returns and reports promptly after such filing or furnishing. The
Issuer Trustees shall comply with United States Federal withholding and backup
withholding tax laws and information reporting requirements with respect to any
payments to Holders under the Trust Securities.
On or before December 15 of each year during which any Capital Securities are
Outstanding, the Administrators shall furnish to the Property Trustee such
information as may be reasonably requested by the Property Trustee in order that
the Property Trustee may prepare the information which it is required to report
for such year on Internal Revenue Service Forms 1096 and 1099 pursuant to
Section 6049 of the Code. Such information shall include the amount of original
issue discount includible in income for each Outstanding Capital Security during
such year.
SECTION IV.6. Payment of Taxes, Duties, Etc. of the Issuer Trust.
Upon receipt under the Subordinated Debentures of Additional Sums, the
Property Trustee shall promptly pay, or cause the Administrators to pay in
connection with the filing of any tax returns or reports pursuant to Section
4.5. any taxes, duties or governmental charges of whatsoever nature (other than
withholding taxes) imposed on the Issuer Trust by the limited States or any
other taxing authority.
SECTION IV.7. Payments under Indenture or Pursuant to Direct Actions.
Any amount payable hereunder to any Holder of Capital Securities shall be
reduced by the amount of any corresponding payment such Holder has directly
received pursuant to Section 5.8 of the Indenture or Section 5.13 of this Trust
Agreement.
SECTION IV.8. Liability of the Holder of Common Securities.
The Holder of Common Securities shall be liable for the debts and obligations
of the Issuer Trust as set forth in Section 6.7 of the Indenture regarding
allocation of expenses.
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ARTICLE V
TRUST SECURITIES CERTIFICATES
SECTION V.1. Initial Ownership.
Upon the creation of the Issuer Trust and the contribution by the Depositor
pursuant to Section 2.3 and until the issuance of the Trust Securities, and at
any time during which no Trust Securities are Outstanding, the Depositor shall
be the sole beneficial owner of the Issuer Trust.
SECTION V.2. The Trust Securities Certificates.
(a) The Trust Securities Certificates shall be issued in multiples of $25 and
shall be executed on behalf of the Issuer Trust by manual or facsimile signature
of at least one Administrator. Trust Securities Certificates bearing the manual
signatures of individuals who were, at the time when such signatures shall have
been affixed, authorized to sign on behalf of the Issuer Trust, shall be validly
issued and entitled to the benefits of this Trust Agreement, notwithstanding
that such individuals or any of them shall have ceased to be so authorized prior
to the delivery of such Trust Securities Certificates or did not hold such
offices at the date of delivery of such Trust Securities Certificates. A
transferee of a Trust Securities Certificate shall become a Holder, and shall be
entitled to the rights and subject to the obligations of a Holder hereunder,
upon due registration of such Trust Securities Certificate in such transferee's
name pursuant to Section 5.5.
(b) Upon their original issuance, Capital Securities Certificates shall be
issued in the form of one or more fully registered Global Capital Securities
Certificates which will be deposited with or on behalf of the Depositary and
registered in the name of the Depositary's nominee. Unless and until it is
exchangeable in whole or in part for the Capital Securities in definitive form,
a global security may not be transferred except as a whole by the Depositary to
a nominee of the Depositary or by a nominee of the Depositary to the Depositary
or another nominee of the Depositary or by the Depositary or any such nominee to
a successor of such Depositary or a nominee of such successor.
(c) A single Common Securities Certificate representing the Common Securities
shall be issued to the Depositor in the form of a definitive Common Securities
Certificate.
SECTION V.3. Execution and Delivery of Trust Securities Certificates.
At the Closing Date, and on the date, if any, on which the Underwriters
exercise their option to purchase additional Capital Securities pursuant to the
terms of the Underwriting Agreement, as applicable, at least one of the
Administrators
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shall cause Trust Securities Certificates, in an aggregate Liquidation Amount as
provided in Sections 2.4 and 2.5, to be executed on behalf of the Issuer Trust
by manual or facsimile signature. The Capital Securities so executed shall be
delivered to the Property Trustee and upon such delivery the Property Trustee
shall manually authenticate upon the written order of the Depositor such Capital
Securities Certificates and deliver such Capital Securities Certificates upon
the written order of the Depositor, executed by an authorized officer thereof,
without further corporate action by the Depositor, in authorized denominations.
SECTION V.4. Global Capital Security.
(a) Any Global Capital Security issued under this Trust Agreement shall be
registered in the name of the nominee of the Clearing Agency and delivered to
such custodian therefor, and such Global Capital Security shall constitute a
single Capital Security for all purposes of this Trust Agreement.
(b) Notwithstanding any other provision in this Trust Agreement, a Global
Capital Security may not be exchanged in whole or in part for Capital Securities
registered, and no transfer of the Global Capital Security in whole or in part
may be registered, in the name of any Person other than the Clearing Agency for
such Global Capital Security, or its nominee thereof unless (i) such Clearing
Agency advises the Property Trustee in writing that such Clearing Agency is no
longer willing or able to properly discharge its responsibilities as Clearing
Agency with respect to such Global Capital Security or if it ceases to be a
Clearing Agency under the Exchange Act, and the Depositor is unable to locate a
qualified successor within 90 days after receiving such notice or becoming aware
that the Depositary is no longer so registered, (ii) the Issuer Trust at its
option advises the Depositary in writing that it elects to terminate the book-
entry system through the Clearing Agency, or (iii) there shall have occurred and
be continuing an Event of Default.
(c) If a Capital Security is to be exchanged in whole or in part for a
beneficial interest in a Global Capital Security, then either (i) such Global
Capital Security shall be so surrendered for exchange or cancellation as
provided in this Article V or (ii) the aggregate Liquidation Amount thereof
shall be reduced or increased by an amount equal to the portion thereof to be so
exchanged or cancelled or equal to the Liquidation Amount of such other Capital
Security to be so exchanged for a beneficial interest therein, as the case may
be, by means of an appropriate adjustment made on the records of the Security
Registrar, whereupon the Property Trustee, in accordance with the Applicable
Procedures, shall instruct the Clearing Agency or its authorized representative
to make a corresponding adjustment to its records. Upon any such surrender or
adjustment of a Global Capital Security by the Clearing Agency, accompanied by
registration instructions, the Property Trustee shall, subject to Section 5.4(b)
and as otherwise provided in this Article V, authenticate and deliver any
Capital Securities issuable in
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exchange for such Global Capital Security (or any portion thereof) in accordance
with the instructions of the Clearing Agency. The Property Trustee shall not be
liable for any delay in delivery of such instructions and may conclusively rely
on, and shall be fully protected in relying on, such instructions.
(d) Every Capital Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Capital Security or any
portion thereof, whether pursuant to this Article V or Article IV or otherwise,
shall be authenticated and delivered in the form of, and shall be, a Global
Capital Security, unless such Global Capital Security is registered in the name
of a Person other than the Clearing Agency for such Global Capital Security or a
nominee thereof.
(e) The Clearing Agency or its nominee. as the registered owner of a Global
Capital Security, shall be considered the Holder of the Capital Securities
represented by such Global Capital Security for all purposes under this Trust
Agreement and the Capital Securities, and owners of beneficial interests in such
Global Capital Security shall hold such interests pursuant to the Applicable
Procedures and, except as otherwise provided herein, shall not be entitled to
receive physical delivery of any such Capital Securities in definitive form and
shall not be considered the Holders thereof under this Trust Agreement.
Accordingly, any such owner's beneficial interest in the Global Capital Security
shall be shown only on, and the transfer of such interest shall be effected only
through, records maintained by the Clearing Agency or its nominee. Neither the
Property Trustee nor the Securities Registrar shall have any liability in
respect of any transfers effected by the Clearing Agency.
(f) The rights of owners of beneficiary interests in a Global Capital
Security shall be exercised only through the Clearing Agency and shall be
limited to those established by law and agreements between such owners and the
Clearing Agency.
SECTION V.5. Registration of Transfer and Exchange Generally; Certain
Transfers and Exchanges; Capital Securities Certificates.
(a) The Property Trustee shall keep or cause to be kept at its Corporate
Trust Office a register or registers for the purpose of registering Capital
Securities Certificates and transfers and exchanges of Capital Securities
Certificates in which the registrar and transfer agent with respect to the
Capital Securities (the "Securities Registrar"), subject to such reasonable
regulations as it may prescribe, shall provide for the registration of Capital
Securities Certificates and Common Securities Certificates (subject to Section
5.11 in the case of Common Securities Certificates) and registration of
transfers and exchanges of Capital Securities Certificates as herein provided.
Such register is herein sometimes referred to as the "Securities Register." The
Property Trustee is hereby appointed "Securities Registrar" for the purpose of
registering Capital Securities and
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transfers of Capital Securities as herein provided.
Upon surrender for registration of transfer of any Capital Security at the
offices or agencies of the Property Trustee designated for that purpose an
Administrator shall execute, and the Property Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Capital Securities of the same series of any authorized denominations of
like tenor and aggregate Liquidation Amount and bearing such legends as may be
required by this Trust Agreement.
At the option of the Holder, Capital Securities may be exchanged for other
Capital Securities of any authorized denominations, of like tenor and aggregate
Liquidation Amount and bearing such legends as may be required by this Trust
Agreement, upon surrender of the Capital Securities to be exchanged as such
office or agency. Whenever any securities are so surrendered for exchange, an
Administrator shall execute and the Property Trustee shall authenticate and
deliver the Capital Securities that the Holder making the exchange is entitled
to receive.
All Capital Securities issued upon any transfer or exchange of Capital
Securities shall be the valid obligations of the Issuer Trust, evidencing the
same debt, and entitled to the same benefits under this Trust Agreement, as the
Capital Securities surrendered upon such transfer or exchange.
Every Capital Security presented or surrendered for transfer or exchange shall
(if so required by the Property Trustee) be duly endorsed, or be accompanied by
a written instrument of transfer in form satisfactory to the Property Trustee
and the Securities Registrar, duly executed by the Holder thereof or such
Holder's attorney duly authorized in writing.
No service charge shall be made to a Holder for any transfer or exchange of
Capital Securities, but the Property Trustee may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any transfer or exchange of Capital Securities.
Neither the Issuer Trust nor the Property Trustee shall be required, pursuant
to the provisions of this Section, (i) to issue, register the transfer of or
exchange any Capital Security during a period beginning at the opening of
business 15 days before the first mailing of the notice of redemption, or (ii)
to register the transfer of or exchange any Capital Security so selected for
redemption in whole or in part, except, in the case of any such Capital Security
to be redeemed in part, any portion thereof not to be redeemed.
(b) Certain Transfers and Exchanges. Trust Securities may only be
transferred, in whole or in part, in accordance with the terms and conditions
set forth in this Trust Agreement. To the fullest extent permitted by law, any
transfer or purported transfer of any Trust Security not made in accordance with
this Trust Agreement shall be null and void.
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(i) Non Global Security to Non Global Security. A Capital Security that is
not a Global Capital Security may be transferred, in whole or in part, to a
Person who takes delivery in the form of another Trust Security that is not a
Global Security as provided in Section 5.5(a).
(ii) Free Transferability. Subject to this Section 5.5, Capital Securities
shall be freely transferable.
(iii) Exchanges Between Global Capital Security and Non-Global Capital
Security. A beneficial interest in a Global Capital Security may be exchanged
for a Capital Security that is not a Global Capital Security as provided in
Section 5.4.
SECTION V.6. Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates.
If (a) any mutilated Trust Securities Certificate shall be surrendered to the
Securities Registrar, or if the Securities Registrar shall receive evidence to
its satisfaction of the destruction, loss or theft of any Trust Securities
Certificate and (b) there shall be delivered to the Securities Registrar and the
Administrators such security or indemnity as may be required by them to save
each of them harmless, then in the absence of notice that such Trust Securities
Certificate shall have been acquired by a bona fide purchaser, the
Administrators, or any one of them, on behalf of the Issuer Trust shall execute
and make available for delivery, and the Property Trustee shall authenticate, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen Trust
Securities Certificate, a new Trust Securities Certificate of like class, tenor
and denomination. In connection with the issuance of any new Trust Securities
Certificate under this Section, the Administrators or the Securities Registrar
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith. Any duplicate
Trust Securities Certificate issued pursuant to this Section shall constitute
conclusive evidence of an undivided beneficial interest in the assets of the
Issuer Trust corresponding to that evidenced by the lost, stolen or destroyed
Trust Certificate, as if originally issued, whether or not the lost. stolen or
destroyed Trust Securities Certificate shall be found at any time.
SECTION V.7. Persons Deemed Holders.
The Issuer Trustees or the Securities Registrar shall treat the Person in
whose name any Trust Securities are issued as the owner of such Trust Securities
for the purpose of receiving Distributions and for all other purposes
whatsoever, and none of the Issuer Trustees, the Administrators nor the
Securities Registrar shall be bound by any notice to the contrary.
SECTION V.8. Access to List of Holders' Names and
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Addresses.
Each Holder and each Owner shall be deemed to have agreed not to hold the
Depositor, the Proper Trustee, or the Administrators accountable by reason of
the disclosure of its name and address, regardless of the source from which such
information was derived.
SECTION V.9. Maintenance of Office or Agency.
The Property Trustee shall designate, with the consent of the Administrators,
which consent shall not be unreasonably withheld, an office or offices or agency
or agencies where Capital Securities Certificates may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Issuer Trustees in respect of the Trust Securities Certificates may be
served. The Property Trustee initially designates its Corporate Trust Office at
101 Barclay Street. Floor 21 West, New York, NY 10286, Attention: Corporate
Trust Administration, as its corporate trust office for such purposes. The
Property Trustee shall give prompt written notice to the Depositor, the
Administrators and to the Holders of any change in the location of the
Securities Register or any such office or agency.
SECTION V.10. Appointment of Paying Agent.
The Paying Agent shall make Distributions to Holders from the Payment Account
and shall report the amounts of such Distributions to the Property Trustee and
the Administrators. Any Paying Agent shall have the revocable power to withdraw
funds from the Payment Account solely for the purpose of making the
Distributions referred to above. The Property Trustee may revoke such power and
remove any Paying Agent in its sole discretion. The Paying Agent shall initially
be the Property Trustee. Any Person acting as Paying Agent shall be permitted to
resign as Paying Agent upon 30 days' written notice to the Administrators and
the Property Trustee. In the event that the Property Trustee shall no longer be
the Paying Agent or a successor Paying Agent shall resign or its authority to
act be revoked, the Property Trustee shall appoint a successor (which shall be a
bank or trust company) that is reasonably acceptable to the Administrators to
act as Paying Agent. Such successor Paying Agent or any additional Paying Agent
appointed by the Property Trustee shall execute and deliver to the Issuer
Trustees an instrument in which such successor Paying Agent or additional Paying
Agent shall agree with the Issuer Trustees that as Paying Agent, such successor
Paying Agent or additional Paying Agent will hold all sums, if any, held by it
for payment to the Holders in trust for the benefit of the Holders entitled
thereto until such sums shall be paid to such Holders. The Paying Agent shall
return all unclaimed funds to the Property Trustee and upon removal of a Paying
Agent such Paying Agent shall also return all funds in its possession to the
Property Trustee. The provisions of Sections 8.1, 8.3 and 8.6 herein shall apply
to the Bank also in its role as Paying Agent, for so long as the Bank shall act
as Paying
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Agent and, to the extent applicable, to any other paying agent appointed
hereunder. Any reference in this Trust Agreement to the Paying Agent shall
include any co-paying agent chosen by the Property Trustee unless the context
requires otherwise.
SECTION V.11. Ownership of Common Securities by Depositor.
At the Closing Date, the Depositor shall acquire and retain beneficial and
record ownership of the Common Securities. Neither the Depositor nor any
successor Holder of the Common Securities may transfer less than all the Common
Securities, and the Depositor or any such successor Holder may transfer the
Common Securities only (i) in connection with a consolidation or merger of the
Depositor into another Person or any conveyance, transfer or lease by the
Depositor of its properties and assets substantially as an entirety to any
Person, pursuant to Section 8.1 of the Indenture, or (ii) to an Affiliate of the
Depositor in compliance with applicable law (including the Securities Act and
applicable state securities and blue sky laws). To the fullest extent permitted
by law, any attempted transfer of the Common Securities, other than as set forth
in the immediately preceding sentence, shall be void. The Administrators shall
cause each Common Securities Certificate issued to the Depositor to contain a
legend stating "THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT TO THE DEPOSITOR OR
AN AFFILIATE OF THE DEPOSITOR IN COMPLIANCE WITH APPLICABLE LAW AND SECTION 5.11
OF THE TRUST AGREEMENT."
SECTION V.12. Notices to Clearing Agency.
To the extent that a notice or other communication to the Holders is required
under this Trust Agreement, for so long as Capital Securities are represented by
a Global Capital Securities Certificate, the Administrators and the Issuer
Trustees shall give all such notices and communications specified herein to be
given to the Clearing Agency, and shall have no obligations to the Owners.
SECTION V.13. Rights of Holders.
(a) The legal title to the Trust Property is vested exclusively in the
Property Trustee (in its capacity as such) in accordance with Section 2.9, and
the Holders shall not have any right or title therein other than the undivided
beneficial ownership interest in the assets of the Issuer Trust conferred by
their Trust Securities and they shall have no right to call for any partition or
division of property, profits or rights of the Issuer Trust except as described
below. The Trust Securities shall be persona property giving only the rights
specifically set forth therein and in this Trust Agreement. The Trust Securities
shall have no preemptive or similar rights and when issued and delivered to
Holders against payment of the purchase price therefor, as provided herein, will
be fully paid and nonassessable by the Issuer Trust. Except as otherwise
provided in Section 4.8, the Holders of the Trust Securities, in their
capacities as such, shall be entitled to the same limitation of
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personal liability extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of Delaware.
(b) For so long as any Capital Securities remain Outstanding, if, upon a
Debenture Event of Default, the Debt Securities Trustee fails or the holders of
not less than 25% in principal amount of the outstanding Subordinated Debentures
fail to declare the principal of all of the Subordinated Debentures to be
immediately due and payable; the Holders of at least 25% in Liquidation Amount
of the Capital Securities then Outstanding shall have such right to make such
declaration by a notice in writing to the Property Trustee, the Depositor and
the Debt Securities Trustee.
At any time after such a declaration of acceleration with respect to the
Subordinated Debentures has been made and before a judgment or decree for
payment of the money due has been obtained by the Debt Securities Trustee as
provided in the Indenture, the Holders of a Majority in Liquidation Amount of
the Capital Securities, by written notice to the Property Trustee, the Depositor
and the Debt Securities Trustee, may rescind and annul such declaration and its
consequences if:
(i) the Depositor has paid or deposited with the Debt Securities Trustee a
sum sufficient to pay
(A) all overdue installments of interest on all of the Subordinated
Debentures,
(B) any accrued Additional Interest on all of the Subordinated
Debentures,
(C) the principal of (and premium, if any, on) any Subordinated
Debentures which have become due otherwise than by such declaration of
acceleration and interest and Additional Interest thereon at the rate borne
by the Subordinated Debentures, and
(D) all sums paid or advanced by the Debt Securities Trustee under
the Indenture and the reasonable compensation, expenses, disbursements and
advances of the Debt Securities Trustee and the Property Trustee, their
agents and counsel; and
(ii) all Events of Default with respect to the Subordinated Debentures,
other than the non-payment of the principal of the Subordinated Debentures
which has become due solely by such acceleration, have been cured or waived as
provided in Section 5.13 of the Indenture.
If the Property Trustee fails to annul any such declaration and waive such
default, the Holders of at least a Majority in Liquidation Amount of the Capital
Securities shall also have the right to rescind and annul such declaration and
its consequences by written notice to the Depositor, the Property
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33
Trustee and the Debt Securities Trustee, subject to the satisfaction of the
conditions set forth in Clause (i) and (ii) of this Section 5.13(b).
The Holders of at least a Majority in Liquidation Amount of the Capital
Securities may, on behalf of the Holders of all the Capital Securities, waive
any past default under the Indenture, except a default in the payment of
principal or interest (unless such default has been cured and a sum sufficient
to pay all matured installments of interest and principal due otherwise than by
acceleration has been deposited with the Debt Securities Trustee) or a default
in respect of a covenant or provision which under the Indenture cannot be
modified or amended without the consent of the holder of each outstanding
Subordinated Debentures. No such rescission shall affect any subsequent default
or impair any right consequent thereon.
Upon receipt by the Property Trustee of written notice declaring such an
acceleration, or rescission and annulment thereof, by Holders of the Capital
Securities all or part of which is represented by Global Capital Securities, a
record date shall be established for determining Holders of Outstanding Capital
Securities entitled to join in such notice, which record date shall be at the
close of business on the day the Property Trustee receives such notice. The
Holders on such record date, or their duly designated proxies, and only such
Persons, shall be entitled to join in such notice, whether or not such Holders
remain Holders after such record date: provided, that, unless such declaration
of acceleration, or rescission and annulment, as the case may be, shall have
become effective by virtue of the requisite percentage having joined in such
notice prior to the day which is 90 days after such record date, such notice of
declaration of acceleration, or rescission and annulment, as the case may be,
shall automatically and without further action by any Holder be canceled and of
no further effect. Nothing in this paragraph shall prevent a Holder, or a proxy
of a Holder, from giving, after expiration of such 90-day period, a new written
notice of declaration of acceleration, or rescission and annulment thereof, as
the case may be, that is identical to a written notice which has been canceled
pursuant to the proviso to the preceding sentence, in which event a new record
date shall be established pursuant to the provisions of this Section 5.13(b).
(c) For so long as any Capital Securities remain Outstanding, to the fullest
extent permitted by law and subject to the terms of this Trust Agreement and the
Indenture, upon a Debenture Event of Default specified in Section 5.01(a) or
5.01(b) of the Indenture, any Holder of Capital Securities shall have the right
to institute a proceeding directly against the Depositor, pursuant to Section
5.01 of the Indenture, for enforcement of payment to such Holder of the
principal amount of or interest on Subordinated Debentures having an aggregate
principal amount equal to the aggregate Liquidation Amount of the Capital
Securities of such Holder (a "Direct Action"). Except as set forth in Sections
5.13(b) and 5.13(c), the Holders of Capital Securities shall have no right to
exercise directly any right or
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remedy available to the holders of, or in respect of, the Subordinated
Debentures.
ARTICLE VI
ACTS OF HOLDERS; MEETINGS; VOTING
SECTION VI.1. Limitations on Holder's Voting Rights.
(a) Except as provided in this Trust Agreement and in the Indenture and as
otherwise required by law, no Holder of Capital Securities shall have any right
to vote or in any manner otherwise control the administration, operation and
management of the Issuer Trust or the obligations of the parties hereto, nor
shall anything herein set forth or contained in the terms of the Trust
Securities Certificates be construed so as to constitute the Holders from time
to time as members of an association.
(b) So long as any Subordinated Debentures are held by the Property Trustee
on behalf of the Issuer Trust, the Property Trustee shall nor (i) direct the
time, method and place of conducting any proceeding for any remedy available to
the Debt Securities Trustee, or executing any trust or power conferred on the
Property Trustee with respect to such Subordinated Debentures, (ii) waive any
past default that may be waived under Section 5.10 of the Indenture. (iii)
exercise any right to rescind or annul a declaration that the principal of all
the Subordinated Debentures shall be due and payable or (ii) consent to any
amendment, modification or termination of the Indenture or the Subordinated
Debentures, where such consent shall be required. without, in each case,
obtaining the prior approval of the Holders of at least a Majority in
Liquidation Amount of the Capital Securities, provided, however, that where a
consent under the Indenture would require the consent of each Holder of
Subordinated Debentures affected thereby, no such consent shall be given by the
Property Trustee without the prior written consent of each Holder of Capital
Securities. The Property Trustee shall not revoke any action previously
authorized or approved by a vote of the Holders of Capital Securities, except by
a subsequent vote of the Holders of Capital Securities. The Property Trustee
shall notify all Holders of the Capital Securities of any notice of default
received with respect to the Subordinated Debentures. In addition to obtaining
the foregoing approvals of the Holders of the Capital Securities, prior to
taking any of the foregoing actions, the Property Trustee shall, at the expense
of the Depositor, obtain an Opinion of Counsel experienced in such matters to
the effect that such action will not cause the Issuer Trust to be taxable as a
corporation for United States Federal income tax purposes.
(c) If any proposed amendment to the Trust Agreement provides for, or the
Issuer Trust otherwise proposes to effect, (i) any action that would adversely
affect in any material respect the interests, powers, preferences or special
rights of the Capital Securities, whether by way of amendment to the Trust
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35
Agreement or otherwise, or (ii) the dissolution, winding-up or termination of
the Issuer Trust, other than pursuant to the terms of this Trust Agreement, then
the Holders of Outstanding Capital Securities as a class will be entitled to
vote on such amendment or proposal and such amendment or proposal shall not be
effective except with the approval of the Holders of at least a Majority in
liquidation Amount of the Capital Securities.
SECTION VI.2. Notice of Meetings.
Notice of all meetings of the Holders, stating the time, place and purpose of
the meeting, shall be given by the Property Trustee pursuant to Section 10.8 to
each Holder of record, at his registered address, at least 15 days and not more
than 90 days before the meeting. At any such meeting, any business properly
before the meeting may be so considered whether or not stated in the notice of
the meeting. Any adjourned meeting may be held as adjourned without further
notice.
SECTION VI.3. Meetings of Holders.
No annual meeting of Holders is required to be held. The Property Trustee,
however, shall call a meeting of Holders to vote on any matter upon the written
request of the Holders of record of 25% of the aggregate Liquidation Amount of
the Capital Securities and the Administrators or the Property Trustee may, at
any time in their discretion, call a meeting of Holders of Capital Securities to
vote on any matters as to which Holders are entitled to vote.
Holders of at least a Majority in Liquidation Amount of the Capital
Securities, present in person or represented by proxy, shall constitute a quorum
at any meeting of Holders of the Capital Securities.
If a quorum is present at a meeting, an affirmative vote by the Holders of
record present, in person or by proxy, holding Capital Securities representing
at least a Majority in Liquidation Amount of the Capital Securities held by the
Holders present, either in person or by proxy, at such meeting shall constitute
the action of the Holders of Capital Securities, unless this Trust Agreement
requires a greater number of affirmative votes.
SECTION VI.4. Voting Rights.
Holders shall be entitled to one vote for each 525 of Liquidation Amount
represented by their Outstanding Trust Securities in respect of any matter as to
which such Holders are entitled to vote.
SECTION VI.5. Proxies, etc.
At any meeting of Holders, any Holder entitled to vote thereat may vote by
proxy, provided that no proxy shall be voted at any meeting unless it shall have
been placed on file with the
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Property Trustee, or with such other officer or agent of the Issuer Trust as the
Property Trustee may direct, for verification prior to the time at which such
vote shall be taken. Pursuant to a resolution of the Property Trustee, proxies
may be solicited in the name of the Property Trustee or one or more officers of
the Property Trustee. Only Holders of record shall be entitled to vote. When
Trust Securities are held jointly by several Persons, any one of them may vote
at any meeting in person or by proxy in respect of such Trust Securities, but if
more than one of them shall be present at such meeting in person or by proxy,
and such joint owners or their proxies so present disagree as to any vote to be
cast, such vote shall not be received in respect of such Trust Securities. A
proxy purporting to be executed by or on behalf of a Holder shall be deemed
valid unless challenged at or prior to its exercise, and the burden of proving
invalidity shall rest on the challenger. No proxy shall be valid more than three
years after its date of execution.
SECTION VI.6. Holder Action by Written Consent.
Any action which may be taken by Holders at a meeting may be taken without a
meeting if Holders holding at least a Majority in Liquidation Amount of all
Trust Securities entitled to vote in respect of such action (or such larger
proportion thereof as shall be required by any other provision of this Trust
Agreement) shall consent to the action in writing.
SECTION VI.7. Record Date for Voting and Other Purposes.
For the purposes of determining the Holders who are entitled to notice of and
to vote at any meeting or by written consent, or to participate in any
distribution on the Trust Securities in respect of which a record date is not
otherwise provided for in this Trust Agreement, or for the purpose of any other
action, the Administrators or Property Trustee may from time to time fix a date.
not more than 90 days prior to the date of any meeting of Holders or the payment
of a distribution or other action, as the case may be, as a record date for the
determination of the identity of the Holders of record for such purposes.
SECTION VI.8. Acts of Holders.
Any request, demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Trust Agreement to be given, made or
taken by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing; and, except as otherwise expressly provided herein, such
action shall become effective when such instrument or instruments are delivered
to the Property Trustee. Such instrument or instruments (and, the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of the Holders signing such instrument or instruments. Proof of execution
of any such instrument or of a
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writing appointing any such agent shall be sufficient for any purpose of this
Trust Agreement and (subject to Section 8.1) conclusive in favor of the issuer
trustees, if made in the manner provided in this Section.
The fact and date of the execution by any Person of any such instrument or
writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner which any Issuer Trustee or Administrator receiving the same deems
sufficient.
The ownership of Trust Securities shall be proved by the Securities Register.
Any request, demand, authorization, direction, notice, consent, waiver or
other Act of the Holder of any Trust Security shall bind every future Holder of
the same Trust Security and the Holder of every Trust Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Issuer Trustees,
the Administrators or the Issuer Trust in reliance thereon, whether or not
notation of such action is made upon such Trust Security.
Without limiting the foregoing, a Holder entitled hereunder to take any action
hereunder with regard to any particular Trust Security may do so with regard to
all or any part of the Liquidation Amount of such Trust Security or by one or
more duly appointed agents each of which may do so pursuant to such appointment
with regard to all or any part of such Liquidation Amount.
If any dispute shall arise among the Holders, the Administrators or the Issuer
Trustees with respect to the authenticity, validity or binding nature of any
request, demand, authorization, direction, consent, waiver or other Act of such
Holder or Issuer Trustee under this Article VI, then the determination of such
matter by the Property Trustee shall be conclusive with respect to such matter.
SECTION VI.9. Inspection of Records.
Upon reasonable notice to the Administrators and the Property Trustee, the
records of the Issuer Trust shall be open to inspection by Holders during normal
business hours for any purpose reasonably related to such Holder's interest as a
Holder.
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ARTICLE VII
REPRESENTATIONS AND WARRANTIES
SECTION VII.1. Representations and Warranties of the Property Trustee and the
Delaware Trustee.
The Property Trustee and the Delaware Trustee, each severally on behalf of and
as to itself, hereby represents and warrants for the benefit of the Depositor
and the Holders that:
(a) The Property Trustee is a banking corporation with trust powers, duly
organized, validly existing and in good standing under the laws of New York,
with trust power and authority to execute and deliver, and to carry out and
perform its obligations under the terms of this Trust Agreement.
(b) The execution, delivery and performance by the Property Trustee of this
Trust Agreement have been duly authorized by all necessary corporate action on
the part of the Property Trustee; and this Trust Agreement has been duly
executed and delivered by the Property Trustee, and constitutes a legal, valid
and binding obligation of the Property Trustee, enforceable against it in
accordance with its terms, subject to applicable bankruptcy, reorganization,
moratorium. insolvency, and other similar laws affecting creditors' rights
generally and to general principles of equity and the discretion of the court
(regardless of whether the enforcement of such remedies is considered in a
proceeding in equity or at law).
(c) The Delaware Trustee is duly organized, validly existing and in good
standing as a banking corporation under the laws of the State of Delaware,
with trust power and authority to execute and deliver, and to carry out and
perform its obligations under the terms of, the Trust Agreement.
(d) The execution, delivery and performance by the Delaware Trustee of this
Trust Agreement have been duly authorized by all necessary corporate action on
the part of the Delaware Trustee; and this Trust Agreement has been duly
executed and delivered by the Delaware Trustee, and constitutes a legal, valid
and binding obligation of the Delaware Trustee, enforceable against it in
accordance with its terms, subject to applicable bankruptcy, reorganization,
moratorium, insolvency, and other similar laws affecting creditors' right
generally and to general principles of equity and the discretion of the court
(regardless of whether the enforcement of such remedies is considered in a
proceeding in equity or at law).
(e) The Delaware Trustee is an entity which has its principal place of
business in the State of Delaware.
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(f) The Property Trustee is a national- or state-chartered bank and has
capital and surplus of at least $50,000,000.
SECTION VII.2. Representations and Warranties of Depositor.
The Depositor hereby represents and warrants for the benefit of the Holders
that:
(a) the Trust Securities Certificates issued at the Closing Due on behalf
of the Issuer Trust have been duly authorized and will have been duly and
validly executed, issued and delivered by the Issuer Trustees pursuant to the
terms and provisions of, and in accordance with the requirements of, this
Trust Agreement, and the Holders will be, as of each such date, entitled to
the benefits of this Trust Agreement; and
(b) there are no taxes, fees or other governmental charges payable by the
Issuer Trust (or the Issuer Trustees on behalf of the Issuer Trust) under the
laws of the State of Delaware or any political subdivision thereof in
connection with the execution, delivery and performance by either the Property
Trustee or the Delaware Trustee, as the case may be, of this Trust Agreement.
ARTICLE VIII
THE ISSUER TRUSTEES; THE ADMINISTRATORS
SECTION VIII.1. Certain Duties and Responsibilities.
(a) The duties and responsibilities of the Issuer Trustees and the
Administrators shall be as provided by this Trust Agreement and, in the case
of the Property Trustee, by the Trust Indenture Act. Notwithstanding the
foregoing, no provision of this Trust Agreement shall require the Issuer
Trustees or the Administrators to expend or risk their own funds or otherwise
incur any financial liability in the performance of any of their duties
hereunder, or in the exercise of any of their rights or powers, if they shall
have reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
Whether or not therein expressly so provided, every provision of this Trust
Agreement relating to the conduct or affecting the liability of or affording
protection to the Issuer Trustees or the Administrators shall be subject to
the provisions of this Section. Nothing in this Trust Agreement shall be
construed to release an Administrator from liability for its own grossly
negligent action, its own grossly negligent failure to act, or its own willful
misconduct. To the extent that, at law or in equity, an Issuer Trustee or
Administrator has duties and liabilities relating to the Issuer Trust or to
the Holders, such
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Issuer Trustee or Administrator shall not be liable to the Issuer Trust or to
any Holder for such Issuer Trustee's or Administrator's good faith reliance on
the provisions of this Trust Agreement. The provisions of this Trust
Agreement, to the extent that they restrict the duties and liabilities of the
Issuer Trustees and Administrators otherwise existing at law or in equity, are
agreed by the Depositor and the Holders to replace such other duties and
liabilities of the Issuer Trustees and Administrators.
(b) All payments made by the Property Trustee or a Paying Agent in respect
of the Trust Securities shall be made only from the revenue and proceeds from
the Trust Property and only to the extent that there shall be sufficient
revenue or proceeds from the Trust Property to enable the Property Trustee or
a Paying Agent to make payments in accordance with the terms hereof. Each
Holder, by its acceptance of a Trust Security, agrees that it will look solely
to the revenue and proceeds from the Trust Property to the extent legally
available for distribution to it as herein provided and that neither the
Issuer Trustees nor the Administrators are personally liable to it for any
amount distributable in respect of any Trust Security or for any other
liability in respect of any Trust Security. This Section 8.1(b) does not limit
the liability of the Issuer Trustees expressly set forth elsewhere in this
Trust Agreement of, in the case of the Property Trustee, in the Trust
Indenture Act.
(c) The Property Trustee, before the occurrence of any Event of Default and
after the curing of all Events of Default that may have occurred, shall
undertake to perform only such duties as are specifically set forth in this
Trust Agreement (including pursuant to Section 10.10), and no implied
covenants shall be read into this Trust Agreement against the Property
Trustee. If an Event of Default has occurred (that has not been cured or
waived pursuant to Article V of the Indenture), the Property Trustee shall
enforce this Trust Agreement for the benefit of the Holders and shall exercise
such of the rights and powers vested in it by this Trust Agreement, 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 Trust Agreement shall be construed to relieve the
Property Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(i) prior to the occurrence of any Event of Default and after the curing
or waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of the Property Trustee shall be
determined solely by the express provisions of this Trust Agreement
(including pursuant to Section 10.10), and the Property Trustee shall not
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be liable except for the performance of such duties and obligations as are
specifically set forth in this Trust Agreement (including pursuant to
Section 10.10): and
(B) in the absence of bad faith on the part of the Property Trustee,
the Property 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 Property Trustee and conforming
to the requirements of this Trust Agreement; but in the case of any such
certificates or opinions that by any provision hereof or of the Trust
Indenture Act are specifically required to be furnished to the Property
Trustee, the Property Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this Trust
Agreement;
(ii) the Property Trustee shall not be liable for any error of judgment
made in good faith by an authorized officer of the Property Trustee, unless it
shall be proved that the Property Trustee was negligent in ascertaining the
pertinent facts;
(iii) the Property 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 at least a Majority in Liquidation Amount of the
Capital Securities relating to the time, method and place of conducting any
proceeding for any remedy available to the Property Trustee, or exercising any
trust or power conferred upon the Property Trustee under this Trust Agreement;
(iv) the Property Trustee's sole duty with respect to the custody, safe
keeping and physical preservation of the Subordinated Debentures and the
Payment Account shall be to deal with such property in a similar manner as the
Property Trustee deals with similar property for its own account, subject to
the protections and limitations on liability afforded to the Property Trustee
under this Trust Agreement and the Trust Indenture Act:
(v) the Property Trustee shall not be liable for any interest on any
money received by it except as it may otherwise agree with the Depositor; and
money held by the Property Trustee need not be segregated from other funds
held by it except in relation to the Payment Account maintained by the
Property Trustee pursuant to Section 3.1 and except to the extent otherwise
required by law;
(vi) the Property Trustee shall not be responsible for monitoring the
compliance by the Administrators or the Depositor with their respective duties
under this Trust Agreement, nor shall the Property Trustee be liable for the
default or misconduct of any other Issuer Trustee, the Administrators or the
Depositor; and
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(vii) no provision of this Trust Agreement shall require the Property
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 Property Trustee shall have reasonable grounds
for believing that the repayment of such tends or liability is not reasonably
assured to it under the terms of this Trust Agreement or adequate indemnity
against such risk or liability is not reasonably assured to it.
(e) The Administrators shall not be responsible for monitoring the compliance
by the Issuer Trustees or the Depositor with their respective duties under this
Trust Agreement, nor shall either Administrator be liable for the default or
misconduct of any other Administrator, the Issuer Trustees or the Depositor.
SECTION VIII.2. Certain Notices.
Within ten Business Days after the occurrence of any Event of Default actually
known to a Responsible Officer of the Property Trustee, the Property Trustee
shall transmit, in the manner and to the extent provided in Section 10.8, notice
of such Event of Default to the Holders and the Administrators, unless such
Event of Default shall have been cured or waived.
Within ten Business Days after the receipt of notice of the Depositor's
exercise of its right to defer the payment of interest on the Subordinated
Debentures pursuant to the Indenture, the Property Trustee shall transmit, in
the manner and to the extent provided in Section 10.8, notice of such exercise
to the Holders and the Administrators, unless such exercise shall have been
revoked.
SECTION VIII.3. Certain Rights of Property Trustee.
Subject to the provisions of Section 8.1
(a) the Property Trustee may conclusively rely and shall be fully protected
in acting or retraining from acting in good faith upon any resolution, Opinion
of Counsel, certificate, written representation of a Holder or transferee,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond, debenture,
note, other evidence of indebtedness or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
(b) any direction or act of the Depositor contemplated by this Trust
Agreement shall be sufficiently evidenced by an Officer's Certificate;
(c) the Property Trustee shall have no duty to see to any recording, filing
or registration of any instrument (including any financing or continuation
statement or any filing
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under tax or securities laws) or any re-recording, refiling or registration
thereof;
(d) the Property Trustee may consult with counsel of its own choosing (which
counsel may be counsel to the Depositor or any of its Affiliates, and may
include any of its employees) and the advice of such counsel 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 reliance thereon and in accordance
with such advice, such counsel may be counsel to the Depositor or any of its
Affiliates, and may include any of its employees; the Property Trustee shall
have the right at any time to seek instructions concerning the administration of
this Trust Agreement from any court of competent jurisdiction;
(e) the Property Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Trust Agreement at the request or
direction of any of the Holders pursuant to this Trust Agreement, unless such
Holders shall have offered to the Property Trustee security or indemnity
satisfactory to it against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction; provided, that
nothing contained in this Section 8.3(e) shall be taken to relieve the Property
Trustee, upon the occurrence of an Event of Default, of its obligation to
exercise the rights and powers vested in it by this Trust Agreement;
(f) the Property Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond,
debenture, note or other evidence of indebtedness or other paper or document,
unless requested in writing to do so by one or more Holders, but the Property
Trustee may make such further inquiry or investigation into such facts or
matters as it may see fit;
(g) the Property Trustee may execute any of the trusts or powers hereunder or
perform any of its duties hereunder either directly or by or through its agents
or attorneys, provided that the Property 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;
(h) whenever in the administration of this Trust Agreement the Property
Trustee shall deem it desirable to receive instructions with respect to
enforcing any remedy or right or taking any other action hereunder, the Property
Trustee (i) may request instructions from the Holders (which instructions may
only be given by the Holders of the same proportion in Liquidation Amount of the
Trust Securities as would be entitled to direct the Property Trustee under the
terms of the Trust Securities in respect of such remedy, right or action), (ii)
may refrain from enforcing such remedy or right or taking such other action
until such instructions are received, and (iii) shall be fully protected in
acting in accordance with such instructions;
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(i) except as otherwise expressly provided by this Trust Agreement, the
Property Trustee shall not be under any obligation to take any action that is
discretionary under the provisions of this Trust Agreement. No provision of this
Trust Agreement shall be deemed to impose any duty or obligation on any Issuer
Trustee or Administrator 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 Property 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 any Issuer Trustee or Administrator shall be
construed to be a duty;
(j) if (i) in performing its duties under this Trust Agreement the Property
Trustee is required to decide between alternative courses of action or (ii) in
construing any of the provisions of this Trust Agreement the Property Trustee
finds the same ambiguous or inconsistent with any other provisions contained
herein or (iii) the Property Trustee is unsure of the application of any
provision of this Trust Agreement, then, except as to any matter as to which the
Holders are entitled to vote under the terms of this Trust Agreement, the
Property Trustee shall deliver a notice to the Depositor requesting written
instructions of the Depositor as to the course of action to be taken and the
Property Trustee shall take such action, or refrain from taking such action, as
the Property Trustee shall be instructed in writing to take, or to refrain from
taking, by the Depositor; provided, however, that if the Property Trustee does
not receive such instructions of the Depositor within ten Business Days after it
has delivered such notice, or such reasonably shorter period of time set forth
in such notice (which to the extent practicable shall not be less than two
Business Days), it may, but shall be under no duty to, take or refrain from
taking such action not inconsistent with this Trust Agreement as it shall deem
advisable and in the best interests of the Holders, in which event the Property
Trustee shall have no liability except for its own bad faith, negligence or
willful misconduct;
(k) whenever in the administration of this Trust Agreement, the Property
Trustee shall deem it desirable that a matter be established before undertaking,
suffering or omitting any action hereunder, the Property Trustee (unless other
evidence is herein specifically prescribed) may, in the absence of bad faith on
its part, request and conclusively rely upon an Officer's Certificate which,
upon receipt of such request, shall be promptly delivered by the Depositor or
the Administrator;
(l) when the Property Trustee incurs expenses or renders services in
connection with a Bankruptcy Event, such expenses (including the fees and
expenses of its counsel) and the compensation for such services are intended to
constitute expenses of administration under any bankruptcy law or law relating
to creditors rights generally; and
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(m) the Property Trustee shall not be charged with knowledge of an Event of
Default unless such Event of Default has occurred as a result of the Act or
failure to act of the Property Trustee, a Responsible Officer of the Property
Trustee obtains actual knowledge of such event or the Property Trustee receives
written notice of such event from Securityholders at least 25% of the
outstanding Trust Securities (based upon Liquidation Amount).
SECTION VIII.4. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Trust Securities Certificates shall
be taken as the statements of the Issuer Trust, and the Issuer Trustees and the
Administrators do not assume any responsibility for their correctness. The
Issuer Trustees and the Administrators shall not be accountable for the use or
application by the Depositor of the proceeds of the Subordinated Debentures.
SECTION VIII.5. May Hold Securities.
The Administrators, any Issuer Trustee or any other agent of any Issuer
Trustee or the Issuer Trust, in its individual or any other capacity, may become
the owner or pledgee of Trust Securities and, subject to Sections 8.8 and 8.13,
and except as provided in the definition of the term "Outstanding" in Article 1,
may otherwise deal with the Issuer Trust with the same rights it would have if
it were not an Administrator, issuer Trustee or such other agent.
SECTION VIII.6. Compensation; Indemnity; Fees.
The Depositor, as borrower, agrees:
(a) to pay to the Issuer Trustees from time to time such reasonable
compensation for all services rendered by them hereunder as the parties shall
agree from time to time (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust);
(b) to reimburse the Issuer Trustees upon request for all reasonable
expenses, disbursements and advances incurred or made by the Issuer Trustees in
accordance with any provision of this Trust Agreement (including the reasonable
compensation and the expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be attributable to their
negligence or willful misconduct; and
(c) to the fullest extent permitted by applicable law, to indemnify and hold
harmless (i) each Issuer Trustee, (ii) each Administrator, (iii) any Affiliate
of any Issuer Trustee, (iv) any officer, director, shareholder, employee,
representative or agent of any Issuer Trustee, and (v) any employee or agent of
the Issuer Trust, (referred to herein as an Indemnified Person") from and
against any loss, damage, liability, tax, penalty, expense or
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46
claim of any kind or nature whatsoever incurred by such Indemnified Person
arising out of or in connection with the creation, operation or dissolution of
the Issuer Trust or any act or omission performed or omitted by such Indemnified
Person in good faith on behalf of the Issuer Trust and in a manner such
Indemnified Person reasonably believed to be within the scope of authority
conferred on such Indemnified Person by this Trust Agreement, except that no
Indemnified Person (other than an Administrator) shall be entitled to be
indemnified in respect or any loss, damage or claim incurred by such Indemnified
Person by reason of negligence or willful misconduct with respect to such acts
or omissions, and further provided that no Administrator shall be entitled to be
indemnified in respect of any loss, damage or claim incurred by such
Administrator by reason of gross negligence or willful misconduct with respect
to such acts or omissions.
The provisions of this Section 8.6 shall survive the termination of this Trust
Agreement or the earlier resignation or removal of any Issuer Trustee.
No Issuer Trustee may claim any lien or charge on any Trust Property as a
result of any amount due pursuant to this Section 8.6.
The Depositor, any Administrator and any Issuer Trustee (subject to Section
8.8) may engage in or possess an interest in other business ventures of any
nature or description, independently or with others, similar, or dissimilar to
the business of the Issuer Trust, and the Issuer Trust and the Holders of Trust
Securities shall have no rights by virtue of this Trust Agreement in and to such
independent ventures or the income or profits derived therefrom, and the pursuit
of any such venture, even if competitive with the business of the Issuer Trust,
shall not be deemed wrongful or improper. Neither the Depositor, any
Administrator, nor any Issuer Trustee shall be obligated to present any
particular investment or other opportunity to the Issuer Trust even if such
opportunity is of a character that, if presented to the Issuer Trust, could be
taken by the Issuer Trust, and the Depositor, any Administrator or any Issuer
Trustee shall have the right to take for its own account (individually or as a
partner or fiduciary) or to recommend to others any such particular investment
or other opportunity. Any Issuer Trustee may engage or be interested in any
financial or other transaction with the Depositor or any Affiliate of the
Depositor, or may act as depository for, trustee or agent for, or act on any
committee or body of holders of, securities or other obligations of the
Depositor or its Affiliates.
In the event that the Property Trustee is also acting as Paying Agent or
Securities Registrar hereunder, the rights and protections afforded to the
Property Trustee pursuant to this Article VIII shall also be afforded to such
Paying Agent or Securities Registrar.
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SECTION VIII.7. Corporate Property Trustee Required: Eligibility of Trustees
and Administrators.
(a) There shall at all times be a Property Trustee hereunder with respect to
the Trust Securities. The Property Trustee shall be a Person that is a
national- or state-chartered bank and eligible pursuant to the Trust Indenture
Act to act as such and has a combined capital and surplus of at least
$50,000,000. If any such Person publishes reports of condition at least
annually, pursuant to law or to the requirements of its supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such Person shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
the Property Trustee with respect to the Trust Securities shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
(b) There shall at all times be one or more Administrators hereunder. Each
Administrator shall be either a natural person who is at least 21 years of age
or a legal entity that shall act through one or more persons authorized to bind
that entity. An employee, officer or Affiliate of the Depositor may serve as an
Administrator.
(c) There shall at all times be a Delaware Trustee. The Delaware Trustee
shall either be (i) a natural person who is at least 21 years of age and a
resident of the State of Delaware or (ii) a legal entity with its principal
place of business in the State of Delaware and that otherwise meets the
requirements of applicable Delaware law that shall act through one or more
persons authorized to bind such entity.
SECTION VIII.8. Conflicting Interests.
(a) If the Property Trustee has or shall acquire a conflicting interest
within the meaning of the Trust Indenture Act, the Property Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and this Trust
Agreement.
(b) The Guarantee Agreement and the Indenture shall be deemed to be
sufficiently described in this Trust Agreement for the purposes of clause (i) of
the first proviso contained in Section 310(b) of the Trust Indenture Act.
SECTION VIII.9. Co-Trustees and Separate Trustee.
Unless an Event of Default shall have occurred and be continuing, at anytime
or times, or the purpose of meeting the legal requirements of the Trust
Indenture Act or of any jurisdiction in which any part of the Trust Property may
at the time be located, the Property Trustee shall have power to appoint, and
upon the written request of the Property Trustee,
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the Depositor and the Administrators shall for such purpose join with the
Property of Trustee in the execution, delivery, and performance of all
instruments and agreements necessary or proper to appoint, one or more Persons
approved by the Property Trustee either to act as co-trustee, jointly with the
Property Trustee. of all or any part of such Trust Property, or to the extent
required by law to act as separate trustee of any such property, in either case
with such powers as may be provided in the instrument of appointment, and to
vest in such Person or Persons in the capacity aforesaid, any property, title,
right or power deemed necessary or desirable, subject to the other provisions of
this Section. Any co-trustee or separate trustee appointed pursuant to this
Section shall either be (i) a natural person who is at least 21 years of age and
a resident of the United States or (ii) a legal entity with its principal place
of business in the United States that shall act through one or more persons
authorized to bind such entity.
Should any written instrument from the Depositor be required by any co-trustee
or separate trustee so appointed for more fully confirming to such co-trustee or
separate trustee such property, title, right, or power, any and all such
instruments shall, on request, be executed, acknowledged and delivered by the
Depositor.
Every co-trustee or separate trustee shall, to the extent permitted by-law,
but to such extent only, be appointed subject to the following terms, namely:
(a) The Trust Securities shall be executed by one or more Administrators, and
the Trust Securities shall be authenticated by the manual signature of the
Property Trustee and delivered and all rights, powers, duties, and obligations
hereunder in respect of the custody of securities, cash and other personal
property held by, or required to be deposited or pledged with, the Property
Trustees specified hereunder, shall be exercised, solely by the Property Trustee
and not by such co-trustee or separate trustee.
(b) The rights, powers, duties, and obligations hereby conferred or imposed
upon the Property Trustee in respect of any property covered by such appointment
shall be conferred or imposed upon and exercised or performed by the Property
Trustee and such co-trustee or separate trustee jointly, as shall be provided in
the instrument appointing such co-trustee or separate trustee, except to the
extent that under any law of any jurisdiction in which any particular act is to
be performed, the Property Trustee shall be incompetent or unqualified to
perform such act, in which event such rights, powers, duties and obligations
shall be exercised and performed by such co-trustee or separate trustee.
(c) The Property Trustee at any time, by an instrument in writing executed by
it, with the written concurrence of the Depositor, may accept the resignation of
or remove any co-trustee or separate trustee appointed under this Section, and,
in case a
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Debenture Event of Default has occurred and is continuing, the Property Trustee
shall have power to accept the resignation of, or remove, any such co-trustee or
separate trustee without the concurrence of the Depositor. Upon the written
request of the Property Trustee, the Depositor shall join with the Property
Trustee in the execution, delivery and performance of all instruments and
agreements necessary or proper to effectuate such resignation or removal, A
successor to any co-trustee or separate trustee so resigned or removed may be
appointed in the manner provided in this Section.
(d) No co-trustee or separate trustee hereunder shall be personally liable by
reason of any act or omission of the Property Trustee or any other trustee
hereunder.
(e) The Property Trustee shall not be liable by reason of any act of a co-
trustee or separate trustee or any employees or agents of a co-trustee and
separate trustee nor shall it be liable for the supervision of a co-trustee or
separate trustee or employees or agents of a co-trustee and separate trustee.
(f) Any Act of Holders delivered to the Property Trustee shall be deemed to
have been delivered to each such co-trustee and separate trustee.
SECTION VIII.10. Resignation and Removal; Appointment of Successor.
No resignation or removal of any Issuer Trustee (the "Relevant Trustee") and
no appointment of a successor Issuer Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the successor Issuer
Trustee in accordance with the applicable requirements of Section 8.11.
Subject to the immediately preceding paragraph, a Relevant Trustee may resign
at any time by giving written notice thereof to the Holders. The Relevant
Trustee shall appoint a successor by requesting from at least three Persons
meeting the eligibility requirements its expenses and charges to serve as the
Relevant Trustee on a form provided by the Administrators, and selecting the
Person who agrees to the lowest expenses and charges. If the instrument of
acceptance by the successor Issuer Trustee required by Section 8.11 shall not
have been delivered to the Relevant Trustee within 60 days after the giving of
such notice of resignation, the Relevant Trustee may petition, at the expense of
the Issuer Trust, any court of competent jurisdiction for the appointment of a
successor Relevant Trustee.
The Property Trustee or the Delaware Trustee may be removed at any time by Act
of the Holders of at least a Majority in Liquidation Amount of the Capital
Securities, delivered to the Relevant Trustee (in its individual capacity and on
behalf of the Issuer Trust) (i) for cause, or (ii) if a Debenture Event of
Default shall have occurred and be continuing at any time. If the instrument of
such removal shall not have been delivered to the Relevant Trustee within 60
days after such Act, the Relevant
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Trustee may petition, at the expense of the Issuer Trust, any court of competent
jurisdiction for appointment of a successor Relevant Trustee.
If any Issuer Trustee shall resign, it shall appoint its successor. If a
resigning Issuer Trustee shall fail to appoint a successor, or if an Issuer
Trustee shall be removed or become incapable of acting as Issuer Trustee, or if
any vacancy shall occur in the office of any Issuer Trustee for any cause, the
Holders of the Capital Securities, by Act of the Holders of record of not less
than 25% in aggregate Liquidation Amount of the Capital Securities then
Outstanding delivered to such Relevant Trustee, shall promptly appoint a
successor Relevant Trustee or Trustees, and such successor Issuer Trustee shall
comply with the applicable requirements of Section 8.11. If no successor
Relevant Trustee shall have been so appointed by the Holders of the Capital
Securities and accepted appointment in the manner required by Section 8.11, any
Holder, on behalf of himself and all others similarly situated, or any other
Issuer Trustee, may petition any court of competent jurisdiction for the
appointment of a successor Relevant Trustee.
The Property Trustee shall give notice of each resignation and each removal of
an Issuer Trustee and each appointment of a successor Issuer Trustee to all
Holders in the manner provided in Section 10.8 and shall give notice to the
Depositor and to the Administrators. Each notice shall include the name of the
successor Relevant Trustee and the address of its Corporate Trust Office if it
is the Property Trustee.
Notwithstanding the foregoing or any other provision of this Trust Agreement,
in the event any Delaware Trustee who is a natural person dies or becomes, in
the opinion of the Holders of the Common Securities, incompetent or
incapacitated, the vacancy created by such death, incompetence or incapacity may
be filled by the Property Trustee following the procedures regarding expenses
and charges set forth above (with the successor in each case being a Person who
satisfies the eligibility requirements for Administrators or Delaware Trustee,
as the case may be, set forth in Section 8.7).
SECTION VIII.11. Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Relevant Trustee, the
retiring Relevant Trustee and each such successor Relevant Trustee with respect
to the Trust Securities shall execute, acknowledge and deliver an amendment
hereto wherein each successor Relevant Trustee shall accept such appointment and
which (a) shall contain such provisions as shall be necessary or desirable to
transfer and confirm to, and to vest in, each successor Relevant Trustee all the
rights, powers, trusts and duties of the retiring Relevant Trustee with respect
to the Trust Securities and the Issuer Trust, and (b) shall add to or change any
of the provisions of this Trust Agreement as shall be necessary to provide for
or facilitate the
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administration of the Issuer Trust by more than one Relevant Trustee and upon
the execution and delivery of such amendment the resignation or removal of the
retiring Relevant Trustee shall become effective to the extent provided therein
and each such successor Relevant Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Relevant Trustee; but, on request of the Issuer Trust or any
successor Relevant Trustee such retiring Relevant Trustee shall, upon payment of
its charges, duly assign, transfer and deliver to such successor Relevant
Trustee all Trust Property, all proceeds thereof and money held by such retiring
Relevant Trustee hereunder with respect to the Trust Securities and the Issuer
Trust.
Upon request of any such successor Relevant Trustee, the Issuer Trust shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Relevant Trustee all such rights, powers and trusts
referred to in the first or second preceding paragraph, as the case may be.
No successor Relevant Trustee shall accept its appointment unless at the time
of such acceptance such successor Relevant Trustee shall be qualified and
eligible under this Article.
SECTION VIII.12. Merger, Conversion, Consolidation or Succession to Business.
Any Person into which an Issuer Trustee may be merged or converted or with
which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which such Issuer Trustee shall be a party, or
any Person succeeding to all or substantially all the corporate trust business
of such Issuer Trustee, shall be the successor of such Issuer Trustee hereunder,
provided that such Person shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of' the parties hereto.
SECTION VIII.13. Preferential Collection of Claims Against Depositor or
Issuer Trust.
If and when the Property Trustee shall be or become a creditor of the
Depositor (or any other obliger upon the Trust Securities), the Property Trustee
shall be subject to the provisions of the Trust Indenture Act regarding the
collection of claims against the Depositor (or any such other obligor) as is
required by the Trust Indenture Act.
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SECTION VIII.14. Trustee May File Proofs of Claim.
In case of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other similar judicial
proceeding relative to the Issuer Trust or any other obliger upon the Trust
Securities or the property of the Issuer Trust or of such other obliger, the
Property Trustee (irrespective of whether any Distributions on the Trust
Securities shall then be due and payable and irrespective of whether the
Property Trustee shall have made any demand on the Issuer Trust for the payment
of any past due Distributions) shall be entitled and empowered, to the fullest
extent permitted by law, by intervention in such proceeding or otherwise.
(a) to file and prove a claim for the whole amount of any Distributions owing
and unpaid in respect of the Trust Securities and to file such other papers or
documents as may be necessary or advisable in order to have the claims of the
Property Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Property Trustee, its agents and counsel) and
of the Holders allowed in such judicial proceeding, and
(b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same; and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Holder to make such
payments to the Property Trustee and, in the event the Property Trustee shall
consent to the retaking of such payments directly to the Holders, to pay to the
Property Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Property Trustee, its agents and counsel, and
any other amounts due the Property Trustee.
Nothing herein contained shall be deemed to authorize the Property Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or compensation affecting the Trust
Securities or the rights of any Holder thereof or to authorize the Property
Trustee to vote in respect of the claim of any Holder in any such proceeding.
SECTION VIII.15. Reports by Property Trustee.
(a) Not later than ______ ____ of each year commencing with _______ ____,
1998, the Property Trustee shall provide to the Holders of the Trust Securities
such reports as are required by Section 313 of the Trust Indenture Act, if any,
in the form, in the manner and at the times provided by Section 313 of the Trust
Indenture Act. The Property Trustee shall also comply with the requirements of
Section 313(d) of the Trust Indenture Act.
(b) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Property Trustee with the Depositor.
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SECTION VIII.16. Reports to the Property Trustee.
Each of the Depositor and the Administrators on behalf of the Issuer Trust
shall provide to the Property Trustee, the Commission and the Holders of the
Trust Securities, as applicable, such documents, reports and information as
required by Section 314(a)(1)-(3) (if any) of the Trust Indenture Act and the
compliance certificates required by Section 314(a)(4) and (c) of the Trust
Indenture Act (provided that any certificate to be provided pursuant to Section
314(a)(4) of the Trust Indenture Act shall be provided within 120 days of the
end of each fiscal year of the Issuer Trust).
SECTION VIII.17. Evidence of Compliance with Conditions Precedent.
Each of the Depositor and the Administrators on behalf of the Issuer Trust
shall provide to the Property Trustee such evidence of compliance with any
conditions precedent, if any, provided for in this Trust Agreement which 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 pursuant to Section 314(c) shall
comply with Section 314(e) of the Trust Indenture Act.
SECTION VIII.18. Number of Issuer Trustees.
(a) The number of Issuer Trustees shall be two. The Property Trustee and the
Delaware Trustee may be the same Person, in which case the number of Issuer
Trustees may be one.
(b) If an Issuer Trustee ceases to hold office for any reason, a vacancy
shall occur. The vacancy shall be filled with an Issuer Trustee appointed in
accordance with Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy, dissolution,
termination, incompetence or incapacity to perform the duties of an Issuer
Trustee shall not operate to dissolve, terminate or annul the Issuer Trust or
terminate this Trust Agreement.
SECTION VIII.19. Delegation of Power.
(a) Any Administrator may, by power of attorney consistent with applicable
law, delegate to any other natural person over the age of 21 his or her power
for the purpose of executing any documents contemplated in Section 2.7(a) or
making any governmental filing; and
(b) The Administrators shall have power to delegate from time to time to such
of their number the doing of such things and the execution of such instruments
either in the name of the Issuer Trust or the names of the Administrators or
otherwise as the Administrators may deem expedient, to the extent such
delegation is not prohibited by applicable law or contrary
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to the provisions of this Trust Agreement.
SECTION VIII.20. Appointment of Administrators.
(a) The Administrators shall be appointed by the Holders of a Majority in
Liquidation Amount of the Common Securities and may be removed by the Holders of
a Majority in Liquidation Amount of the Common Securities or may resign at any
time. Upon any resignation or removal, the Depositor shall appoint a successor
Administrator. Each Administrator shall execute this Trust Agreement thereby
agreeing to comply with, and be legally bound by, all of the terms, conditions
and provisions of this Trust Agreement. If at any time there is no
Administrator, the Property Trustee or any Holder who has been a Holder of Trust
Securities for at least six months may petition any court of competent
jurisdiction for the appointment of one or more Administrators.
(b) Whenever a vacancy in the number of Administrators shall occur, until
such vacancy is filled by the appointment of an Administrator in accordance with
this Section 8.20, the Administrators in office, regardless of their number (and
notwithstanding any other provision of this Trust Agreement), shall have all the
powers granted to the Administrators and shall discharge all the duties imposed
upon the Administrators by this Trust Agreement.
(c) Notwithstanding the foregoing, or any other provision of this Trust
Agreement, in the event any Administrator or a Delaware Trustee who is a natural
person dies or becomes, in the opinion of the Holders of a Majority in
Liquidation Amount of the Common Securities, incompetent, or incapacitated, the
vacancy created by such death, incompetence or incapacity may be filled by the
remaining Administrators, if there were at least two of them prior to such
vacancy, and by the Depositor, if there were not two such Administrators
immediately prior to such vacancy (with the successor in each case being a
Person who satisfies the eligibility requirement for Administrators or Delaware
Trustee, as the case may be, set forth in Section 8.7).
ARTICLE IX
DISSOLUTION, LIQUIDATION AND MERGER
SECTION IX.1. Dissolution Upon Expiration Date.
Unless earlier dissolved, the Issuer Trust shall automatically dissolve on
______ ___, _____ (the "Expiration Date"), and thereafter the Trust Property
shall be distributed in accordance with Section 9.4.
SECTION IX.2. Early Termination.
The first to occur of any of the following events is an "Early Termination
Event" and the occurrence of which shall cause
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the dissolution of the Issuer Trust:
(a) the occurrence of the appointment of a receiver or other similar official
in any liquidation, insolvency or similar proceeding with respect to the
Depositor or all or substantially all of its property, or a court or other
governmental agency shall enter a decree or order and such decree or order shall
remain unstayed and undischarged for a period of 60 days, unless the Depositor
shall transfer the Common Securities as provided by Section 5.11, in which case
this provision shall refer instead to any such successor Holder of the Common
Securities;
(b) the written direction to the Property Trustee from the Holder of the
Common Securities at any time to dissolve the Issuer Trust and to distribute a
Like Amount of the Subordinated Debentures to Holders in exchange for the
Capital Securities (which direction, subject to Section 9.4(a), is optional and
wholly within the discretion of the Holders of the Common Securities);
(c) the redemption of all of the Capital Securities in connection with the
redemption of all the Subordinated Debentures; and
(d) the entry of an order for dissolution of the Issuer Trust by a court of
competent jurisdiction.
SECTION IX.3. Termination.
As soon as is practicable after the occurrence of an event referred to in
Section 9.1 or 9.2, and upon the completion of the winding up and liquidation of
the Issuer Trust, the Administrators and the Issuer Trustees (each of whom is
hereby authorized to take such action) shall file a certificate of cancellation
with the Secretary of State of the State of Delaware terminating the Trust and,
upon such filing, the respective obligations and responsibilities of the Issuer
Trustees, the Administrators and the Issuer Trust shall terminate.
SECTION IX.4. Liquidation.
(a) If an Early Termination Event specified in clause (a), (b) or (d) of
Section 9.2 occurs or upon the Expiration Date, the Issuer Trust shall be wound
up and liquidated by the Property Trustee as expeditiously as the Property
Trustee determines to be possible by distributing, after paying or making
reasonable provision to pay all claims and obligations of the Issuer Trust in
accordance with Section 3808(e) of the Delaware Business Trust Act, to each
Holder a Like Amount of Subordinated Debentures, subject to Section 9.4(d).
Notice of liquidation shall be given by the Property Trustee by first-class
mail, postage prepaid, mailed not later than 15 nor more than 45 days prior to
the Liquidation Date to each Holder of Trust Securities at such Holder's address
appearing in the Securities Register. All notices of liquidation shall:
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(i) state the Liquidation Date:
(ii) state that, from and after the Liquidation Date, the Trust Securities
will no longer be deemed to be Outstanding and any Trust Securities
Certificates not surrendered for exchange will be deemed to represent a Like
Amount of Subordinated Debentures: and
(iii) provide such information with respect to the mechanics by which Holders
may exchange Trust Securities Certificates for Subordinated Debentures, or if
Section 9.4(d) applies receive a Liquidation Distribution, as the
Administrators or the Property Trustee shall deem appropriate.
(b) Except where Section 9.2(c) or 9.4(d) applies, in order to effect the
liquidation of the Issuer Trust and distribution of the Subordinated Debentures
to Holders, the Property Trustee shall establish a record date for such
distribution (which shall be not more than 30 days prior to the Liquidation
Date) and, either itself acting as exchange agent or through the appointment of
a separate exchange agent, shall establish such procedures as it shall deem
appropriate to effect the distribution of Subordinated Debentures in exchange
for the Outstanding Trust Securities Certificates.
(c) Except where Section 9.2(c) or 9.4(d) applies, after the Liquidation
Date, (i) the Capital Securities will no longer be deemed to be Outstanding,
(ii) the Clearing Agency for the Capital Securities or its nominee, as the
registered holder of the Global Capital Securities Certificate, shall receive a
registered global certificate or certificates representing the Subordinated
Debentures to be delivered upon such distribution with respect to Capital
Securities held by the Clearing Agency or its nominee, and, (iii) any Capital
Securities Certificates not held by the Clearing Agency for the Capital
Securities or its nominee as specified in clause (ii) above will be deemed to
represent Subordinated Debentures having a principal amount equal to the stated
Liquidation Amount of the Capital Securities represented thereby and bearing
accrued and unpaid interest in an amount equal to the accumulated and unpaid
Distributions on such Capital Securities until such certificates are presented
to the Securities Registrar for transfer or reissuance.
(d) If, notwithstanding the other provisions of this Section 9.4, whether
because of an order for dissolution entered by a court of competent jurisdiction
or otherwise, distribution of the Subordinated Debentures is not practical, or
if any Early Termination Event specified in clause (c) of Section 9.2 occurs,
the Issuer Trust shall be dissolved and wound up and the Trust Property shall be
liquidated by the Property Trustee, in such manner as the Property Trustee
determines. In such event, on the date of the dissolution of the Issuer Trust,
unless the Trust Securities have been redeemed or are to be redeemed on such
date pursuant to Article IV, Holders will be entitled to receive out of the
assets of the Issuer Trust available for distribution to
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Holders, after paying or making reasonable provision to pay all claims and
obligations of the Issuer Trust in accordance with Section 3808(e) of the
Delaware Business Trust Act, an amount equal to the aggregate of Liquidation
Amount per Trust Security plus accumulated and unpaid Distributions thereon to
the date of payment (such amount being the "Liquidation Distribution"). If, upon
any such dissolution, the Liquidation Distribution can be paid only in part
because the Issuer Trust has insufficient assets available to pay in full the
aggregate Liquidation Distribution, then, subject to the next succeeding
sentence, the amounts payable by the Issuer Trust on the Trust Securities shall
be paid on a pro rata basis (based upon Liquidation Amounts). The Holders of the
Common Securities will be emitted to receive Liquidation Distributions upon any
such dissolution pro rata (determined as aforesaid) with Holders of Capital
Securities, except that, if a Debenture Event of Default has occurred and is
continuing as a result of any failure by the Company to pay any amounts in
respect of Subordinated Debentures when due, the Capital Securities shall have a
priority over the Common Securities as provided in Section 4.3.
SECTION IX.5. Mergers, Consolidations, Amalgamations or Replacements of the
Issuer Trust.
The Issuer Trust may not merge with or into, consolidate, amalgamate, or be
replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to, any entity, except pursuant to this Section 9.5
or Section 9.4. At the request of the Holders of the Common Securities, and
with the consent of the Holders of at least a Majority in Liquidation Amount of
the Capital Securities, the Issuer Trust may merge, with or into, consolidate,
amalgamate, or be replaced by or convey, transfer or lease its properties and
asset substantially as an entirety to a trust organized as such under the laws
of any State; provided, however, that (i) such successor entity either (a)
expressly assumes all of the obligations of the Issuer Trust with respect to the
Capital Securities or (b) substitutes for the Capital Securities other
securities having substantially the same terms as the Capital Securities (the
"Successor Securities") so long as the Successor Securities have the same
priority as the Capital Securities with respect to distributions and payments
upon liquidation, redemption and otherwise, (ii) a trustee of such successor
entity possessing the same powers and duties as the Property Trustee is
appointed to hold the Subordinated Debentures, (iii) such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not cause the
Capital Securities (including any Successor Securities) to be downgraded by any
nationally recognized statistical rating organization, (iv) such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease does not
adversely affect the rights, preferences and privileges of the holders of the
Capital Securities (including any Successor Securities) in any material respect,
(v) such successor entity has a purpose substantially identical to that of the
Issuer Trust, (vi) prior to such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, the
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Issuer Trustee has received an Opinion of Counsel from independent counsel
experienced in such matters to the effect that (a) such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not adversely
affect the rights preferences and privileges of the holders of the Capital
Securities (including any Successor Securities) in any material respect, and (b)
following such merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease, neither the Issuer Trust nor such successor entity will be
required to register as an "investment company" under the Investment Company Act
and (vii) the Depositor or any permitted transferee to whom it has transferred
the Common Securities hereunder own all of the common securities of such
successor entity and guarantees the obligations of such successor entity under
the Successor Securities at least to the extent provided by the Guarantee
Agreement. Notwithstanding the foregoing, the Issuer Trust shall not, except
with the consent of holders of 100% in Liquidation Amount of the Capital
Securities, consolidate, amalgamate, merge with or into, or be replaced by or
convey, transfer or lease its properties and assets substantially as an entirety
to any other entity or permit any other entity to consolidate, amalgamate, merge
with or into, or replace it if such consolidation, amalgamation, merger,
replacement, conveyance, transfer or lease would cause the Issuer Trust or the
successor entity to be taxable as a corporation for United States Federal income
tax purposes.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION X.1. Limitation of Rights of Holders.
Except as set forth in Section 9.2, the death, incapacity, dissolution,
termination or bankruptcy of any Person having an interest, beneficial or
otherwise, in Trust Securities shall not operate to terminate this Trust
Agreement, nor dissolve or terminate the Issuer Trust, nor entitle the legal
representatives, successors or heirs of such Person or any Holder for such
Person, to claim an accounting, take any action or bring any proceeding in any
court for a partition or winding-up of the arrangements contemplated hereby, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them. Any merger or similar agreement authorized in accordance with
this Trust Agreement shall be executed by one or more of the Administrators on
behalf of the Issuer Trust.
SECTION X.2. Amendment.
(a) This Trust Agreement may be amended from time to time by the Property
Trustee and the Holders of a Majority in Liquidation Amount of the Common
Securities. without the consent of any Holder of the Capital Securities (i) to
cure any ambiguity, correct or supplement any provision herein which may be
inconsistent with any other provision herein, or to make any
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other provisions with respect to matters or questions arising under this Trust
Agreement, provided, however, that such amendment shall not adversely affect in
any material respect the interests of any Holder or (ii) to modify, eliminate or
add to any provisions of this Trust Agreement to such extent as shall be
necessary to ensure that the Issuer Trust will not be taxable as a corporation
for United States Federal income tax purposes at any time that any Trust
Securities are Outstanding or to ensure that the Issuer Trust will not be
required to register as an investment company under the Investment Company Act.
(b) Except as provided in Section 10.2(c) hereof, any provision of this Trust
Agreement may be amended by the Property Trustee and the Holders of a Majority
in Liquidation Amount of the Common Securities with (i) the consent of Holders
of at least a Majority in Liquidation Amount of the Capital Securities and (ii)
receipt by the issuer Trustees of an Opinion of Counsel to the effect that such
amendment or the exercise of any power granted to the Issuer Trustees in
accordance with such amendment will not cause the Issuer Trust to be taxable as
a corporation for United States federal income tax purposes or affect the Issuer
Trust's exemption from status of an "investment company" under the Investment
Company Act.
(c) In addition to and notwithstanding any other provision in this Trust
Agreement, without the consent of each affected Holder, this Trust Agreement may
not be amended to (i) change the amount or timing of any Distribution on the
Trust Securities or otherwise adversely affect the amount of any Distribution
required to be made in respect of the Trust Securities as of a specified date or
(ii) restrict the right of a Holder to institute suit for the enforcement of any
such payment on or after such date.
(d) Notwithstanding any other provisions of this Trust Agreement, no Issuer
Trustee shall enter into or consent to any amendment to this Trust Agreement
which would cause the Issuer Trust to fail or cease to qualify for the exemption
from status as an "investment company" under the Investment Company Act or be
taxable as a corporation for United States Federal income tax purposes.
(e) Notwithstanding anything in this Trust Agreement to the contrary, without
the consent of the Depositor and the Administrators, this Trust Agreement may
not be amended in a manner which imposes any additional obligation on the
Depositor or the Administrators.
(f) In the event that any amendment to this Trust Agreement is made, the
Administrators or the Property Trustee shall promptly provide to the Depositor a
copy of such amendment.
(g) Neither the Property Trustee nor the Delaware Trustee shall be required
to enter into any amendment to this Trust Agreement which affects its own
rights, duties or impurities under this Trust Agreement. The Property Trustee
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shall be entitled to receive an Opinion of Counsel and an Officer's Certificate
stating that any amendment to this Trust Agreement is in compliance with this
Trust Agreement.
(h) Any amendments to this Trust Agreement, pursuant to Section 10.2(a),
shall become effective when notice of such amendment is given to the Holders of
the Trust Securities.
(i) Notwithstanding any other provision of this Trust Agreement, no amendment
to this Trust Agreement may be made if, as a result of such amendment, it would
cause the Issuer Trust to be taxable as a corporation for United States Federal
income tax purposes.
SECTION X.3. Separability.
In case any provision in this Trust Agreement or in the Trust Securities
Certificates shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
SECTION X.4. Governing Law.
THIS TRUST AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF EACH OF THE HOLDERS,
THE ISSUER TRUST, THE DEPOSITOR, THE ISSUER TRUSTEES AND THE ADMINISTRATORS
SHALL GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
DELAWARE AND ALL RIGHTS AND REMEDIES SHALL BE GOVERNED BY SUCH LAWS WITHOUT
REGARD TO THE PRINCIPLES OF CONFLICT OF LAWS OF THE STATE OF DELAWARE OR ANY
OTHER JURISDICTION THAT WOULD CALL FOR THE APPLICATION OF THE LAW OF ANY
JURISDICTION OTHER THAN THE STATE OF DELAWARE; PROVIDED, HOWEVER, THAT THERE
SHALL NOT BE APPLICABLE TO THE HOLDERS, THE ISSUER TRUST, THE DEPOSITOR, THE
ISSUER TRUSTEES, THE ADMINISTRATORS OR THIS TRUST AGREEMENT ANY PROVISION OF THE
LAWS (STATUTORY OR COMMON) OF THE STATE OF DELAWARE PERTAINING TO TRUSTS THAT
RELATE TO OR REGULATE, IN A MANNER INCONSISTENT WITH THE TERMS HEREOF (A) THE
FILING WITH ANY COURT OR GOVERNMENTAL BODY OR AGENCY OF TRUSTEE ACCOUNTS OR
SCHEDULES OF TRUSTEE FEES AND CHARGES, (B) AFFIRMATIVE REQUIREMENTS TO POST
BONDS FOR TRUSTEES, OFFICERS, AGENTS OR EMPLOYEES OF A TRUST, (C) THE NECESSITY
FOR OBTAINING COURT OR OTHER GOVERNMENTAL APPROVAL CONCERNING THE ACQUISITION,
HOLDING OR DISPOSITION OF REAL OR PERSONAL PROPERTY, (D) FEES OR OTHER SUMS
PAYABLE TO TRUSTEES, OFFICERS, AGENTS OR EMPLOYEES OF A TRUST, (E) THE
ALLOCATION OF RECEIPTS AND EXPENDITURES TO INCOME OR PRINCIPAL, (F) RESTRICTIONS
OR LIMITATIONS ON THE PERMISSIBLE NATURE, AMOUNT OR CONCENTRATION OF TRUST
INVESTMENTS OR REQUIREMENTS RELATING TO THE TITLING, STORAGE OR OTHER MANNER OF
HOLDING OR INVESTING TRUST ASSETS OR (G) THE ESTABLISHMENT OF FIDUCIARY OR OTHER
STANDARDS OF RESPONSIBILITY OR LIMITATIONS ON THE ACTS OR POWERS OF TRUSTEES
THAT ARE INCONSISTENT WITH THE LIMITATIONS OR LIABILITIES OR AUTHORITIES AND
POWERS OF THE ISSUER TRUSTEES OR THE ADMINISTRATORS AS SET FORTH OR REFERENCED
IN THIS TRUST AGREEMENT. SECTION 3540 OF TITLE 12 OF THE DELAWARE CODE SHALL
NOT APPLY TO THE ISSUER TRUST.
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SECTION X.5. Payments Due on Non-Business Day.
If the date fixed for any payment on any Trust Security shall be a day that is
not a Business Day, then such payment need not be made on such date but may be
made on the next succeeding day that is a Business Day, with the same force and
effect as though made on the date fixed for such payment, and no Distributions
shall accumulate on such unpaid amount for the period after such date.
SECTION X.6. Successors.
This Trust Agreement shall be binding upon and shall inure to the benefit of
any successor to the Depositor, the Issuer Trust, the Administrators and any
Issuer Trustee, including any successor by operation of law. Except in
connection with a consolidation, merger or sale involving the Depositor that is
permitted under Article VIII of the Indenture and pursuant to which the assignee
agrees in writing to perform the Depositor's obligations hereunder, the
Depositor shall not assign its obligations hereunder.
SECTION X.7. Headings.
The Article and Section headings are for convenience only and shall not affect
the construction of this Trust Agreement.
SECTION X.8. Reports, Notices and Demands.
Any report, notice, demand or other communication that by any provision of
this Trust Agreement is required or permitted to be given or served to or upon
any Holder or the Depositor may be given or served in writing by deposit
thereof, first class postage prepaid, in the United States mail, hand delivery
or facsimile transmission, in each case, addressed, (a) in the case of a Holder
of Capital Securities, to such Holder as such Holder's name and address may
appear on the Securities Register; and (b) in the case of the Holder of Common
Securities or the Depositor, to Dillard's, Inc., 1600 Cantrell Road, Little
Rock, Arkansas 72201, Attention: Office of the Secretary, facsimile no.: (501)
376-_______ or to such other address as may be specified in a written notice by
the Depositor to the Property Trustee. Such notice, demand or other
communication to or upon a Holder shall be deemed to have been sufficiently
given or made, for all purposes, upon hand delivery. mailing or transmission.
Such notice, demand or other communication to or upon the Depositor shall be
deemed to have been sufficiently given or made only upon actual receipt of the
writing by the Depositor.
Any notice, demand or other communication which any provision of this Trust
Agreement is required or permitted to be given or served to or upon the Property
Trustee, the Delaware Trustee, the Administrators, or the Issuer Trust shall be
given in writing addressed (until another address is published by the
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Issuer Trust) as follows: (a) with respect to the Property Trustee to The Chase
Manhattan Bank, 450 West 33rd Street, New York, New York 10001, Attention:
Corporate Trust Administration; (b) with respect to the Delaware Trustee to
Chase Manhattan Bank Delaware, 1201 Market Street, Wilmington, Delaware 19801,
Attention: Corporate Trust Administration; and (c) with respect to the
Administrators, to them at the address above for notices to the Depositor,
marked "Attention" Office of the Secretary". Such notice, demand or other
communication to or upon the Issuer Trust, the Property Trustee or the
Administrators shall be deemed to have been sufficiently given or made only upon
actual receipt of the writing by the Issuer Trust, the Property Trustee, or such
Administrator.
SECTION X.9. Agreement Not to Petition.
Each of the issuer Trustees, the Administrators and the Depositor agree for
the benefit of the Holders that, until at least one year and one day after the
Issuer Trust has been terminated in accordance with Article IX, they shall not
file, or join in the filing of, a petition against the Issuer Trust under any
bankruptcy, insolvency, reorganization or other similar law (including, without
limitation, the United States Bankruptcy Code) (collectively, "Bankruptcy Laws")
or otherwise join in the commencement of any proceeding against the Issuer Trust
under any Bankruptcy Law. In the event the Depositor takes action in violation
of this Section 10.9, the Property Trustee agrees, for the benefit of Holders,
that at the expense or the Depositor, it shall file an answer with the
bankruptcy court or otherwise properly contest the filing of such petition by
the Depositor against the Issuer Trust or the commencement of such action and
raise the defense that the Depositor has agreed in writing not to take such
action and should be estopped and precluded therefrom and such other defenses,
if any, as counsel for the Issuer Trustee or the Issuer Trust may assert. If
any Issuer Trustee or Administrator takes action in violation of this Section
10.9, the Depositor agrees, for the benefit of the Holders, that at the expense
of the Depositor, it shall file an answer with the bankruptcy court or otherwise
properly contest the filing of such petition by such Person against the
Depositor or the commencement of such action and raise the defense that such
Person has agreed in writing not to take such action and should be estopped and
precluded therefrom and such other defenses, if any, as counsel for the Issuer
Trustee or the Issuer Trust may assert. The provisions of this Section 10.9
shall survive the termination of this Trust Agreement.
SECTION X.10. Trust Indenture, Act; Conflict with Trust Indenture Act.
(a) Trust Indenture Act; Application. (i) This Trust Agreement is subject to
the provisions of the Trust Indenture Act that are required to be a part of this
Trust Agreement and shall, to the extent applicable, be governed by such
provisions; (ii) if and to the extent that any provision of this Trust Agreement
limits, qualities or conflicts with the duties imposed by
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Sections 310 to 317, inclusive, of the Trust Indenture Act, such imposed duties
shall control; (iii) for purposes of this Trust Agreement, the Property Trustee,
to the extent permitted by applicable law and/or the rules and regulations of
the Commission, shall be the only Issuer Trustee which is a trustee for the
purposes of the Trust Indenture Act; and (iv) the application of the Trust
Indenture Act to this Trust Agreement shall not affect the nature of the Capital
Securities and the Common Securities as equity securities representing undivided
beneficial interests in the assets of the Issuer Trust.
(b) Lists of Holders of Capital Securities. (i) Each of the Depositor and
the Administrators on behalf of the Trust shall provide the Property Trustee
with such information as is required under Section 312(a) of the Trust Indenture
Act at the times and in the manner provided in Section 312(a) and (ii) the
Property Trustee shall comply with its obligations under Sections 310(b), 311
and 312(b)of the Trust Indenture Act.
(c) Disclosure of Information. The disclosure of information as to the names
and addresses of the Holders of Trust Securities in accordance with Section 312
of the Trust Indenture Act, regardless of the source from which such information
was derived, shall not be deemed to be a violation of any existing law or any
law hereafter enacted which does not specifically refer to Section 312 of the
Trust Indenture Act, nor shall the Property Trustee be held accountable by
reason of mailing any material pursuant to a request made under Section 312(b)
of the Trust Indenture Act.
SECTION X.11. Acceptance of Terms of Trust Agreement, Guarantee and
Indenture.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN BY OR
ON BEHALF OF A HOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY SIGNATURE OR FURTHER
MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL ACCEPTANCE BY THE
HOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN SUCH TRUST SECURITY OF ALL
THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT, THE GUARANTEE AGREEMENT AND
THE INDENTURE, AND THE AGREEMENT TO THE SUBORDINATION PROVISIONS AND OTHER TERMS
OF THE GUARANTEE AGREEMENT AND THE INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT
OF THE ISSUER TRUST, SUCH HOLDER AND SUCH OTHERS THAT THE TERMS AND PROVISIONS
OF THIS TRUST AGREEMENT SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE
ISSUER TRUST AND SUCH HOLDER AND SUCH OTHERS.
SECTION X.12. Counterparts.
This instrument may be executed in any number or counterparts, each of which
so executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
DILLARD'S, INC.
as Depositor
<PAGE>
64
By:
--------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
as Property Trustee, and
not in its individual capacity
By:
--------------------------------
Name:
Title:
CHASE MANHATTAN BANK DELAWARE,
as Delaware Trustee, and not
in its individual capacity
By:
--------------------------------
Name:
Title:
-----------------------------------
Name:
Title: Administrator
-----------------------------------
Name:
Title: Administrator
<PAGE>
Exhibit A
CERTIFICATE OF TRUST
<PAGE>
EXHIBIT C
THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT TO THE
DEPOSITOR OR AN AFFILIATE OF THE DEPOSITOR IN COMPLIANCE
WITH APPLICABLE LAW AND SECTION 5.11 OF THE TRUST AGREEMENT
Certificate Number: C-____
Number of Common Securities: _________
CERTIFICATE EVIDENCING COMMON SECURITIES
OF
DILLARD'S CAPITAL TRUST ___
_____% COMMON SECURITIES
(LIQUIDATION AMOUNT $___ PER COMMON SECURITY)
Dillard's Capital Trust ___, a statutory business trust created under the laws
of the State of Delaware (the "Issuer Trust"), hereby certifies that Dillard's,
Inc. (the "Holder") is the registered owner of ______________ (_________) common
securities of the Issuer Trust representing undivided beneficial interests in
assets of the Issuer Trust and designated the _____% Common Securities
(liquidation amount $___ per Common Security) (the "Common Securities"). Except
in accordance with Section 5.11 of the Trust Agreement (as defined below) the
Common Securities are not transferable and any attempted transfer hereof other
than in privileges, restrictions, preferences and other terms and provisions of
the Common Securities are set forth in, and this Certificate and the Common
Securities represented hereby are issued and shall in all respects be subject to
the terms and provisions of, the Amended and Restated Trust Agreement of the
Issuer Trust, dated as of _______ ____, 1998, as the same may be amended from
time to time (the "Trust Agreement") among Dillard's, Inc., as Depositor, The
Chase Manhattan Bank, as Property Trustee, Chase Manhattan Bank Delaware, as
Delaware Trustee, two individuals selected by the holders of the Common
Securities to act as administrators with respect to the Issuer Trust (the
"Administrators") and the holders of Trust Securities, including the designation
of the terms of the Common Securities as set forth herein. The Holder is
entitled to the benefits of a Guarantee Agreement entered into by Dillard's,
Inc., dated as of ______ ___, 1998 (the "Guarantee Agreement"), to the extent
provided therein. The Issuer Trust will furnish a copy of the Trust Agreement
and the Guarantee Agreement to the Holder without charge upon written request to
the Issuer Trust at its principal place of business or registered office.
Upon receipt of this Certificate, the Holder is bound by the Trust Agreement
and is entitled to the benefits thereunder.
Terms used but not defined herein have the meanings set forth in the Trust
Agreement.
IN WITNESS WHEREOF, one of the Administrators of the Issuer Trust has executed
this Certificate this _____ day of ______, 1998.
DILLARD'S CAPITAL TRUST ___
By:
------------------------------
Name:
xi
<PAGE>
EXHIBIT D
THIS CAPITAL SECURITIES CERTIFICATE IS A GLOBAL CAPITAL SECURITIES
CERTIFICATE WITHIN THE MEANING OF THE TRUST AGREEMENT HEREINAFTER REFERRED TO
AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY.
THIS CAPITAL SECURITY CERTIFICATE IS EXCHANGEABLE FOR CAPITAL SECURITIES
CERTIFICATES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS
NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE TRUST AGREEMENT AND
MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OF ANOTHER
NOMINEE OF THE DEPOSITARY, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
TRUST AGREEMENT.
UNLESS THIS CAPITAL SECURITY CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
TO DILLARD'S CAPITAL TRUST ___ OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CAPITAL SECURITY CERTIFICATE ISSUED IS REGISTERED
IN THE NAME OF SUCH NOMINEE AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC (AND ANY PAYMENT IS MADE TO SUCH ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO A PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF,
HAS AN INTEREST HEREIN.
NO EMPLOYEE BENEFIT OR OTHER PLAN OR INDIVIDUAL RETIREMENT ACCOUNT
SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (THE "CODE") (EACH, A "PLAN"), NO ENTITY WHOSE UNDERLYING ASSETS INCLUDE
"PLAN ASSETS" BY REASON OF ANY PLAN'S INVESTMENT IN THE ENTITY (A "PLAN ASSET
ENTITY"), AND NO PERSON INVESTING "PLAN ASSETS" OF ANY PLAN, MAY ACQUIRE OR HOLD
THIS CAPITAL SECURITIES CERTIFICATE OR ANY INTEREST HEREIN, UNLESS SUCH PURCHASE
AND HOLDING IS COVERED BY THE EXEMPTIVE RELIEF AVAILABLE UNDER U.S. DEPARTMENT
OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION ("PTCE") 96-23, 95-60, 91-38,
90-1 OR 84-14 OR ANOTHER APPLICABLE EXEMPTION WITH RESPECT TO SUCH PURCHASE AND
HOLDING AND, IN THE CASE OF ANY PURCHASER OR HOLDER RELYING ON ANY EXEMPTION
OTHER THAN PTCE 96-23, 95-60, 91-38, 90-1 OR 84-14, HAS COMPLIED WITH ANY
REQUEST BY THE DEPOSITOR OR THE ISSUER TRUST FOR AN OPINION OF COUNSEL OR OTHER
EVIDENCE WITH RESPECT TO THE APPLICABILITY OF SUCH EXEMPTION. ANY PURCHASER OR
HOLDER OF THE CAPITAL SECURITIES CERTIFICATE OR ANY INTEREST THEREIN WILL BE
DEEMED TO HAVE REPRESENTED BY ITS PURCHASE AND HOLDING HEREOF THAT EITHER (A)
THE PURCHASER AND HOLDER ARE NOT A PLAN OR A PLAN ASSET ENTITY AND IS NOT
PURCHASING SUCH SECURITIES ON BEHALF OF OR WITH "PLAN ASSETS" OF ANY PLAN, OR
(B) THE PURCHASE AND HOLDING OF THE CAPITAL SECURITIES IS COVERED BY THE
EXEMPTIVE RELIEF PROVIDED BY PTCE 96-23, 95-60, 91-38, 90-1 OR 84-14
vi
<PAGE>
OR ANOTHER APPLICABLE EXEMPTION.
vii
<PAGE>
CERTIFICATE NUMBER: C-___ CUSIP NO. ___________
___________ CAPITAL SECURITIES
CERTIFICATE EVIDENCING CAPITAL SECURITIES OF
DILLARD'S CAPITAL TRUST ___
____% CAPITAL SECURITIES
(LIQUIDATION AMOUNT $___ PER CAPITAL SECURITY)
Dillard's Capital Trust ___, a statutory business trust created under
the laws of the State of Delaware (the "Issuer Trust"), hereby certifies that
Cede & Co. (the "Holder") is the registered owner of $__________ in aggregate
liquidation amount of capital securities of the Issuer Trust representing a
preferred undivided beneficial interest in the assets of the Issuer Trust and
designated the Dillard's Capital Trust ___ ____% Capital Securities (liquidation
amount $___ per Capital Security) (the "Capital Securities"). The Capital
Securities are transferable on the books and records of the Issuer Trust, in
person or by a duly authorized attorney, upon surrender of this certificate duly
endorsed and in proper form for transfer as provided in Section 5.5 of the Trust
Agreement (as defined below). The designations, rights, privileges,
restrictions, preferences and other terms and provisions of the Capital
Securities are set forth in, and this certificate and the Capital Securities
represented hereby are issued and shall in all respects be subject to the terms
and provisions of the Amended and Restated Trust Agreement of the Issuer Trust,
dated as of ________ ____, 1998, as the same may be amended from time to time
(the "Trust Agreement"), among Dillard's, Inc, as Depositor, The Chase Manhattan
Bank, as Property Trustee, Chase Manhattan Bank Delaware, as Delaware Trustee,
two individuals selected by the holders of the Common Securities to act as
administrators with respect to the Issuer Trust (the "Administrators") and the
Holders of Trust Securities, including the designation of the terms of the
Capital Securities as set forth therein. The Holder is entitled to the benefits
of the Guarantee Agreement entered into by Dillard's, Inc., a Delaware
corporation, and The Chase Manhattan Bank, as Guarantee Trustee, dated as of
_______ ___, 1998 (the "Guarantee Agreement"), to the extent provided therein.
The Issuer Trust will furnish a copy of the Trust Agreement and the Guarantee
Agreement to the Holder without charge upon written request to the Issuer Trust
at its principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
viii
<PAGE>
Terms used but not defined herein have the meanings set forth in the
Trust Agreement.
IN WITNESS WHEREOF, one of the Administrators of the Issuer Trust has
executed this certificate this _____ day of _______, 1998.
DILLARD'S CAPITAL TRUST ____
By:_________________________________
Name:
Title:
AUTHENTICATED, COUNTERSIGNED AND REGISTERED:
The Chase Manhattan Bank, as Property Trustee
By:________________________________________
Name:
Title:
Dated:_____________________________________
ix
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Capital
Security to:
- --------------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
- --------------------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
--------------------------------------------------------
agent to transfer this Capital Security Certificate on the books of the Issuer
Trust. The agent may substitute another to act for him or her.
Date:_______________________ Signature:
------------------------------
(Sign exactly as your name
appears on the other side of
this Capital Security
Certificate)
Signature Guarantee:
--------------------
SIGNATURE GUARANTEE
Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Property Trustee, which requirements include membership or
participation in the Security Transfer Agent medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the Property Trustee
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
x
<PAGE>
EXHIBIT E
(FORM OF EXPENSE AGREEMENT)
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT AS TO EXPENSES AND LIABILITIES, dated as of _______________, 1998,
between Dillard's, Inc., a Delaware corporation, as Depositor (the "Depositor")
and Dillard's Capital Trust ____, a Delaware business trust (the "Issuer
Trust").
WHEREAS, the Issuer Trust intends to issue its Common Securities (the "Common
Securities") to and acquire Debentures from the Depositor, and to issue and sell
___% Capital Securities, (the "Capital Securities") with such powers,
preferences and special rights and restrictions as are set forth in the Amended
and Restated Trust Agreement of the Issuer Trust, dated as of ____________ __,
1998, among Dillard's, Inc., as Depositor, The Chase Manhattan Bank, as Property
Trustee, Chase Manhattan Bank of Delaware, as Delaware Trustee, two individuals
selected by the holders of the Common Securities to act as administrators with
respect to the Issuer Trust (the "Administrators") and the holders of Trust
Securities, as the same may be amended from time to time (the "Trust
Agreement");
WHEREAS, the Depositor will own all of the Common Securities of the Trust;
WHEREAS, capitalized terms used but not defined herein have the meanings set
forth in the Trust Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
ARTICLE 1
SECTION 1.1 Guarantee by the Depositor. Subject to the terms and conditions
hereof, the Depositor hereby irrevocably and unconditionally guarantees to each
person or entity to whom the Issuer Trust is now or hereafter becomes indebted
or liable (the "Beneficiaries") the full payment, when and as due, of any and
all Obligations (as hereinafter defined) to such Beneficiaries. As used herein,
"Obligations" means any costs, expenses or liabilities of the Issuer Trust,
other than obligations of the Issuer Trust to pay to holders of any Trust
Securities the amounts due such holders pursuant to the terms of the Trust
Securities. This Agreement is intended to be for the benefit of, and to be
enforceable by, all such Beneficiaries, whether or not such Beneficiaries have
received notice hereof.
xii
<PAGE>
SECTION 1.2 Subordination of Guarantee. The guarantee and other liabilities
and obligations of the Depositor under this Agreement shall constitute unsecured
obligations of the Depositor and shall rank subordinate and junior in right of
payment to all Senior Indebtedness (as defined is the Indenture) of the
Depositor to the extent and in the manner set forth in the Indenture with
respect to the Debentures, and the provisions of Article XIII of the Indenture
will apply, mutatis mutandis, to the obligations of the Depositor hereunder.
The obligations of the Depositor hereunder do not constitute Senior Indebtedness
(as defined in the Indenture) of the Depositor.
SECTION 1.3 Term of Agreement. This Agreement shall terminate and be of
further force and effect upon the dissolution of the Issuer Trust, provided,
however, that this Agreement shall continue to be effective or shall be
reinstated, as the case may be, if at any time any holder of Capital Securities
or any Beneficiary must restore payment of any sums paid under the Capital
Securities, under any Obligation, under the Guarantee Agreement dated the date
hereof by the Depositor and The Chase Manhattan Bank, as guarantee trustee, or
under this Agreement for any reason whatsoever. This Agreement is continuing,
irrevocable, unconditional and absolute.
SECTION 1.4 Waiver of Notice. The Depositor hereby waives notice of
acceptance of this Agreement and of any Obligation to which it applies or may
apply, and the Depositor hereby waives presentment, demand for payment, protest,
notice of nonpayment, notice of dishonor, notice of redemption and all other
notices and demands.
SECTION 1.5 No Impairment. The obligations, covenants, agreements and duties
of the Depositor under this Agreement shall in no way be affected or impaired by
reason of the happening from time to time of any of the following:
(a) the extension of time for the payment by the Issuer Trust of all or any
portion of the Obligations or for the performance of any other obligation under,
arising out of, or in connection with, the Obligations;
(b) any failure, omission, delay or lack of diligence on the part of the
Beneficiaries to enforce, assert or exercise any right, privilege, power or
remedy conferred on the Beneficiaries with respect to the Obligations or any
action on the part of the Issuer Trust granting indulgence or extension of any
kind; or
(c) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting, the Issuer Trust or any of the assets of
the Issuer Trust (other than the dissolution of the Issuer Trust in accordance
with the terms thereof).
There shall be no obligation of the Beneficiaries to give notice to, or obtain
the consent of, the Depositor with respect to the happening or say of the
foregoing.
SECTION 1.6 Enforcement. A Beneficiary may enforce this Agreement directly
against the Depositor and the Depositor waives any right or remedy to require
that any action be
xiii
<PAGE>
bought against the Issuer Trust or any other person or entity before proceeding
against the Depositor.
xiv
<PAGE>
SECTION 1.7 Subrogation. The Depositor shall be subrogated to all rights (if
any) of any Beneficiary against the Issuer Trust in respect of any amounts paid
to the Beneficiaries by the Depositor under this Agreement; provided, however,
that the Depositor shall not (except to the extent required by mandatory
provisions of law) be entitled to enforce or exercise any rights 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 Agreement, if, at the
time of any such payment, any amounts are due and unpaid under this Agreement or
any payments are due to the holders of Capital Securities under the Trust
Agreement.
ARTICLE II
SECTION 2.1 Assignment. This Agreement may not be assigned by either party
hereto without the consent of the other, and any purported assignment without
such consent shall be void, except that upon any transfer of the Common
Securities, this Agreement shall be assigned and delegated by the Depositor to
its successor with such transfer without any action by either party hereto.
SECTION 2.2. Binding Effect. All guarantees and agreements contained in this
Agreement shall bind the successors, assigns, receivers, trustees and
representatives of the Depositor and shall inure to the benefit of the
Beneficiaries.
SECTION 2.3 Amendment. So long as there remains any Beneficiary or any
Capital Securities are outstanding, this Agreement shall not be modified or
amended in any manner adverse to such Beneficiary or to the holders of the
Capital Securities without the consent of such Beneficiary or the holders of the
Capital Securities, as the case may be.
SECTION 2.4 Notices. Any notice, request or other communication required or
permitted to be give hereunder shall be given in writing by delivering the same
against receipt therefor by facsimile transmission (confirmed by mail), telex or
by registered or certified mail, addressed as follows (and if so given, shall be
deemed given when mailed or upon receipt of as answer-back, if sent by telex):
Dillard's Capital Trust ____
The Chase Manhattan Bank
450 West 33rd Street
New York, New York 10001
Facsimile No.: (212) 946-8161
Attention: Corporate Trust Administration
With a copy to:
Dillard's, Inc.
1600 Cantrell Road
xv
<PAGE>
Little Rock, Arkansas 72701
Facsimile No.: (501) 376-____
Attention: Office of the Secretary
SECTION 2.5. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
THIS AGREEMENT is executed as of the day and year first above written.
DILLARD'S, INC.
By: __________________________
Name:
Title:
DILLARD'S CAPITAL TRUST ____
By: __________________________
Name:
Title:
xvi
<PAGE>
EXHIBIT 4-q
==================================================
DILLARD'S, INC.
TO
THE CHASE MANHATTAN BANK
Trustee
__________
THIRD SUPPLEMENTAL
INDENTURE
Dated as of ______________, 1998
==================================================
<PAGE>
THIRD SUPPLEMENTAL INDENTURE, dated as of _____________, 1998 between
Dillard's, Inc., a corporation duly organized and existing under the laws of the
State of Delaware (herein called the "Company"), having its principal office at
1600 Cantrell Road, Little Rock, Arkansas 72201 and The Chase Manhattan Bank
(formerly known as Chemical Bank), a banking corporation duly organized and
existing under the laws of the State of New York, as trustee under the Indenture
referred to below (herein called the "Trustee").
RECITALS OF THE COMPANY
WHEREAS, the Company has heretofore executed and delivered to the Trustee a
certain indenture, dated as of May 15, 1988 (as amended and supplemental through
the date hereof, the "Indenture"), pursuant to which one or more series of
unsecured debentures, notes or other evidences of indebtedness of the Company
(herein called the "Securities") may be issued from time to time. All terms
used in this Third Supplemental Indenture which are defined in the Indenture
shall have the meanings assigned to them in the Indenture;
WHEREAS, Section 901(9) of the Indenture provides that without the consent
of any Holders, the Company, when authorized by a Board Resolution, and the
Trustee, at any time and from time to time, may entered into an indenture
supplemental to the Indenture to cure any ambiguity, to correct or supplement
any provision therein which may be inconsistent with any other provision
therein, or to make any other provisions with respect to matters or questions
arising under this Indenture; provided, such action shall not adversely affect
the interest of the holders of Securities of any series in any material respect;
WHEREAS, the Company pursuant to the foregoing authority, proposes in and
by this Third Supplemental Indenture to amend the Indenture in certain respects
with respect to the Securities of any series created on or after the date
hereof; and
WHEREAS, all thing necessary to make this Third Supplemental Indenture a
valid agreement of the Company and the Trustee and a valid amendment of and
supplement to the Indenture have been done.
NOW, THEREFORE, THIS THIRD SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities or of any series thereof,
with respect to Securities of any series issued after the date hereof as
follows:
-1-
<PAGE>
ARTICLE ONE
AMENDMENTS TO THE INDENTURE
SECTION 1.1 Amendments to Section 501. Section 501(5) is amended to read
as follows:
(5)(a) a default under any bond, debenture, note or other evidence of
indebtedness for money borrowed by the Company or any of its Subsidiaries
(including a default with respect to Securities of any series other than that
series) or under any mortgage, indenture or instrument under which there may be
issued or by which there may be secured or evidenced any indebtedness for money
borrowed by the Company or any of its Subsidiaries (including this Indenture) in
an aggregate principal amount exceeding $20,000,000, whether such indebtedness
now exists or shall hereafter be created, which default shall have resulted in
such indebtedness becoming or being declared due and payable prior to the date
on which it would otherwise have become due and payable, without such
acceleration having been rescinded or annulled, within a period of 10 days after
there shall have been given, by registered or certified mail, to the Company by
the Trustee or to the Company and the Trustee by the Holders of at least 25% in
principal amount of the Outstanding Securities of that series a written notice
specifying such default and requiring the Company to cause such acceleration to
be rescinded or annulled and stating that such notice is a "Notice of Default"
hereunder; or (b) the Company or any of its Subsidiaries fails to pay any
indebtedness under any bond, debenture, note or other evidence of indebtedness
for money borrowed by the Company or any of its Subsidiaries (including a
default with respect to Securities of any series other than that series) or
under any mortgage, indenture or instrument under which there may be issued or
by which there may be secured or evidenced any indebtedness for money borrowed
by the Company or any of its Subsidiaries (including this Indenture) in an
aggregate principal amount exceeding $20,000,000, whether such indebtedness now
exists or shall hereafter be created, at the later of final maturity or upon
expiration of any applicable period of grace with respect to such principal
amount, and such failure to pay shall not have been cured by the Company or any
of its Subsidiaries within 30 days after such failure; provided, however, that,
subject to the provisions of Sections 601 and 602, the Trustee shall not be
deemed to have knowledge of such default or failure unless either (A) a
Responsible Officer of the Trustee in its Corporate Trust Office shall have
actual knowledge of such default or failure or (B) the Trustee shall have
received written notice thereof at its Corporate Trust Office from the Company,
from any Holder, from the holder of any such indebtedness or from the trustee
under any such mortgage, indenture or other instrument.
SECTION 1.2 Amendments to Section 502. Section 502 is amended to read as
follows:
If an Event of Default (other than an Event of Default specified in Section
501(6) or Section 501(7)) with respect to Securities of any series at the time
Outstanding occurs and is continuing, then in every such case the Trustee or the
Holders of not less than 25% in principal amount of the Outstanding Securities
of that series may declare the principal amount (or if any of the Securities of
that series are Original Issue Discount Securities, such portion of the
principal amount of such Securities as may be specified in the terms thereof) of
all of the Securities of that series to be due and payable immediately, by a
notice in writing to the Company (and to the Trustee if given by Holders),
-2-
<PAGE>
and upon any such declaration such principal amount (or specified amount) shall
become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series had been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of
that series which have become due otherwise than by such declaration
of acceleration and interest thereon at the rate or rates prescribed
therefor in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed
therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that series,
other than the non-payment of the principal of Securities of that series
which have become due solely by such declaration of acceleration, have been
cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
If an Event of Default specified in Section 501(6) or 501(7) occurs, the
principal amount (or, if any of the Securities of that series are Original Issue
Discount Securities, such portion of the principal amount of such Securities as
may be specified in the terms thereof) of all Securities then outstanding shall
ipso facto become and be immediately due and payable without any declaration or
other act on the part of the Trustee or any Holder.
-3-
<PAGE>
ARTICLE TWO
MISCELLANEOUS
SECTION 2.1 Incorporation of Indenture. All the provisions of this Third
Supplemental Indenture shall be deemed to be incorporated in, and made a part
of, the Indenture; and the Indenture, as supplemented and amended by this Third
Supplemental Indenture, shall be read, taken and construed as one and the same
instrument.
SECTION 2.2 Application of Third Supplemental Indenture. The provisions
and benefit of this Third Supplemental Indenture shall not be effective with
respect to Securities Outstanding prior to the execution hereof.
SECTION 2.3 Headings. The headings of the Articles and Sections of this
Third Supplemental Indenture are inserted for convenience of reference and shall
not be deemed to be a part thereof.
SECTION 2.4 Counterparts. This Third Supplemental Indenture may be
executed in any number of counterparts, each of which so executed shall be
deemed to be an original, but all such counterparts shall together constitute
but one and the same instrument.
SECTION 2.5 Conflict of Trust Indenture Act. If any provision hereof
limits, qualifies, or conflicts with a provision of the Trust Indenture Act that
is required under said Act to be a part of and govern this Third Supplemental
Indenture, such required provision shall control.
SECTION 2.6 Successors and Assigns. All covenants and agreements in this
Third Supplemental Indenture by the Company shall bind its successors and
assigns, whether so expressed or not.
SECTION 2.7 Separability Clause. In case any provision in this Third
Supplemental Indenture shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 2.8 Benefits of Third Supplemental Indenture. Nothing in this
Third Supplemental Indenture, express or implied, shall give to any person,
other than the parties hereto and their successors hereunder and the Holders,
any benefit or any legal or equitable right, remedy or claim under this Third
Supplemental Indenture.
-4-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have cause this Third Supp lemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
DILLARD'S, INC.
By: ______________________________________
Title:
[CORPORATE SEAL]
ATTEST:
___________________________
Title:
THE CHASE MANHATTAN BANK, AS TRUSTEE
By: ______________________________________
Title:
[CORPORATE SEAL]
ATTEST:
___________________________
Title:
-5-
<PAGE>
STATE OF ARKANSAS )
)ss
COUNTY OF PULASKI )
On the ____ day of ___________, 1998, before me personally came
________________, to me known, who, being by me duly sworn, did depose and say
that he is __________________ of DILLARD'S, INC., one of the corporations
described in and which executed the foregoing instrument; that he knows the seal
of said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation; and that he signed his named thereto by like authority.
___________________________________
Notary Public
[NOTARY SEAL]
My Commission Expires:
_____________________
STATE OF NEW YORK )
)ss
COUNTY OF NEW YORK )
On the ____ day of ___________, 1998, before me personally came
________________, to me known, who, being by me duly sworn, did depose and say
that he is __________________ of THE CHASE MANHATTAN BANK, one of the
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation; and that he signed his named thereto by like
authority.
___________________________________
Notary Public
[NOTARY SEAL]
My Commission Expires:
_____________________
-6-
<PAGE>
EXHIBIT 4-r
===============================================================================
DILLARD'S, INC.
TO
THE CHASE MANHATTAN BANK
Trustee
_____________________________
SUBORDINATED INDENTURE
Dated as of _________ __, 1998
===============================================================================
<PAGE>
DILLARD'S, INC.
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939 AND
INDENTURE, DATED AS OF _______ ___, 1998
TRUSTEE INDENTURE
ACT SECTION INDENTURE SECTION
<TABLE>
<CAPTION>
<S> <C>
(S)310 (a)(1) ........................................ 609
(a)(2) ........................................ 609
(a)(3) ........................................ Not Applicable
(a)(4) ........................................ Not Applicable
(b) ........................................ 608
....................................... 610
(S)311 (a) ........................................ 613(a)
(b) ........................................ 613(b)
(b)(2) ........................................ 703(a)(2)
....................................... 703(b)
(S)312 (a) ........................................ 701
....................................... 702(a)
(b) ........................................ 702(b)
(c) ........................................ 702(c)
(S)313 (a) ........................................ 703(a)
(b) ........................................ 703(b)
(c) ........................................ 703(a), 703(b)
(d) ........................................ 703(c)
(S)314 (a) ........................................ 704
(b) ........................................ Not Applicable
(c)(1) ........................................ 102
(c)(2) ........................................ 102
(c)(3) ........................................ Not Applicable
(d) ........................................ Not Applicable
(e) ........................................ 102
(S)315 (a) ........................................ 601(a)
(b) ........................................ 602
....................................... 703(a)(6)
(c) ........................................ 601(b)
(d) ........................................ 601(c)
(d)(1) ........................................ 601(a)(1)
(d)(2) ........................................ 601(c)(2)
(d)(3) ........................................ 601(c)(3)
(e) ........................................ 514
(S)316 (a) ........................................ 101
(a)(1)(A) ....................................... 502
....................................... 512
(a)(1)(B) ....................................... 513
(a)(2) ........................................ Not Applicable
(b) ........................................ 508
(S)317 (a)(1) ........................................ 503
(a)(2) ........................................ 504
(b) ........................................ 1003
(S)318 (a) ........................................ 107
</TABLE>
- ------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
<PAGE>
TABLE OF CONTENTS
-----------------
Page
----
Parties...................................................... 1
Recitals of the Company...................................... 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION..................................... 1
SECTION 101. Definitions............................. 1
Act..................................... 2
Affiliate............................... 2
Authenticating Agent.................... 2
Board of Directors...................... 2
Board Resolution........................ 2
Business Day............................ 2
Capital Securities...................... 2
Capital Securities Guarantee............ 2
Commission.............................. 3
Common Securities....................... 3
Common Securities Guarantee............. 3
Company................................. 3
Company Request......................... 3
Company Order........................... 3
Corporate Trust Office.................. 3
corporation............................. 3
Defaulted Interest...................... 3
Dillard's Capital Trust................. 3
Direct Action........................... 4
Event of Default........................ 4
Foreign Currency........................ 4
Foreign Government Securities........... 4
Guarantor............................... 4
Holder.................................. 4
Indebtedness............................ 4
Indenture............................... 5
interest................................ 5
Interest Payment Date................... 5
Market Exchange Rate.................... 5
Maturity................................ 5
Officers' Certificate................... 6
Opinion of Counsel...................... 6
Original Issue Discount Security........ 6
Paying Agent............................ 7
Person.................................. 7
Place of Payment........................ 7
Predecessor Security.................... 7
Redemption Date......................... 7
Redemption Price........................ 8
Regular Record Date..................... 8
-i-
<PAGE>
Page
----
Responsible Officer..................... 8
Securities.............................. 8
Security Register....................... 8
Security Registrar...................... 8
Senior Indenture........................ 8
Senior Indebtedness..................... 8
Special Record Date..................... 9
Stated Maturity......................... 9
Subsidiary.............................. 9
Trustee................................. 9
Trust Agreement......................... 9
Trust Indenture Act..................... 9
Trust Securities........................ 9
Trust Securities Guarantee.............. 9
U.S. Government Obligations............. 10
Vice President.......................... 10
SECTION 102. Compliance Certificates and Opinions.... 10
SECTION 103. Form of Documents Delivered to Trustee.. 11
SECTION 104. Acts of Holders......................... 11
SECTION 105. Notices, Etc., to Trustee and Company... 12
SECTION 106. Notice to Holders; Waiver............... 13
SECTION 107. Conflict with Trust Indenture Act....... 13
SECTION 108. Effect of Headings and Table of Contents 13
SECTION 109. Successors and Assigns.................. 13
SECTION 110. Separability Clause..................... 13
SECTION 111. Benefits of Indenture................... 14
SECTION 112. Governing Law........................... 14
SECTION 113. Legal Holidays.......................... 14
ARTICLE TWO
SECURITY FORMS............................................... 14
SECTION 201. Forms Generally......................... 14
SECTION 202. Form of Trustee's Certificate
of Authentication....................... 15
ARTICLE THREE
THE SECURITIES............................................... 15
SECTION 301. Amount Unlimited; Issuable in Series.... 15
SECTION 302. Denominations........................... 18
SECTION 303. Execution, Authentication,
Delivery and Dating..................... 18
SECTION 304. Temporary Securities.................... 20
SECTION 305. Registration, Registration of
Transfer and Exchange................... 23
SECTION 306. Mutilated, Destroyed, Lost and
Stolen Securities....................... 24
-ii-
<PAGE>
Page
----
SECTION 307. Payment of Interest; Interest
Rights Preserved........................ 25
SECTION 308. Persons Deemed Owners................... 26
SECTION 309. Cancellation............................ 27
SECTION 310. Computation of Interest................. 27
SECTION 311. Judgments............................... 27
ARTICLE FOUR
SATISFACTION AND DISCHARGE................................... 28
SECTION 401. Satisfaction and Discharge
of Indenture............................ 28
SECTION 402. Application of Trust Funds;
Indemnification......................... 29
SECTION 403. Satisfaction, Discharge and
Defeasance of Securities of
any Series.............................. 30
ARTICLE FIVE
REMEDIES..................................................... 32
SECTION 501. Events of Default....................... 32
SECTION 502. Acceleration of Maturity;
Rescission and Annulment................ 34
SECTION 503. Collection of Indebtedness and
Suits for Enforcement by Trustee........ 36
SECTION 504. Trustee May File Proofs of Claim........ 37
SECTION 505. Trustee May Enforce Claims Without
Possession of Securities................ 38
SECTION 506. Application of Money Collected.......... 38
SECTION 507. Limitation on Suits..................... 39
SECTION 508. Unconditional Right of Holders to
Receive Principal Premium
and Interest............................ 39
SECTION 509. Restoration of Rights and Remedies...... 40
SECTION 510. Rights and Remedies Cumulative.......... 40
SECTION 511. Delay or Omission Not Waiver............ 40
SECTION 512. Control by Holders...................... 40
SECTION 513. Waiver of Past Defaults................. 41
SECTION 514. Undertaking for Costs................... 41
SECTION 515. Waiver of Stay or Extension Laws........ 42
ARTICLE SIX
THE TRUSTEE.................................................. 42
SECTION 601. Certain Duties and Responsibilities..... 42
SECTION 602. Notice of Defaults...................... 43
SECTION 603. Certain Rights of Trustee............... 44
SECTION 604. Not Responsible for Recitals or
Issuance of Securities.................. 45
-iii-
<PAGE>
Page
----
SECTION 605. May Hold Securities..................... 45
SECTION 606. Money Held in Trust..................... 45
SECTION 607. Compensation and Reimbursement.......... 46
SECTION 608. Disqualification; Conflicting
Interests............................... 46
SECTION 609. Corporate Trustee Required;
Eligibility............................. 52
SECTION 610. Resignation and Removal;
Appointment of Successor................ 53
SECTION 611. Acceptance of Appointment
by Successor............................ 55
SECTION 612. Merger, Conversion, Consolidation
or Succession to Business............... 56
SECTION 613. Preferential Collection of Claims
Against Company......................... 56
SECTION 614. Appointment of Authenticating Agent..... 60
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE
AND COMPANY.................................................. 62
SECTION 701. Company to Furnish Trustee Names
and Addresses of Holders................ 62
SECTION 702. Preservation of Information;
Communications to Holders............... 63
SECTION 703. Reports by Trustee...................... 64
SECTION 704. Reports by Company...................... 65
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE............................................ 66
SECTION 801. Company May Consolidate, Etc.,
Only on Certain Terms................... 66
SECTION 802. Successor Corporation Substituted....... 67
ARTICLE NINE
SUPPLEMENTAL INDENTURES...................................... 68
SECTION 901. Supplemental Indentures Without
Consent of Holders...................... 68
SECTION 902. Supplemental Indentures With
Consent of Holders...................... 69
SECTION 903. Execution of Supplemental Indentures.... 70
SECTION 904. Effect of Supplemental Indentures....... 70
SECTION 905. Conformity with Trust Indenture Act..... 71
SECTION 906. Reference in Securities to
Supplemental Indentures................. 71
SECTION 907. Subordination Unimpaired................ 71
ARTICLE TEN
-iv-
<PAGE>
Page
----
COVENANTS.................................................... 71
SECTION 1001. Payment of Principal, Premium
and Interest........................... 71
SECTION 1002. Maintenance of Office or Agency........ 72
SECTION 1003. Money for Securities Payments
to Be Held in Trust.................... 72
SECTION 1004. Statement by Officers as to Default.... 74
ARTICLE ELEVEN
REDEMPTION OF SECURITIES..................................... 74
SECTION 1101. Applicability of Article............... 74
SECTION 1102. Election to Redeem: Notice
to Trustee............................. 74
SECTION 1103. Selection by Trustee of Securities
to Be Redeemed......................... 74
SECTION 1104. Notice of Redemption................... 75
SECTION 1105. Deposit of Redemption Price............ 76
SECTION 1106. Securities Payable on Redemption Date.. 76
SECTION 1107. Securities Redeemed in Part............ 76
ARTICLE TWELVE
SINKING FUNDS................................................ 77
SECTION 1201. Applicability of Article............... 77
SECTION 1202. Satisfaction of Sinking Fund
Payments with Securities............... 77
SECTION 1203. Redemption of Securities for
Sinking Fund........................... 77
ARTICLE THIRTEEN
SUBORDINATION................................................ 78
SECTION 1301. Securities Subordinated to
Senior Indebtedness.................... 78
SECTION 1302. Disputes with Holders of
Certain Senior Indebtedness............ 80
SECTION 1303. Subrogation............................ 80
SECTION 1304. Obligation of Company Unconditional.... 80
SECTION 1305. Payments on Securities Permitted....... 81
SECTION 1306. Effectuation of Subordination
by Trustee............................. 81
SECTION 1307. Knowledge of Trustee................... 81
SECTION 1308. Trustee May Hold Senior
Indebtedness........................... 82
SECTION 1309. Rights of Holders of Senior
Indebtedness Not Impaired.............. 82
SECTION 1310. Article Applicable to Paying Agents.... 82
SECTION 1311. Trustee; Compensation
Not Prejudiced......................... 84
-v-
<PAGE>
Page
----
Testimonium.................................................. 84
Signatures and Seals......................................... 84
Acknowledgements............................................. 85
-vi-
<PAGE>
INDENTURE, dated as of _______ __, 1998, between Dillard's, Inc., a
corporation duly organized and existing under the laws of the State of Delaware
(herein called the "Company"), having its principal office at 1600 Cantrell
Road, Little Rock, Arkansas 72201, and The Chase Manhattan Bank, a banking
corporation duly organized and existing under the laws of the State of New York,
Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually covenanted and agreed. for the equal and
proportionate benefit of all Holders of the Securities or of series thereof, as
follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to them in
this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to
them therein;
(3) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles,
and, except otherwise herein expressly provided, the term "generally accepted
accounting principles" with respect to any computation required or permitted
hereunder shall mean such accounting principles as are generally accepted at
the date of such computation; and
<PAGE>
2
(4) the words "herein", "hereof" and "hereunder" and other words of similar
import refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision.
Certain terms, used principally in Article Six, are defined in that
Article.
"Act", when used with respect to any Holder, has the meaning specified in
Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee to act on
behalf of the Trustee to authenticate Securities.
"Board of Directors" means either the board of directors of the Company or
any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment, means each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment are authorized or obligated by law
to close.
"Capital Securities" means, with respect to a Dillard's Capital Trust, the
undivided beneficial interests in the assets of such trust that rank pari passu
with the Common Securities issued by such trust; provided, that upon the
occurrence of an Event of Default with respect to the Securities held by such
trust, the rights of holders of such Common Securities to payment in respect of
distributions and payments upon liquidation, redemption and otherwise are
subordinated to the rights of holders of such Capital Securities.
"Capital Securities Guarantee" means, with respect to a Dillard's Capital
Trust, any guarantee that the Guarantor enters into with The Chase Manhattan
Bank or any other Person that operates directly or indirectly for the benefit of
holders of the Capital Securities of such trust.
<PAGE>
3
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, or, if at
any time after the execution of this instrument such Commission is not existing
and performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties at such time.
"Common Securities" means, with respect to a Dillard's Capital Trust, the
undivided beneficial interests in the assets of such trust that rank pari passu
with the Capital Securities issued by such trust; provided, that upon the
occurrence of an Event of Default with respect to the Securities held by such
trust, the rights of holders of such Common Securities to payment in respect to
distributions and payments upon liquidation, redemption and otherwise are
subordinated to the rights of holders of such Capital Securities.
"Common Securities Guarantee" means, with respect to a Dillard's Capital
Trust, any guarantee that the Guarantor enters into with any Person that
operates directly or indirectly for the benefit of holders of the Common
Securities of such trust.
"Company" means the Person named as the "Company" in the first paragraph of
this instrument until a successor corporation shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor corporation.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman or Vice Chairman of the Board,
its President or a Vice President, and by its Treasurer, an Assistant Treasurer,
its Secretary or an Assistant Secretary, and delivered to the Trustee.
"Corporate Trust Office" means the office of the Trustee at which at any
particular time its corporate trust business shall be principally administered,
which office at the date hereof is located at 55 Water Street, New York, New
York 10041.
"corporation" includes corporations, associations, companies and business
trusts.
"Defaulted Interest" has the meaning specified in Section 307.
"Dillard's Capital Trust" means a Dillard's Capital Trust, a Delaware
statutory business trust, or any permitted successor thereto, or any
substantially similar Delaware statutory business trust sponsored by the
Company.
"Direct Action" means a legal proceeding instituted by a holder of the
Capital Securities of a Dillard's Capital Trust directly against the Company for
the enforcement of payment to such holder of any amounts payable in respect of
the Securities
<PAGE>
4
held by such trust having a principal amount equal to the aggregate liquidation
amount of the Capital Securities held by such holder, if an Event of Default has
occurred and is continuing and such Event of Default is attributable to the
failure of the Company to pay any amounts payable in respect of such Securities
on the date such amounts are otherwise payable (in accordance with the terms
hereof and thereof).
"Event of Default" has the meaning specified in Section 501.
"Foreign Currency" means a currency or cash issued by the government of any
country other than the United States of America or units based on or relating to
such currencies (including European Currency Units) (such Units, including
European Currency Units, being hereinafter referred to as "basket currencies").
"Foreign Government Securities" means with respect to Securities of any
series that are denominated in a Foreign Currency, noncallable (i) direct
obligations of the government that issued such Foreign Currency, for the payment
of which obligations its full faith and credit is pledged or (ii) obligations of
a Person controlled or supervised by and acting as an agency or instrumentality
of such government, the payment of which obligations is unconditionally
guaranteed as a full faith and credit obligation of such government.
"Global Note" means a registered Security evidencing all or part of a
series of Securities, including, without limitation, any temporary or permanent
Global Note.
"Guarantor" means the Issuer in its capacity as guarantor under any Trust
Securities Guarantee.
"Holder " means a Person in whose name a Security is registered in the
Security Register.
"Indebtedness" of any Person means indebtedness for borrowed money and all
indebtedness under purchase money mortgages or other purchase money liens or
conditional sales or similar title retention agreements in each case where such
indebtedness has been created, incurred, assumed or guaranteed by such Person or
where such Person is otherwise liable therefor and indebtedness for borrowed
money secured by any mortgage, pledge or other lien or encumbrance upon property
owned by such Person even though such Person has not assumed or become liable
for the payment of such indebtedness.
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof and shall
include the terms of particular series of Securities established as contemplated
by Section 301.
<PAGE>
5
"interest", when used with respect to an Original Issue Discount Security
which by its terms bears interest only after Maturity, means interest payable
after Maturity.
"Interest Payment Date", when used with respect to any Security means the
Stated Maturity of an instalment of interest on such Security.
"Market Exchange Rate" means (i) for any conversion involving a currency
unit on the one hand and U.S. Dollars or any Foreign Currency on the other, the
exchange rate between the relevant currency unit and U.S. Dollars or such
Foreign Currency calculated by the method specified pursuant to Section 301 for
the securities of the relevant series, (ii) for any conversion of U.S. Dollars
into any Foreign Currency, the noon (New York City time) buying rate for such
Foreign Currency for cable transfers quoted in New York City as certified for
customs purposes by the Federal Reserve Bank of New York and (iii) for any
conversion of one Foreign Currency into U.S. Dollars or another Foreign
Currency, the spot rate at noon local time in the relevant market at which, in
accordance with normal banking procedures, the U.S. Dollars or Foreign Currency
into which conversion is being made could be purchased with the Foreign Currency
from which conversion is being made from major banks located in either New York
City, London or any other principal market for U.S. Dollars or such purchased
Foreign Currency. In the event of the unavailability of any of the exchange
rates provided for in the foregoing clauses (i), (ii) and (iii) the Trustee, or
such other Person appointed for such purpose pursuant to Section 301, shall use,
in its sole discretion and without liability on its part, such quotation of the
Federal Reserve Bank of New York as of the most recent available date, or
quotations from one or more major banks in New York City, London or other
principal market for such currency or currency unit in question, or such other
quotations as the Trustee, or such other Person, shall deem appropriate. Unless
there is more than one market for dealing in any currency or currency unit by
reason of foreign exchange regulations or otherwise, the market to be used in
respect of such currency or currency unit shall be that upon which a nonresident
issuer of securities designated in such currency or currency unit would purchase
such currency or currency unit in order to make payments in respect of such
securities.
"Maturity", when used with respect to any Security means the date on which
the principal of such Security or an instalment of principal becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, the Vice Chairman of the Board, the President or a Vice President, and by
the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary,
of the Company and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of
<PAGE>
6
counsel, who may be counsel for the Company and who shall be acceptable to the
Trustee.
"Original Issue Discount Security" means any Security which provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities for whose payment or redemption (a) money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and segregated
in trust by the Company (if the Company shall act as its own Paying Agent)
for the Holders of such Securities or (b) obligations as contemplated by
Section 403(d) in the necessary amount have been theretofore deposited with
the Trustee in trust, for the Holders of such Securities; provided that, if
such Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor satisfactory to the
Trustee has been made; and
(iii) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder (i) the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon acceleration of the Maturity
thereof pursuant to Section 502 and (ii) Securities owned by the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent or waiver, only
Securities which the Trustee knows to be so owned shall be so
<PAGE>
7
disregarded. Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities on behalf of
the Company.
"Periodic Offering" means an offering of Securities of a series from time
to time the specific terms of which Securities including without limitation the
rate or rates of interest, if any, thereon, the Stated Maturity or Maturities
thereof and the redemption provisions, if any, with respect thereto, are to be
determined by the Company or its agents upon the issuance of such Securities.
"Person" means any individual, corporation. partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment",when used with respect to the Securities of any series,
means the place or places where the principal of (and premium, if any) and
interest on the Securities of that series are payable as specified as
contemplated by Section 301.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Redemption Date", when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on any Interest Payment Date
on the Securities of any series means the date specified for that purpose as
contemplated by Section 301.
"Responsible Officer", when used with respect to the Trustee, means the
chairman or any vice-chairman of the board of directors, the chairman or any
vice-chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any vice president, the secretary, any
<PAGE>
8
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any trust officer or assistant trust officer, the controller
or any assistant controller or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the part icular subject.
"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities authenticated and delivered under
this Indenture.
"Securities and Exchange Act of 1934" means the Securities and Exchange Act
of 1934, as amended, or any successor thereto.
"Security Register" and "Security Registrar " have the respective meanings
specified in Section 305.
"Senior Indenture" means the Indenture between the Company and The Chase
Manhattan Bank (formerly known as Chemical Bank), as trustee, dated as of May
15, 1988, as supplemented by a First Supplemental Indenture dated as of December
16, 1988 and a Second Supplemental Indenture dated as of September 14, 1990 and
by a Third Supplemental Indenture dated as of July __, 1998, as the same may be
amended from time to time.
"Senior Indebtedness" means obligations with respect to securities issued
under the Senior Indenture and any other obligations (other than non-recourse
obligations, the Securities or any other obligations specifically designated as
being subordinate in right of payment to Senior Indebtedness) of, or guaranteed
or assumed by, the Company for borrowed money or evidenced by bonds, debentures,
notes or other similar instruments, and amendments, renewals, extensions,
modifications and refundings of any such indebtedness or obligation.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any instalment
of principal thereof or interest thereon, means the date specified in such
Security as the fixed date on which the principal of such Security or such
instalment of principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding voting
stock of which is owned, directly or indirectly, by the Company or by one or
more other Subsidiaries, or by the Company and one or more other Subsidiaries.
For the purposes of this definition "voting stock" means stock which ordinarily
has voting power for the election of directors, whether at all times or only so
long as no senior class of stock
<PAGE>
9
has such voting power by reason of any contingency.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this instrument until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder, and if at any time there is
more than one such Person, "Trustee" as used with respect to the Securities of
any series shall mean the Trustee with respect to Securities of that series.
"Trust Agreement" means with respect to a Dillard's Capital Trust, the
Amended and Restated Trust Agreement of such Trust.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at
the date as of which this instrument was executed, except as provided in Section
905.
"Trust Securities" means, with respect to a Dillard's Capital Trust, the
Common Securities and the Capital Securities issued by such trust.
"Trust Securities Guarantee" means, with respect to a Dillard's Capital
Trust, the Common Securities Guarantee and the Capital Securities Guarantee
covering the Common Securities and the Capital Securities, respectively, of such
trust.
"U.S. Depositary" means a clearing agency registered under the Securities
and Exchange Act of 1934 which shall be designated by the Company pursuant to
Section 301 until a successor U.S. Depositary shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "U.S. Depositary"
shall mean or include each Person who is then a U.S. Depositary hereunder, and
if at any time there is more than one such Person, "U.S. Depositary" as used
with respect to Securities of any series shall mean the U.S. Depositary with
respect to the Securities of that series.
"U.S. Government Obligations" means direct obligations of the United States
for the payment of which its full faith and credit is pledged or obligations of
a person controlled or supervised by and acting as an agency or instrumentality
of the United States and the payment of which is unconditionally guaranteed by
the United States.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president whether or not designated by a number or a word or
words added before or after the title "vice president".
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10
SECTION 102. Compliance Certificates and Opinions.
Except as otherwise expressly provided by this Indenture, upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person it is not necessary that all such
matters be certified by or covered by the opinion of only one such Person, or
that they be so certified or covered by only one document, but one such Person
may certify or give an opinion with respect to some matters and one or more
other such Persons as to other matters and any such Person may certify or give
an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by counsel unless such officer knows or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with
<PAGE>
10
respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company that the information
with respect to such factual matters is in the possession of the Company, unless
such counsel knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous.
Where any Person is required to make, give or execute two or more
applications requests consents, certificates, statements, opinions or other
instruments under this Indenture, they may but need not be consolidated and form
one instrument.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice consent, waiver
or other action provided by this Indenture to be given or taken by Holders or
holders of Capital Securities may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders or holders of
Capital Securities in person or by agent duly appointed in writing; and except
as herein otherwise expressly provided, such action shall become effective when
such instrument or instruments are delivered to the Trustee and, where it is
hereby expressly required, to the Company. Such instrument or instruments (and
the action embodied therein and evidenced thereby) are herein sometimes referred
to as the "Act" of the Holders or holders of Capital Securities signing such
instrument or instruments. Proof of execution of any such instrument or of a
writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgements of deeds, certifying that the individual signing such
instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the Security Register.
(d) Any request, authorization, direction, notice, consent, waiver or other
Act of the Holder of any Security or the holder of any Capital Security shall
bind every future Holder of
<PAGE>
12
the same Security, or holder of the same Capital Security, as the case may be,
and the Holder of every Security or the holder of every Capital Security, as the
case may be, issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or suffered to
be done by the Trustee or the Company in reliance thereon, whether or not
notation of such action is made upon such Security.
SECTION 105. Notices, Etc., to Trustee and Company.
Any request demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Corporate Trust Office, Attention: Corporate
Trustee Administration Department, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the
first paragraph of this instrument or at any other address previously
furnished in writing to the Trustee by the Company.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event at his address as it appears in the Security Register, not later
than the latest date, and not earlier than the earliest date prescribed for the
giving of such notice. In any case where notice to Holders is given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed,
to any particular Holder shall affect the sufficiency of such notice with
respect to other Holders. Where this Indenture provides for notice in any
manner, such notice may be waived in writing by the Person entitled to receive
such notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any actions taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder.
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13
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in this Indenture by any of
the provisions of the Trust Indenture Act, such required provision shall
control.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall
give to any Person, other than the parties hereto and their successors hereunder
and the Holders and the holders of the Senior Indebtedness, any benefit or any
legal or equitable right, remedy or claim under this Indenture.
SECTION 112. Governing Law.
This Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the
Securities) payment of interest or principal (and premium, if any) need not be
made at such Place of Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment with the same force and effect
as if made on the Interest Payment Date or Redemption Date, or at the Stated
Maturity, provided that no interest shall accrue for the period from and after
such Interest Payment Date, Redemption Date or Stated Maturity, as the case may
be.
<PAGE>
14
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Securities of each series shall be in substantially the form set forth
in this Article, or in such other form as shall be established by or pursuant to
a Board Resolution or in one or more indentures supplemental hereto, in each
case with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by their execution of the
Securities. If the form of Securities of any series is established by, or by
action taken pursuant to a Board Resolution, a copy of the Board Resolution
together with an appropriate record of any action taken pursuant thereto, which
Board Resolution or record of such action shall have attached thereto a true and
correct copy of the form of Security approved by or pursuant to such Board
Resolution, shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the Company
Order contemplated be Section 303 for the authentication and delivery of such
Securities.
The Trustee's certificates of authentication shall be in substantially the
form set forth in this Article.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities, as evidenced by their execution of
such Securities.
SECTION 202. Form of Trustee's Certificate of Authentication.
This is one of the Securities of the series designated therein referral to
in the within-mentioned Subordinated Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By.......................
Authorized Officer
<PAGE>
15
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series and the Securities of
each such series shall rank equally and pari passu with the Securities of each
other series, but all Securities issued hereunder shall be subordinate and
junior in right of payment, to the extent and in the manner set forth in Article
13, to all Senior Indebtedness of the Company. There shall be established in or
pursuant to a Board Resolution, and, subject to Section 303, set forth, or
determined in the manner provided, in an Officers' Certificate, or established
in one or more indentures supplemental hereto, prior to the issuance of
Securities of any series,
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities
of the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 304, 305, 306, 906 or 1107) and except for any
Securities which, pursuant to Section 303 of the Indenture, shall have not
been issued and sold by the Company and are therefore deemed never to have
been authenticated and delivered hereunder;
(3) the Person to whom any interest on a Security of the series shall
be payable, if other than the Person in whose name that Security (or one or
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest;
(4) the date or dates on which the principal of the Securities of the
series is payable;
(5) the rate or rates at which the Securities of the series shall
bear interest, if any, the date or dates from which such interest shall
accrue, the Interest Payment Dates on which such interest shall be payable
and the Regular Record Date for the interest payable on any Interest
Payment Date; any provisions relating to the deferral of interest payments
on the Securities of the series at the option of the Company or otherwise;
<PAGE>
16
(6) the place or places where the principal of (and premium, if any) and
interest on Securities of the series shall be payable;
(7) the period or periods within which, the price or prices at which and the
terms and conditions upon which Securities of the series may be redeemed, in
whole or in part, at the option of the Company;
(8) the obligation, if any, of the Company to redeem or purchase Securities
of the series pursuant to any sinking fund or analogous provisions or at the
option of a Holder thereof and the period or periods within which, the price or
prices at which and the terms and conditions upon which Securities of the series
shall be redeemed or purchased, in whole or in part, pursuant to such
obligation;
(9) if other than denominations of $1,000 and any integral multiple thereof,
the denominations in which Securities of the series shall be issuable;
(10) if other than the principal amount thereof, the portion of the principal
amount of Securities of the series which shall be payable upon declaration of
acceleration of the Maturity thereof pursuant to Section 502;
(11) the currency or currencies, including composite currencies, in which
payment of the principal of (and premium, if any) and interest on the Securities
of the series shall be payable (if other than the currency of the United States
of America);
(12) if the amount of payments of principal of (and premium, if any) or
interest on the Securities of the series may be determined with reference to an
index, the manner in which such amounts shall be determined;
(13) whether the Securities of the series are to be issued as Original Issue
Discount Securities and the amount of discount with which such Securities may be
issued and, if other than the principal amount thereof, the portion of the
principal amount of Securities of the series that shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 502;
(14) any addition to, or modification or deletion of, any Events of Default or
covenants provided with respect to Securities of the series;
(15) whether the Securities of the series shall be issued in whole or in part
in the form of one or more Global Notes and, in such case, the U.S. Depositary
or any Common Depositary for such Global Note or Notes; and
(16) any other terms of the series (which terms shall not be inconsistent with
the provisions of this Indenture).
<PAGE>
17
All Securities of any one series shall be substantially identical except as to
denomination and except as may otherwise be provided in or pursuant to the Board
Resolution referred to above and (subject to Section 303) set forth, or
delivered in the manner provided, in the Officers' Certificate referred to above
or in any such indenture supplemental hereto.
If any of the terms of the series are established by action taken pursuant to
a Board Resolution, a copy of an appropriate record of such action together with
such Board Resolution shall be certified by the Secretary or an Assistant
Secretary of the Company and delivered to the Trustee at or prior to the
delivery of the Officers' Certificate setting forth the terms or the manner of
determining the terms of the series. With respect to Securities of a series
offered in a Periodic Offering, such Board Resolution or action may provide
general terms or parameters for Securities of such series and provide either
that the specific terms of particular Securities of such series shall be
specified in a Company Order or that such terms shall be determined by the
Company or its agents in accordance with a Company Order as contemplated by the
first proviso of the third paragraph of Section 303.
SECTION 302. Denominations.
The Securities of each series shall be issuable in registered form without
coupons in such denominations as shall be specified as contemplated by Section
301. In the absence of any such provisions with respect to the Securities of
any series, the Securities of such series shall be issuable in denominations of
$1,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its Chairman of
the Board, its Vice Chairman of the Board, its President or one of its Vice
Presidents, under its corporate seal reproduced thereon attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who were
at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and
<PAGE>
18
deliver such Securities; provided, however, that, with respect to Securities of
a series offered in a Periodic Offering, (a) the Trustee shall authenticate and
deliver Securities of such series for original issue from time to time, in an
aggregate principal amount not exceeding the aggregate principal amount
established for such series, pursuant to a Company Order or pursuant to such
other procedures acceptable to the Trustee as may be specified from time to time
by a Company Order, (b) the maturity date or dates, original issue date or
dates, currency or currencies or composite currencies, interest rate or rates
and any other terms of the Securities of such series shall be determined by
Company Order or pursuant to such procedures and (c) if provided for in such
procedures, such Company Order may authorize authentication and delivery
pursuant to oral or electronic instructions from the Company or its duly
authorized agent or agents, which instructions shall be promptly confirmed in
writing. In authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to Section 601) shall be
fully protected in relying upon, an Opinion of Counsel stating,
(a) that the form of such Securities has been established in conformity
with the provisions of this Indenture;
(b) that the terms of such Securities have been established in conformity
with the provisions of this Indenture; and
(c) that such Securities, when authenticated and delivered by the Trustee
and issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and legally
binding obligations of the Company, enforceable in accordance with their
terms, subject to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting the enforcement of creditors'
rights and to general equity principles; provided, however, that, with respect
to Securities of a series offered in a Periodic Offering, the Trustee shall be
entitled to receive such Opinion of Counsel in connection only with the first
authentication of Securities of such series and that the opinions described in
clauses (b) and (c) above may state, respectively,
(x) that, when the terms of such Securities shall have been established
pursuant to a Company Order or pursuant to such procedures as may be specified
from time to time by a Company Order, all as contemplated by a Board
Resolution or action taken pursuant thereto, such terms will have been duly
authorized by the Company and will have been established in conformity with
the provisions of this Indenture; and
(y) that such Securities, when (i) executed by the
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19
Company, (ii) completed, authenticated and delivered by the Trustee in
accordance with this Indenture, (iii) issued and delivered by the Company and
(iv) paid for, all in accordance with any agreement of the Company relating to
the offering, issuance and sale of such Securities, will have been duly issued
under this Indenture and will constitute valid and legally binding obligations
of the Company, entitled to the benefits provided by the Indenture, and
enforceable in accordance with their terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization, moratorium and other laws relating to
or affecting generally the enforcement of creditors' rights and to general
principles of equity.
With respect to Securities of a series offered in a Periodic Offering, the
Trustee may rely, as to the authorization by the Company of any of such
Securities, the form and terms thereof and the legality, validity, binding
effect and enforceability thereof, upon the Opinion of Counsel, Company Order
and other documents delivered pursuant to Sections 201 and 301 and this Section,
as applicable, delivered at or prior to the first authentication of Securities
of such series unless and until such opinion or other documents have been
superseded or revoked.
Notwithstanding the provisions of Section 301 and of the third paragraph of
this Section 303, if any Securities of a series are to be offered in a Periodic
Offering, it shall not be necessary to deliver the Opinion of Counsel, Company
Order and other documents otherwise required pursuant to Sections 201 and 301
and this Section at or prior to the time of authentication of each Security of
such series if such documents are delivered at or prior to the time of
authentication upon original issuance of the first Security of such series to be
issued.
The Trustee shall not be required to authenticate such Securities if the issue
of such Securities pursuant to this Indenture will affect the Trustee's own
rights, duties or immunities under the Securities and this Indenture or
otherwise in a manner which is not reasonably acceptable to the Trustee.
Each Security be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be valid
or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder and is entitled to the
benefits of this Indenture. Notwithstanding the foregoing if any Security shall
have been authenticated and delivered hereunder but never issued and sold by the
Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 309 together with a written statement (which
need not comply with Section 102 and need not be accompanied by an Opinion of
Counsel) stating
<PAGE>
20
that such Security has never been issued and sold by the Company, for all
purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
SECTION 304. Temporary Securities.
(a) Pending the preparation of definitive Securities of any series, the
Company may execute and upon Company Order the Trustee shall authenticate and
deliver temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination substantially
of the tenor of the definitive Securities in lieu of which they are issued and
with such appropriate insertions, omissions, substitutions and other variations
as the officers executing such securities may determine, as evidenced by their
execution of such Securities.
If temporary Securities of any series are issued, the Company will cause
definitive Securities of that series to be prepared without unreasonable delay.
After the preparation of definitive Securities of such series, the temporary
Securities of such series shall be exchangeable for definitive Securities of
such series upon surrender of the temporary Securities of such series at the
office or agency of the Company in a Place of Payment for that series without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities of any series the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of the same series and of like tenor of authorized
denominations. Until so exchanged the temporary Securities of any series shall
in all respects be entitled to the same benefits under this Indenture as
definitive Securities of such series.
(b) If the Company shall establish pursuant to Section 301 that the Securities
of a series are to be issued in whole or in part in the form of one or more
Global Notes, then the Company shall execute and the Trustees shall, in
accordance with Section 303 and the Company Order with respect to such series,
authenticate and deliver one or more Global Notes in temporary or permanent form
that (i) shall represent and shall be denominated in an amount equal to the
aggregate principal amount of the Outstanding Securities of such series to be
represented by one or more Global Notes, (ii) shall be registered in the name of
the U.S. Depositary for such Global Note or Notes or the nominee of such
depositary, (iii) shall be delivered by the Trustee to such depositary or
pursuant to such depositary's instruction and (iv) shall bear a legend
substantially to the following effect: "Unless and until it is exchanged in
whole or in part for Securities in definitive form, this Security may not be
transferred except as a whole by the Depositary to a nominee of the Depositary
or by a nominee of the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a successor Depositary or
a nominee of such successor Depositary."
<PAGE>
21
Notwithstanding any other provisions of this Section or Section 305, unless
and until it is exchanged in whole or in part for Securities in definitive form,
a Global Note representing all or a portion of the Securities of a series may
not be transferred except as a whole by the U.S. Depositary for such series to a
nominee of such depositary or by a nominee of such depositary to such depositary
or another nominee of such depositary or by such depositary or any such nominee
to a successor U.S. Depositary for such series or a nominee of such successor
depositary.
If at any time the U.S. Depositary for the Securities of a series notifies the
Company that it is unwilling or unable to continue as U.S. Depositary for the
Securities of such series or if at any time the U.S. Depositary for Securities
of a series shall no longer be registered or in good standing under the
Securities and Exchange Act of 1934 or other applicable statute or regulation,
the Company shall appoint a successor U.S. Depositary with respect to the
Securities of such series.
If a successor U.S. Depositary for the Securities of such series is not
appointed by the Company within 90 days after the Company receives such notice
or becomes aware of such condition, the Company will execute, and the Trustee,
upon receipt of a Company Order for the authentication and delivery of
definitive Securities of such series, will authenticate and deliver, registered
Securities of such series in definitive form in an aggregate principal amount
equal to the principal amount of the Global Note or Notes representing such
series in exchange for such Global Note or Notes.
The Company may at any time and in its sole discretion determine that the
Securities of any series issued in the form of one or more Global Notes shall no
longer be represented by such Global Note or Notes. In such event, the Company
will execute, and the Trustee, upon receipt of a Company Order for the
authentication and delivery of definitive Securities of such series, will
authenticate and deliver, registered Securities of such series in definitive
form and in an aggregate principal amount equal to the principal amount of the
Global Note or Notes representing such series in exchange for such Global Notes
or Notes.
If specified by the Company pursuant to Section 301 with respect to Securities
of a series, the U.S. Depositary for such series of Securities may surrender a
Global Note for such series of Securities in exchange in whole or in part for
registered Securities of such series in definitive form on such terms as are
acceptable to the Company and such depositary. Thereupon, the Company shall
execute and the Trustee shall authenticate and deliver, without charge,
(i) to each Person specified by the U.S. Depositary a new registered
Security or Securities of the same series, of any authorized denomination as
requested by such Person in aggregate principal amount equal to and in
exchange for such
<PAGE>
22
Person's beneficial interest in the Global Note; and
(ii) to the U.S. Depositary a new Global Note in a denomination equal to
the difference, if any, between the principal amount of the surrendered Global
Note and the aggregate principal amount of registered Securities delivered to
Holders thereof.
Upon the exchange of a Global Note for Securities in definitive form, such
Global Note shall be cancelled by the Trustee. Debt Securities issued in
exchange for a Global Note pursuant to this subsection (b) shall be registered
in such names and in such authorized denomination as the U.S. Depositary for
such Global Note, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall
deliver such Securities to the persons in whose names such Securities are so
registered.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office and in any other
office or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide the
registration of Securities and of transfers of Securities. The Trustee is
hereby appointed Security Registrar for the purpose of registering Securities
and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of any series at
the office or agency in a Place of Payment for that series, the Company shall
execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Securities of the same
series of any authorized denominations and of a like aggregate principal amount
and of like tenor.
At the option of the Holder, Securities of any series (except Global Notes)
may be exchanged for other Securities of the same series of like aggregate
principal amount and of a like Stated Maturity and with the like terms and
conditions, upon surrender of the Securities to be exchanged at such office or
agency. Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt and entitled to the same benefits under this Indenture as the Securities
surrendered upon such registration of transfer or exchange.
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23
Every Security presented or surrendered for registration of transfer or for
exchange shall (if so required by the Company or the Trustee) be duly endorsed
or be accompanied by a written instrument of transfer in form satisfactory to
the Company and the Security Registrar duly executed, by the Holder thereof or
his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or exchange
of Securities but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Securities other than exchanges pursuant
to Section 304, 906 or 1107 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer of or
exchange Securities of any series during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of
Securities of that series selected for redemption under Section 1103 and ending
at the close of business on the day of such mailing or (ii) to register the
transfer of or exchange any Security so selected for redemption in whole or in
part, except the unredeemed portion of any Security being redeemed in part.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
new Security of the same series and of like tenor and principal amount and
bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon its request the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become or
is about to become due and payable, the Company in its discretion may, instead
of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
<PAGE>
24
Every new Security of any series issued pursuant to this Section in lieu of
any destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone and shall be entitled
to all the benefits of this Indenture equally and proportionately with any and
all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the extent
lawful) all other rights and remedies with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Unless otherwise provided as contemplated by Section 301 with respect to any
series of Securities, interest on any Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be paid
to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest; provided, however, that, if the Securities of such series are
held by a Dillard's Capital Trust or a trustee of such trust and a holder of a
Capital Security of such trust brings a successful Direct Action with respect to
any interest payable on such Securities, such interest will be payable directly
to such holder. In such event, the Company will have the right to set-off such
payment to such holder against its obligation to pay interest on such Securities
to such Dillard's Capital Trust.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company at its election in each case,
as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to the
Persons in whose names the Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest, which shall be fixed
in the following manner. The Company shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each Security of such
series and the date of the proposed payment, and at the same time the Company
shall deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of
the proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this Clause
<PAGE>
25
provided. Thereupon the Trustee shall fix a Special Record Date for the
payment of such Defaulted Interest which shall be not more than 15 days and
not less than 10 days prior to the date of the proposed payment and not less
than 10 days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such Special Record
Date and, in the name and at the expense of the Company, shall cause notice of
the proposed payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first class postage prepaid, to each Holder of
Securities of such series at his address as it appears in the Security
Register, not less than 10 days prior to such Special Record Date. Notice of
the proposed payment of such Defaulted Interest and the Special Record Date
therefor having been so mailed, such Defaulted Interest shall be paid to the
Persons in whose names the Securities of such series (or their respective
Securities) are registered at the close of business on such Special Record
Date and shall no longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Securities may be listed
and upon such notice as may be required by such exchange, if, after notice
given by the Company to the Trustee of the proposed payment pursuant to this
Clause, such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security delivered
under this Indenture upon registration of transfer of or in exchange for or in
lieu of any other Security shall carry the rights to interest accrued and unpaid
and to accrue, which were carried by such other Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name such Security is registered as the owner of such Security
for the purpose of receiving payment of principal of (and premium, if any) and
(subject to Section 307) interest on such Security and for all other purposes
whatsoever whether or not such Security be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be affected by notice
to the contrary.
Notwithstanding the foregoing, if the Securities of such series are held by a
Dillard's Capital Trust, nothing in this Section 308 shall be deemed to impair
the right of any holder of Capital Securities to institute a Direct Action or to
declare an Event of Default and accelerate the maturity of such series.
<PAGE>
26
SECTION 309. Cancellation.
All Securities surrendered for payment, redemption, registration of transfer
or exchange or for credit against any sinking fund payment shall, if surrendered
to any Person other than the Trustee, be delivered to the Trustee and shall be
promptly cancelled by it. The Company may at any time deliver to the Trustee
for cancellation any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever and may deliver to
the Trustee (or to any other Person for delivery to the Trustee) for
cancellation any Securities previously authenticated hereunder which the Company
has not issued and sold, and all Securities so delivered shall be promptly
cancelled by the Trustee. No Securities shall be authenticated in lieu of or in
exchange for any Securities cancelled as provided in this Section, except as
expressly permitted by this Indenture. All cancelled Securities held by the
Trustee shall be disposed of as directed by a Company Order.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for Securities of
any series, interest on the Securities of each series shall be computed on the
basis of a 360-day year of twelve 30-day months.
SECTION 311. Judgments.
If for the purpose of obtaining a judgment in any court with respect to any
obligation of the Company hereunder or under any Security, it shall become
necessary to convert into any other currency any amount in the currency due
hereunder or under such Security, then such conversion shall be made at the
market Exchange Rate as in effect on the date the Company shall make payment to
any person in satisfaction of such judgment. If pursuant to any such judgment,
conversion shall be made on a date other than the date payment is made and there
shall occur a change between such Market Exchange Rate and the Market Exchange
Rate as in effect on the date of payment, the Company agrees to pay such
additional amounts (if any) as may be necessary to ensure that the amount paid
is equal to the amount in such other currency which, when converted at the
Market Exchange Rate as in effect on the date of payment or distribution, is the
amount due hereunder or under such Security. Any amount due from the Company
under this Section 311 shall be due as a separate debt and is not to be affected
by or merged into any judgment being obtained for any other sums due hereunder
or in respect of any Security. In no event, however, shall the Company be
required to pay more in the currency or currency unit due hereunder or under
such Security at the Market Exchange Rate as in effect when payment is made than
the amount of currency stated to be due hereunder or under such Security so that
in any event the Company's obligations hereunder or under such Security will be
<PAGE>
27
effectively maintained as obligations in such currency, and the Company shall be
entitled to withhold (or be reimbursed for, as the case may be) any excess of
the amount actually realized upon any such conversation over the amount due and
payable on the date of payment or distribution.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect
(except as to any surviving rights of registration of transfer or exchange of
Securities herein expressly provided for), and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered (other than
(i) Securities which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 306 and (ii) Securities for
whose payment money has theretofore been deposited in trust or segregated
and held in trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 1003) have been
delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within
one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company, or
(iv) are deemed paid and discharged pursuant to Section 403, as
applicable,
and the Company in the case of (i) (ii) or (iii) above has deposited or
caused to be deposited with the Trustee as trust finds in trust for the
purpose an amount sufficient to pay and discharge the entire indebtedness
on such Securities not theretofore delivered to the Trustee for
cancellation for principal (and premium, if any) and interest to the date
of such
<PAGE>
28
deposit (in the case of Securities which become due and payable) or to the
Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the obligations of
the Trustee to any Authenticating Agent under Section 614 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of clause (1) of
this Section or if money or obligations shall have been deposited with or
received by the Trustee pursuant to Section 403, the obligations of the Trustee
under Section 402 and the last paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Funds; Indemnification.
(a) Subject to the provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401, all money and U.S.
Government Obligations or Foreign Government Securities deposited with the
Trustee pursuant to Section 403 or 1010 and all money received be the Trustee in
respect of U.S. Government Obligations or Foreign Government Securities
deposited with the Trustee pursuant to Section 403 or 1010, shall be held in
trust and applied by it, in accordance with the provisions of the Securities and
this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money has been deposited with or
received by the Trustee or to make mandatory sinking fund payments or analogous
payments as contemplated by Section 403 or 1010.
(b) The Company shall pay and shall indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against U.S. Government Obligations or
Foreign Government Securities deposited pursuant to Section 403 or 1010 or the
interest and principal received in respect of such obligations other than any
payable by or on behalf of Holders.
(c) The Trustee shall deliver or pay to the Company from time to time upon
Company Request any U.S. Government Obligations or Foreign Government Securities
or money held by it as provided in Section 403 or 1010 which, in the opinion of
a nationally recognized firm of independent certified public accountants
expressed in a written certification thereof delivered to the Trustee, are then
in excess of the amount
<PAGE>
29
thereof which then would have been required to be deposited for the purpose for
which such Obligations or Foreign Government Securities or money were deposited
or received. This provision shall not authorize the sale by the Trustee of any
U.S. Government Obligations or Foreign Government Securities held under this
Indenture.
SECTION 403. Satisfaction, Discharge and Defeasance of Securities of any
Series.
If this Section 403 is specified, as contemplated by Section 301, to be
applicable to Securities of any series the Company shall be deemed to have paid
and discharged the entire indebtedness on all the Outstanding Securities of any
such series on the 91st day after the date of the deposit referred to in
subparagraph (a) hereof, and the provisions of this Indenture, as it relates to
such Outstanding Securities of any such series, shall no longer be in effect
(and the Trustee, at the expense of the Company, shall at Company Request,
execute proper instruments acknowledging the same) except as to:
(i) the rights of Holders of Securities of such series to receive, from the
trust funds described in subparagraph (a) hereof (x) payment of the principal of
(and premium, if any) and each instalment of principal of (and premium. if any)
or interest on the Outstanding Securities of such series on the Stated Maturity
of such principal or instalment of principal or interest and (y) the benefit of
any mandatory sinking fund payments applicable to the Securities of such series
on the day on which such payments are due and payable in accordance with the
terms of this Indenture and the Securities of such series;
(ii) the Company's obligations with respect to such Securities of such series
under Sections 305, 306, 1002 and 1003; and
(iii) the rights, powers, trust and immunities of the Trustee hereunder and
the duties of the Trustee under Section 402 and the duty of the Trustee to
authenticate Securities of such series issued on registration of transfer or
exchange;
provided that, the following conditions shall have been satisfied:
(a) the Company shall have deposited or caused to be deposited irrevocably
with the Trustee as trust funds in trust for the purpose of making the following
payments, specifically pledged as security for and dedicated solely to the
benefit of the Holders of such Securities (i) in the case of Securities of such
series denominated in U.S. dollars, cash in U.S. dollars (or such other money or
currencies as shall then be legal tender in the United States) and/or U.S.
Government Obligations, or (ii) in the case of Securities of such series
denominated in a Foreign
<PAGE>
30
Currency (other than a basket currency), money and/or Foreign Government
Securities in the same Foreign Currency, which through the payment of interest
and principal in respect thereof, in accordance with their terms, will provide
(and without reinvestment and assuming no tax liability will be imposed on such
Trustee), not later than one day before the due date of any payment of money, an
amount in cash, sufficient, in the opinion of a nationally recognized firm of
independent certified public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge each instalment of
principal (and premium, if any) (including mandatory sinking fund or analogous
payments) of and any interest on all the Securities of such series on the dates
such installments of interest or principal are due;
(b) such deposit will not result in a breach or violation of, or constitute a
default under, this Indenture or any other agreement or instrument to which the
Company is a party or by which it is bound;
(c) such provision would not cause any Outstanding Securities of such series
then listed on the New York Stock Exchange or other securities exchange to be
delisted as a result thereof;
(d) no Event of Default or event which with notice or lapse of time would
become an Event of Default with respect to the Securities of such series shall
have occurred and be continuing on the date of such deposit or during the period
ending on the 91st day after such date;
(e) the Company has delivered to the Trustee an Officers' Certificate and an
Opinion of Counsel to the effect that the Company has received from, or there
has been published by, the Internal Revenue Service a ruling to the effect that
Holders of the Securities of such series will not recognize income, gain or loss
for Federal income tax purposes as a result of such deposits, defeasance and
discharge and will be subject to Federal income tax on the same amount and in
the same manner and at the same times, as would have been the case if such
deposit, defeasance and discharge had not occurred; and
(f) the Company has delivered to the Trustee an Officers' Certificate and an
Opinion of Counsel, each stating that all conditions precedent provided for
relating to the defeasance contemplated by this Section have been complied with.
<PAGE>
31
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein with respect to Securities of any
series, means any one of the following events, except the events set forth in
clause (5) below which shall only apply for the benefit of Securities of a
series as to which, pursuant to Section 301 in the establishing Board Resolution
and Officers' Certificate or indentures supplemental hereto, it is provided that
such series shall have the benefit of said Event of Default (whatever the reason
for such Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body):
(1) default in the payment of any interest upon any Security of that series
when it becomes due and payable, and continuance of such default for a period
of 30 days; provided, however, that a valid extension of an interest payment
period by the Company in accordance with the terms of the Securities of a
series issued hereunder shall not constitute a default in the payment of
interest for this purpose; or
(2) default in the payment of the principal of (or premium, if any, on) any
Security of that series at its Maturity: or
(3) default in the deposit of any sinking fund payment, when and as due by
the terms of a Security of that series; or
(4) default in the performance, or breach, of any covenant or warranty of
the Company in this Indenture (other than a covenant or warranty a default in
whose performance or whose breach is elsewhere in this Section specifically
dealt with or which has expressly been included in this Indenture solely for
the benefit of series of Securities other than that series), and continuance
of such default or breach for a period of 60 days after there has been given a
written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default" hereunder, by
registered or certified mail, to the Company by the Trustee or to the Company
and the Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities of that series and, if the Securities of such series
are held by a Dillard's Capital Trust or a trustee of such trust and should
the Trustee or such Holders of the Outstanding Securities fail to give such
notice, the holders of at least 25% in aggregate liquidation amount of the
outstanding Capital Securities of such trust shall have the right to give such
<PAGE>
32
notice; or
(5) (a) a default under any bond, debenture, note or other evidence of
indebtedness for money borrowed by the Company or any of its Subsidiaries
(including a default with respect to Securities of any series other than that
series) or under any mortgage, indenture or instrument under which there may
be issued or by which there may be secured or evidenced any indebtedness for
money borrowed by the Company or any of its Subsidiaries (including this
Indenture) in an aggregate principal amount exceeding $20,000,000, whether
such indebtedness now exists or shall hereafter be created, which default
shall have resulted in such indebtedness becoming or being declared due and
payable prior to the date on which it would otherwise have become due and
payable, without such acceleration having been rescinded or annulled, within a
period of 10 days after there shall have been given a written notice
specifying such default and requiring the Company to cause such acceleration
to be rescinded or annulled and stating that such notice is a "Notice of
Default" hereunder, by registered or certified mail, to the Company by the
Trustee or to the Company and the Trustee by the Holders of at least 25% in
principal amount of the Outstanding Securities of that series and, if the
Securities of such series are held by a Dillard's Capital Trust or a trustee
of such trust and should the Trustee or such Holders of the Outstanding
Securities fail to give such notice, the holders of at least 25% in aggregate
liquidation amount of the outstanding Capital Securities of such trust shall
have such right; or (b) the Company or any of its Subsidiaries fails to pay
any indebtedness under any bond, debenture, note or other evidence of
indebtedness for money borrowed by the Company or any of its Subsidiaries
(including a default with respect to Securities of any series other than that
series) or under any mortgage, indenture or instrument under which there may
be issued or by which there may be secured or evidence any indebtedness for
money borrowed by the Company or any of its Subsidiaries (including this
Indenture) in an aggregate principal amount exceeding $20,000,000, whether
such indebtedness now exists or shall hereafter be created, at the later of
final maturity or upon expiration of any applicable period of grace with
respect to such principal amount, and such failure to pay shall not have been
cured by the Company within 30 days after such failure; provided, however,
that, subject to the provisions of Sections 601 and 602, the Trustee shall not
be deemed to have knowledge of such default or failure unless either (A) a
Responsible Officer of the Trustee in its Corporate Trust Office shall have
actual knowledge of such default or failure or (B) the Trustee shall have
received written notice thereof at its Corporate Trust Office from the
Company, from any Holder, from the holder of any such indebtedness or from the
trustee under any such mortgage, indenture or other instrument; or
(6) the entry by a court having jurisdiction in the
<PAGE>
33
premises of (A) a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or (B) a decree or
order adjudging the Company a bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company under any applicable Federal or
State law, or appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or of any substantial
part of its property, or ordering the winding up or liquidation of its
affairs, and the continuance of any such decree or order for relief or any
such other decree or order unstayed and in effect for a period of 60
consecutive days; or
(7) the commencement by the Company of a voluntary case or proceeding under
any applicable Federal or State bankruptcy, insolvency, reorganization or
other similar law or of any other case or proceeding to be adjudicated a
bankrupt or insolvent, or the consent by it to the entry of a decree or order
for relief in respect of the Company in an involuntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency, reorganization
or other similar law or to the commencement of any bankruptcy or insolvency
case or proceeding against it, or the filing by it of a petition or answer or
consent seeking reorganization or relief under any applicable Federal or State
last, or the consent by it to the filing of such petition or to the
appointment of or taking possession by a custodian, receiver, liquidator,
assignee, trustee, sequestrator or similar official of the Company or of any
substantial part of its property, or the making by it of an assignment for the
benefit of creditors, or the admission by it in writing of its inability to
pay its debts generally as they become due, or the taking of corporate action
by the Company in furtherance of any such action; or
(8) any other Event of Default provided with respect to Securities of that
series.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in Section
501(6) or Section 501(7)) with respect to Securities of any series at the time
Outstanding occurs and is continuing, then in every such case the Trustee or the
Holders of not less than 25% in principal amount of the Outstanding Securities
of that series or, if the Securities of such series are held by a Dillard's
Capital Trust or a trustee of such trust and should the Trustee or such Holders
of the Outstanding Securities fail to make the declaration referred to below,
the holders of at least 25% in aggregate liquidation amount of the outstanding
Capital Securities of such trust (voting as a separate class) may declare the
principal amount (or, if any of
<PAGE>
34
the Securities of that series are Original Issue Discount Securities, such
portion of the principal amount of such Securities as may be specified in the
terms thereof) of all of the Securities of that series to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), and upon any such declaration such principal amount (or specified
amount) shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series had been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum sufficient to
pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if, any on) any Securities of that
series which have become due otherwise than by such declaration of
acceleration and interest thereon at the rate or rates prescribed therefor
in such Securities,
(C) to the extent that payment of such interest is lawful, interest
upon overdue interest at the rate or rates prescribed therefor in such
Securities and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that series, other
than the non-payment of the principal of Securities of that series which have
become due solely by such declaration of acceleration have been cured or
waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon; provided, however, that if the Securities of such series are
held by a Dillard's Capital Trust or a trustee of such trust, (i) such waiver or
rescission and annulment shall not be effective until the holders of a majority
in aggregate liquidation amount of the Capital Securities of such trust shall
have consented to such waiver or rescission and annulment and (ii) should the
Holders of the Securities of such series fail to waive such defaults and rescind
and annul such
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35
declaration and its consequences, the holders of a majority in aggregate
liquidation amount of the Capital Securities of such trust shall have such
right.
If an Event of Default specified in Section 501(6) or 501(7) occurs, the
principal amount (or, if the Debt Securities of that series are Original Issue
Discount Securities, such portion of the principal amount as may be specified in
the terms of that series) of all Debt Securities then outstanding shall ipso
facto become and be immediately due and payable without any declaration or other
act on the part of the Trustee or any Holder.
If the Securities of a series are held by a Dillard's Capital Trust or a
trustee of such trust and an Event of Default has occurred and is continuing and
such Event of Default is attributable to the failure of the Company to pay any
amounts payable in respect of such Securities on the date such amounts are
otherwise payable, a holder of Capital Securities of such trust may institute a
Direct Action. If the Company makes any payment to a holder of such Capital
Securities as a result of a Direct Action, the Company will have the right to
set-off any such payment against its obligation to make any corresponding
payment to such Dillard's Capital Trust on such Securities.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any Security when
such interest becomes due and payable and such default continues for a period
of 30 days, or
(2) default is made in the payment of the principal of (or premium, if any,
on) any Security at the Maturity thereof, or
(3) default is made in the deposit of any sinking fund payment when and as
due by the terms of a Security,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal (and premium, if any) and interest and, to the extent
that payment of such interest shall be legally enforceable, interest on any
overdue principal (and premium, if any) and on any overdue interest, at the rate
or rates prescribed therefor in such Securities, and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the
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36
collection of the sums so due and unpaid, may prosecute such proceeding to
judgment or final decree and may enforce the same against the Company or any
other obligor upon such Securities and collect the moneys adjudged or decreed to
be payable in the manner provided by law out of the property of the Company or
any other obligor upon such Securities, wherever situated.
If an Event of Default with respect to Securities of any series occurs and is
continuing, the Trustee may in its discretion proceed to protect and enforce its
rights and the rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of principal
(and premium, if any) and interest owing and unpaid in respect of the
Securities and to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and of the Holders allowed in such judicial
proceeding, and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the Trustee to authorize
or consent to or accept or adopt on
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37
behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder thereof or to
authorize the Trustee to vote in respect of the claim of any Holder in any such
proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may be
prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the ratable benefit of
the Holders of the Securities in respect of which such judgment has been
recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be applied
in the following order, at the date or dates fixed by the Trustee and, in case
of the distribution of such money on account of principal (or premium, if any)
or interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 607; and
SECOND: To the payment of the amounts then due and unpaid for principal of
(and premium, if any) and interest on the Securities in respect of which or
for the benefit of which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts due and payable
on such Securities for principal (and premium, if any) and interest,
respectively.
SECTION 507. Limitation on Suits.
No Holder of any Security of any series shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of a
continuing Event of Default with respect to the Securities of that series;
(2) the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series shall have made written request to the Trustee to
institute
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38
proceedings in respect of such Event of Default in its own name as Trustee
hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable indemnity
against the coats, expenses and liabilities to be incurred in compliance with
such request;
(4) the Trustee for 60 days after its receipt of such notice, request and
offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to
the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all such
Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal Premium and
Interest.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of (and premium, if any) and (subject to Section 307)
interest on such Security on the Stated Maturity or Maturities expressed in such
Security (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder; provided, however, that if a
series of Securities is held by a Dillard's Capital Trust, the Holder of such
Securities shall not give such consent without the consent of each holder of the
Capital Securities of such trust. Notwithstanding the foregoing, nothing in
this Section shall be deemed to impair the right of any holder of Capital
Securities to institute a Direct Action.
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39
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, subject to any determination in
such proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders and any rights of holders
of Capital Securities to institute Direct Action shall continue as though no
such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in the last paragraph of Section
306, no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders or to the holders of Capital Securities is intended to be exclusive
of any other right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right and remedy
given hereunder or now or hereafter existing at law or in equity or otherwise.
The assertion or employment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities or of
any holder of Capital Securities to exercise any right or remedy accruing upon
any Event of Default shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein. Every right and
remedy given by this Article or by law to the Trustee or to the Holders or to
the holders of Capital Securities may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders or by the
holders of Capital Securities, as the case may be.
SECTION 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding Securities of
any series shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee, with respect to the Securities of
such series, provided that
(1) such direction shall not be in conflict with any rule of law or with
this Indenture,
(2) the Trustee may take any other action deemed
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40
proper by the Trustee which is not inconsistent with such direction, and
(3) subject to the provisions of Section 601, the Trustee shall have the
right to decline to follow any such direction if the Trustee in good faith
shall, by a Responsible Officer or Officers of the Trustee, determine that the
proceeding so directed would involve the Trustee in personal liability.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the Outstanding
Securities of any series may on behalf of the Holders of all the Securities of
such series waive any past default hereunder with respect to such series and its
consequences, except a default
(1) in the payment of the principal of (or premium, if any) or interest on
any Security of such series, or
(2) in respect of a covenant or provision hereof which under Article Nine
cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such series affected;
provided, that if the Securities of such series are held by a Dillard's Capital
Trust or a trustee of such trust, such waiver shall not be effective as to such
Securities unless the holders of at least a majority in aggregate liquidation
amount of the Capital Securities of such trust shall have consented to such
waiver; provided, further, that if the consent of the Holder of each Outstanding
Security of such series is required, such waiver shall not be effective unless
each holder of the Capital Securities of such trust shall have consented to such
waiver.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by his
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted
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41
by the Company, to any suit instituted by the Trustee, to any suit instituted by
any Holder, or group of Holders, holding in the aggregate more than 10% in
principal amount of the Outstanding Securities of any series, or to any suit
instituted by any Holder for the enforcement of the payment of the principal of
(or premium, if any) or interest on any Security on or after the Stated Maturity
or Maturities expressed in such Security (or, in the case of redemption, on or
after the Redemption Date).
SECTION 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it will
not any time insist upon, or plead, or in any manner whatsoever claim or take
the benefit or advantage of, any stay or extension law wherever enacted, now or
at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such duties as
are specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may conclusively
rely, as to the truth of the statements and the correctness of the opinions
expressed therein, upon certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in the case of any such
certificates or opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not they conform to the requirements
of this Indenture.
(b) In case an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the Trustee
from liability for its own negligent
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42
action, its own negligent failure to act, or its own wilful misconduct, except
that
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in good
faith by a Responsible Officer, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts;
(3) the 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 a majority in principal amount of the Outstanding Securities of
any series, given pursuant to Section 512, relating to the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this Indenture
with respect to the Securities of such series; and
(4) no provision of this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability
is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
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43
SECTION 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with respect to
the Securities of any series, the Trustee shall transmit by mail to all Holders
of Securities of such series, as their names and addresses appear in the
Security Register, notice of such default hereunder known to the Trustee, unless
such default shall have been cured or waived; provided, however, that, except in
the case of a default in the payment of the principal of (or premium, if any) or
interest on any Security of such series or in the payment of any sinking fund
instalment with respect to Securities of such series, the Trustee shall be
protected in withholding such notice if and so long as the board of directors,
the executive committee or a trust committee of directors and/or Responsible
Officers of the Trustee in good faith determine that the withholding of such
notice is in the interests of the Holders of Securities of such series; and
provided, further, that in the case of any default of the character specified in
Section 501(4) with respect to Securities of such series, no such notice to
Holders shall be given until at least 30 days after the occurrence thereof. For
the purpose of this Section, the term "default" means any event which is, or
after notice or lapse of time or both would become, an Event of Default with
respect to Securities of such series.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be 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 or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order or as otherwise
expressly provided herein and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall deem
it desirable that a matter be proved or established prior to taking, suffering
or omitting any action hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its part, rely
upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice of such
counsel or any Opinion of Counsel 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 reliance thereon;
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44
(e) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any of
the Holders pursuant to this Indenture, unless such Holders shall have offered
to the Trustee reasonable security or indemnity against the costs, expenses
and liabilities which might be incurred by it in compliance with such request
or direction;
(f) the Trustee shall not be bound to make any 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
Trustee, in its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be entitled
to examine the books, records and premises of the Company, personally or by
agent or attorney; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the 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.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and the Trustee or any Authenticating Agent assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities. The Trustee or any
Authenticating Agent shall not be accountable for the use or application by the
Company of Securities or the proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
608 and 613, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
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45
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from other
funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable compensation 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);
(2) except as otherwise expressly provided herein, to reimburse the Trustee
upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad faith;
and
(3) to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or administration of
the trust or trusts hereunder, including the costs and expenses of defending
itself against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
As security for the performance of the obligations of the Company under this
Section the Trustee shall have a lien prior to the Securities upon all property
and funds held or collected by the Trustee as such, except funds held in trust
for the payment of principal of, premium, if any, or interest, if any, on
particular Securities.
SECTION 608. Disqualification; Conflicting Interests.
(a) If the Trustee has or shall acquire any conflicting interest, as
defined in this Section, with respect to the Securities of any series, it
shall, within 90 days after ascertaining that it has such conflicting
interest, either eliminate such conflicting interest or resign with respect to
the Securities of that series in the manner and with the effect hereinafter
specified in this Article.
(b) In the event that the Trustee shall fail to comply
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46
with the provisions of Subsection (a) of this Section with respect to the
Securities of any series, the Trustee shall, within 10 days after the
expiration of such 90-day period, transmit by mail to all Holders of
Securities of that series, as their names and addresses appear in the Security
Register, notice of such failure.
(c) For the purposes of this Section, the Trustee shall be deemed to have a
conflicting interest with respect to the Securities of any series if
(1) the Trustee is trustee under this Indenture with respect to the
Outstanding Securities of any series other than that series or is trustee
under another indenture under which any other securities, or certificates
of interest or participation in any other securities, of the Company are
outstanding, unless such other indenture is a collateral trust indenture
under which the only collateral consists of Securities issued under this
Indenture, provided that there shall be excluded from the operation of this
paragraph this Indenture with respect to the Securities of any series other
than that series, the Indenture dated as of October 1, 1985 between the
Company and the Trustee, under which the Company's 8_% Notes due April 15,
1996 have been issued and the Indenture dated as of October 1, 1986 between
the Company and the Trustee, under which the Company's 8% Notes due January
15, 1999 and 8_% Notes due November 1, 1993 have been issued and the
Indenture dated as of April 15, 1987 between the Company and the Trustee,
under which the Company's 9_% Notes due November 1, 1994 and 9 1/2% Notes
due January 15, 1998 have been issued or any other indenture or indentures
under which other securities, or certificates of interest or participation
in other securities, of the Company are outstanding, if
(i) this Indenture and such other indenture or indentures are
wholly unsecured and such other indenture or indentures are hereafter
qualified under the Trust Indenture Act, unless the Commission shall
have found and declared by order pursuant to Section 305(b) or Section
307(c) of the Trust Indenture Act that differences exist between the
provisions of this Indenture with respect to Securities of that series
and one or more other series or the provisions of such other indenture
or indentures which are so likely to involve a material conflict of
interest as to make it necessary in the public interest or for the
protection of investors to disqualify the Trustee from acting as such
under this Indenture with respect to the Securities of that series and
such other series or under such other indenture or indentures, or
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47
(ii) the Company shall have sustained the burden of proving, on
application to the Commission and after opportunity for hearing
thereon, that trusteeship under this Indenture with respect to the
Securities of that series and such other series or such other indenture
or indentures is not so likely to involve a material conflict of
interest as to make it necessary in the public interest or for the
protection of investors to disqualify the Trustee from acting as such
under this Indenture with respect to the Securities of that series and
such other series or under such other indenture or indentures;
(2) the Trustee or any of its directors or executive officers is an
obligor upon the Securities or an underwriter for the Company;
(3) the Trustee directly or indirectly controls or is directly or
indirectly controlled by or is under direct or indirect common control with
the Company or an underwriter for the Company ;
(4) the Trustee or any of its directors or executive officers is a
director, officer, partner, employee, appointee or representative of the
Company, or of an underwriter (other than the Trustee itself) for the
Company who is currently engaged in the business of underwriting, except
that (i) one individual may be a director of an executive officer, or both,
of the Trustee and a director of an executive officer, or both, of the
Company but may not be at the same time an executive officer of both the
Trustee and the Company; (ii) if and so long as the number of directors of
the Trustee in office is more than [nine], one additional individual may be
a director or an executive officer, or both, of the Trustee and a director
of the Company; and (iii) the Trustee may be designated by the Company or
by any underwriter for the Company to act in the capacity of transfer
agent, registrar, custodian, paying agent, fiscal agent, escrow agent or
depositary; or in any other similar capacity, or, subject to the provisions
of paragraph (1) of this Subsection, to act as trustee, whether under an
indenture or otherwise;
(5) 10% or more of the voting securities of the Trustee is beneficially
owned either by the Company or by any director, partner or executive
officer thereof, or 20% or more of such voting securities is beneficially
owned, collectively, by any two or more of such persons; or 10% or more of
the voting securities of the Trustee is beneficially owned either by an
underwriter for the Company or by any director, partner or executive
officer thereof, or is beneficially owned, collectively, by any two or more
such persons;
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(6) the Trustee is the beneficial owner of, or holds as collateral
security for an obligation which is in default (as hereinafter in this
Subsection defined), (i) 5% or more of the voting securities, or 10% or
more of any other class of security, of the Company not including the
Securities issued under this Indenture and securities issued under any
other indenture under which the Trustee is also trustee, or (ii) 10% or
more of any class of security of an underwriting for the Company;
(7) the Trustee is the beneficial owner of, or holds as collateral
security for an obligation which is in default (as hereinafter in this
Subsection defined), 5% or more of the voting securities of any person who,
to the knowledge of the Trustee, owns 10% or more of the voting securities
of, or controls directly or indirectly or is under direct or indirect
common control with, the Company;
(8) the Trustee is the beneficial owner of, or holds as collateral
security for an obligation which is in default (as hereinafter in this
Subsection defined), 10% or more of any class of security of any person
who, to the knowledge of the Trustee, owns 50% or more of the voting
securities of the Company; or
(9) the Trustee owns, on May 15 in any calendar year, in the capacity
of executor, administrator, testamentary or inter vivos trustee, guardian,
committee or conservator, or in any other similar capacity, an aggregate of
25% or more of the voting securities, or of any class of security, of any
person, the beneficial ownership of a specified percentage of which would
have constituted a conflicting interest under paragraph (6), (7) or (8) of
this Subsection. As to any such securities of which the Trustee acquired
ownership through becoming executor, administrator or testamentary trustee
of an estate which included them, the provisions of the preceding sentence
shall not apply, for a period of two years from the date of such
acquisition, to the extent that such securities included in such estate do
not exceed 25% of such voting securities or 25% of any such class of
security. Promptly after May 15 in each calendar year, the Trustee shall
make a check of its holdings of such securities in any of the above-
mentioned capacities as of such May 15. If the Company fails to make
payment in full of the principal of (or premium, if any) or interest on any
of the Securities when and as the same becomes due and payable, and such
failure continues for 30 days thereafter, the Trustee shall make a prompt
check of its holdings of such securities in any of the above-mentioned
capacities as of the date of the expiration of such 30-day period, and
after such date,
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49
notwithstanding the foregoing provisions of this paragraph, all such
securities so held by the Trustee, with sole or joint control over such
securities vested in it, shall, but only so long as such failure shall
continue, be considered as through beneficially owned by the Trustee for
the purposes of paragraphs (6), (7) and (8) of this Subsection.
The specification of percentages in paragraphs (5) to (9), inclusive, of this
Subsection shall not be construed as indicating that the ownership of such
percentages of the securities of a person is or is not necessary or sufficient
to constitute direct or indirect control for the purposes of paragraph (3) or
(7) of this Subsection.
For the purposes of paragraphs (6), (7), (8) and (9) of this Subsection only,
(i) the terms "security" and "securities" shall include only such securities as
are generally known as corporate securities, but shall not include any note or
other evidence of indebtedness issued to evidence an obligation to repay moneys
lent to a person by one or more banks, trust companies or banking firms, or any
certificate of interest or participation in any such note or evidence of
indebtedness; (ii) an obligation shall be deemed to be "in default" when a
default in payment of principal shall have continued for 30 days or more and
shall not have been cured; and (iii) the Trustee shall not be deemed to be the
owner or holder of (A) any security which it holds as collateral security, as
trustee or otherwise, for an obligation which is not in default as defined in
clause (ii) above, or (B) any security which it holds as collateral security
under this Indenture, irrespective of any default hereunder, or (C) any security
which it holds as agent for collection, or as custodian, escrow agent or
depositary, or in any similar representative capacity.
(d) For the purposes of this Section:
(1) The term "underwriter", when used with reference to the Company,
means every person who, within three years prior to the time as of which
the determination is made, has purchased from the Company with a view to,
or has offered or sold for the Company in connection with, the distribution
of any security of the Company outstanding at such time, or has
participated or has had a direct or indirect participation in any such
undertaking, or has participated or has had a participation in the direct
or indirect underwriting of any such undertaking, but such term shall not
include a person whose interest was limited to a commission from an
underwriter or dealer not in excess of the usual and customary
distributors' or sellers' commission.
(2) The term "director" means any director of a corporation or any
individual performing similar functions with respect to any organization,
whether
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50
incorporated or unincorporated.
(3) The term "person" means an individual, a corporation, a
partnership, an association, a joint-stock company, a trust, an
unincorporated organization or a government or political subdivision
thereof. As used in this paragraph, the term "trust" shall include only a
trust where the interest or interests of the beneficiary or beneficiaries
are evidenced by a security.
(4) The term "voting security" means any security presently entitling
the owner or holder thereof to vote in the direction or management of the
affairs of a person, or any security issued under or pursuant to any trust,
agreement or arrangement whereby a trustee or trustees or agent or agents
for the owner or holder of such security are presently entitled to vote in
the direction or management of the affairs of a person.
(5) The term "Company" means any obligor upon the Securities.
(6) The term "executive officer" means the president, every vice
president, every trust officer, the cashier, the secretary and the
treasurer of a corporation, and any individual customarily performing
similar functions with respect to any organization whether incorporated or
unincorporated, but shall not include the chairman of the board of
directors.
(e) The percentages of voting securities and other securities specified in
this Section shall be calculated in accordance with the following provisions:
(1) A specified percentage of the voting securities of the Trustee, the
Company or any other person referred to in this Section (each of whom is
referred to as a "person" in this paragraph) means such amount of the
outstanding voting securities of such person as entitles the holder or
holders thereof to cast such specified percentage of the aggregate votes
which the holders of all the outstanding voting securities of such person
are entitled to cast in the direction or management of the affairs of such
person.
(2) A specified percentage of a class of securities of a person means
such percentage of the aggregate amount of securities of the class
outstanding.
(3) The term "amount", when used in regard to securities, means the
principal amount if relating to evidences of indebtedness, the number of
shares if relating to capital shares and the number of units if relating to
any other kind of security.
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(4) The term "outstanding" means issued and not held by or for the
account of the issuer. The following securities shall not be deemed
outstanding within the meaning of this definition:
(i) securities of an issuer held in a sinking fund relating to
securities of the issuer of the same class;
(ii) securities of an issuer held in a sinking fund relating to
another class of securities of the issuer, if the obligation evidenced
by such other class of securities is not in default as to principal or
interest or otherwise;
(iii) securities pledged by the issuer thereof as security for an
obligation of the issuer not in default as to principal or interest or
otherwise; and
(iv) securities held in escrow if placed in escrow by the issuer
thereof;
provided, however, that any voting securities of an issuer shall be deemed
outstanding if any person other than the issuer is entitled to exercise the
voting rights thereof.
(5) A security shall be deemed to be of the same class as another
security if both securities confer upon the holder or holders thereof
substantially the same rights and privileges; provided, however, that, in
the case of secured evidences of indebtedness, all of which are issued
under a single indenture, differences in the interest rates or maturity
dates of various series thereof shall not be deemed sufficient to
constitute such series different classes and provided, further, that, in
the case of unsecured evidences of indebtedness, differences in the
interest rates or maturity dates thereof shall not be deemed sufficient to
constitute them securities of different classes, whether or not they are
issued under a single indenture.
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52
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States of
America, any State thereof or the District of Columbia, authorized under such
laws to exercise corporate trust powers, having a combined capital and surplus
of at least $50,000,000 subject to supervision or examination by Federal or
State authority. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, 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. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
SECTION 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 611 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee with
respect to Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series delivered to the Trustee and to the
Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608(a) after
written request therefor by the Company or by any Holder who has been
a bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609
and shall fail to resign after written request therefor by the Company
or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be
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53
appointed or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 514, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series) and shall comply with the
applicable requirements of Section 611. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
611, become the successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by the Company. If
no successor Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders and accepted appointment in the
manner required by Section 611, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities of such
series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
by mailing written notice of such event by first-class mail, postage prepaid, to
all Holders of Securities of such series as their names and addresses appear in
the Security Register. Each notice shall include the name of the successor
Trustee with respect to the Securities of such series and the address of its
Corporate Trust Office.
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54
SECTION 611. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
trust and that each such Trustee shall be trustee of a trust of same trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates.
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55
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
SECTION 613. Preferential Collection of Claims Against Company.
(a) Subject to Subsection (b) of this Section, if the Trustee shall
be or shall become a creditor, directly or indirectly, secured or unsecured, of
the Company within four months prior to a default, as defined in Subsection (c)
of this Section, or subsequent to such a default, then, unless and until such
default shall be cured, the Trustee shall set apart and hold in a special
account for the benefit of the Trustee individually, the Holders of the
Securities and the holders of other indenture securities, as defined in
Subsection (c) of this Section:
(1) an amount equal to any and all reductions in the amount due and
owing upon any claim as such creditor in respect of principal or interest,
effected after the beginning of such four months' period and valid as
against the Company and its other creditors, except any such reduction
resulting from the receipt or disposition of any property described in
paragraph (2) of this Subsection, or from the exercise of any right of set-
off which the Trustee could have exercised if a petition in bankruptcy had
been filed by or against the Company upon the date of such default; and
(2) all property received by the Trustee in respect of any claims as
such creditor, either as security therefor, or
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56
in satisfaction or composition thereof, or otherwise, after the beginning
of such four months' period, or an amount equal to the proceeds of any such
property, if disposed of, subject, however, to the rights, if any, of the
Company and its other creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the Trustee:
(A) to retain for its own account (i) payments made on account of
any such claim by any Person (other than the Company) who is liable
thereon, and (ii) the proceeds of the bona fide sale of any such claim by
the Trustee to a third Person, and (iii) distributions made in cash,
securities or other property in respect of claims filed against the Company
in bankruptcy or receivership or in proceedings for reorganization pursuant
to the Federal Bankruptcy Act or applicable State law;
(B) to realize, for its own account, upon any property held by it as
security for any such claim, if such property was so held prior to the
beginning of such four months' period;
(C) to realize, for its own account, but only to the extent of the
claim hereinafter mentioned, upon any property held by it as security for
any such claim, if such claim was created after the beginning of such four
months' period and such property was received as security therefor
simultaneously with the creation thereof, and if the Trustee shall sustain
the burden of proving that at the time such property was so received the
Trustee had no reasonable cause to believe that a default, as defined in
Subsection (c) of this Section, would occur within four months; or
(D) to receive payment on any claim referred to in paragraph (B) or
(C), against the release of any property held as security for such claim as
provided in paragraph (B) or (C), as the case may be, to the extent of the
fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property substituted
after the beginning of such four months' period for property held as security at
the time of such substitution shall, to the extent of the fair value of the
property released, have the same status as the property released, and, to the
extent that any claim referred to in any of such paragraphs is created in
renewal of or in substitution for or for the purpose of repaying or refunding
any pre-existing claim of the Trustee as such creditor, such claim shall have
the same status as such pre-existing claim.
If the Trustee shall be required to account, the funds and property
held in such special account and the proceeds thereof shall be apportioned among
the Trustee, the Holders and the holders of other indenture securities in such
manner that the
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57
Trustee, the Holders and the holders of other indenture securities realize, as a
result of payments from such special account and payments of dividends on claims
filed against the Company in bankruptcy or receivership or in proceedings for
reorganization pursuant to the Federal Bankruptcy Act or applicable State law,
the same percentage of their respective claims, figured before crediting to the
claim of the Trustee anything on account of the receipt by it from the Company
of the funds and property in such special account and before crediting to the
respective claims of the Trustee and the Holders and the holders of other
indenture securities dividends on claims filed against the Company in bankruptcy
or receivership or in proceedings for reorganization pursuant to the Federal
Bankruptcy Act or applicable State law, but after crediting thereon receipts on
account of the indebtedness represented by their respective claims from all
sources other than from such dividends and from the funds and property so held
in such special account. As used in this paragraph, with respect to any claim,
the term "dividends" shall include any distribution with respect to such claim,
in bankruptcy or receivership or proceedings for reorganization pursuant to the
Federal Bankruptcy Act or applicable State law, whether such distribution is
made in cash, securities or other property, but shall not include any such
distribution with respect to the secured portion, if any, of such claim. The
court in which such bankruptcy, receivership or proceedings for reorganization
is pending shall have jurisdiction (i) to apportion among the Trustee, the
Holders and the holders of other indenture securities, in accordance with the
provisions of this paragraph, the funds and property held in such special
account and proceeds thereof, or (ii) in lieu of such apportionment, in whole or
in part, to give to the provisions of this paragraph due consideration in
determining the fairness of the distributions to be made to the Trustee and the
Holders and the holders of other indenture securities with respect to their
respective claims, in which event it shall not be necessary to liquidate or to
appraise the value of any securities or other property held in such special
account or as security for any such claim, or to make a specific allocation of
such distributions as between the secured and unsecured portions of such claims,
or otherwise to apply the provisions of this paragraph as a mathematical
formula.
Any Trustee which has resigned or been removed after the beginning of
such four months' period shall be subject to the provisions of this Subsection
as though such resignation or removal had not occurred. If any Trustee has
resigned or been removed prior to the beginning of such four months' period, it
shall be subject to the provisions of this Subsection if and only if the
following conditions exist:
(i) the receipt of property or reduction of claim, which would have
given rise to the obligation to account, if such Trustee had continued as
Trustee, occurred after the beginning of such four months' period; and
(ii) such receipt of property or reduction of claim
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occurred within four months after such resignation or removal.
(b) There shall be excluded from the operation of Subsection (a) of
this Section a creditor relationship arising from:
(1) the ownership or acquisition of securities issued under any
indenture, or any security or securities having a maturity of one year or
more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court of
competent jurisdiction or by this Indenture, for the purpose of preserving
any property which shall at any time be subject to the lien of this
Indenture or of discharging tax liens or other prior liens or encumbrances
thereon, if notice of such advances and of the circumstances surrounding
the making thereof is given to the Holders at the time and in the manner
provided in this Indenture;
(3) disbursements made in the ordinary course of business in the
capacity of trustee under an indenture, transfer agent, registrar,
custodian, paying agent, fiscal agent or depositary, or other similar
capacity;
(4) an indebtedness created as a result of services rendered or
premises rented; or an indebtedness created as a result of goods or
securities sold in a cash transaction, as defined in Subsection (c) of this
Section;
(5) the ownership of stock or of other securities of a corporation
organized under the provisions of Section 25(a) of the Federal Reserve Act,
as amended, which is directly or indirectly a creditor of the Company; and
(6) the acquisition, ownership, acceptance or negotiation of any
drafts, bills of exchange, acceptances or obligations which fall within the
classification of self-liquidating paper, as defined in Subsection (c) of
this Section.
(c) For the purposes of this Section only:
(1) the term "default" means any failure to make payment in full of
the principal of or interest on any of the Securities or upon the other
indenture securities when and as such principal or interest becomes due and
payable;
(2) the term "other indenture securities" means securities upon
which the Company is an obligor outstanding under any other indenture (i)
under which the Trustee is also trustee, (ii) which contains provisions
substantially similar to the provisions of this Section, and (iii) under
which a default exists at the time of the apportionment of
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the funds and property held in such special account;
(3) the term "cash transaction" means any transaction in which full
payment for goods or securities sold is made within seven days after
delivery of the goods or securities in currency or in checks or other
orders drawn upon banks or bankers and payable upon demand;
(4) the term "self-liquidating paper" means any draft, bill of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company for the purpose of financing the purchase,
processing, manufacturing, shipment, storage or sale of goods, wares or
merchandise and which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the security is
received by the Trustee simultaneously with the creation of the creditor
relationship with the Company arising from the making, drawing, negotiation
or incurring of the draft, bill of exchange, acceptance or obligation;
(5) the term "Company" means any obligor upon the Securities; and
(6) the term "Federal Bankruptcy Act" means the Bankruptcy Act or
Title 11 of the United States Code.
SECTION 614. Appointment of Authenticating Agent.
At any time when any of the Securities remains Outstanding the
Trustee may appoint an Authenticating Agent or Agents with respect to one or
more series of Securities which shall be authorized to act on behalf of the
Trustee to authenticate Securities of such series issued upon exchange,
registration of transfer or partial redemption thereof or pursuant to Section
306, and Securities so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if authenticated
by the Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business
under the laws of the United States of America, any State thereof or the
District of Columbia, authorized under such laws to act as Authenticating Agent,
having a combined capital and surplus of not less than $50,000,000 and subject
to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for
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60
the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders of
Securities of the series with respect to which such Authenticating Agent will
serve, as their names and addresses appear in the Security Register. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 607.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternate
certificate of authentication in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK, as Trustee
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By
---------------------------
As Authenticating Agent
By
---------------------------
Authorized Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee with
respect to Securities of each series
(a) semi-annually, not more than 15 days after the Regular Record
Date for the payment of interest in respect of the Securities of such
series, and on dates to be determined pursuant to Section 301 with respect
to Securities of any series which do not bear interest, a list, in such
form as the Trustee may reasonably require, of the names and addresses of
the Holders of such series as of a date not more than 15 days prior to the
time such information is furnished, and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the
time such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
SECTION 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) If three or more Holders (herein referred to as "applicants")
apply in writing to the Trustee, and furnish to the Trustee reasonable proof
that each such applicant has owned a Security for a period of at least six
months preceding the date of such application, and such application states that
the applicants desire to communicate with other Holders with respect
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to their rights under this Indenture or under the Securities and is accompanied
by a copy of the form of proxy or other communication which such applicants
propose to transmit, then the Trustee shall, within five business days after the
receipt of such application, at its election, either
(i) afford such applicants access to the information preserved
at the time by the Trustee in accordance with Section 702(a), or
(ii) inform such applicants as to the approximate number of
Holders whose names and addresses appear in the information preserved at
the time by the Trustee in accordance with Section 702(a), and as to the
approximate cost of mailing to such Holders the form of proxy or other
communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder whose name and address appear in the information
preserved at the time by the Trustee in accordance with Section 702(a) a copy of
the form of proxy or other communication which is specified in such request,
with reasonable promptness after a tender to the Trustee of the material to be
mailed and of payment, or provision for the payment, of the reasonable expenses
of mailing, unless within five days after such tender the Trustee shall mail to
such applicants and file with the Commission, together with a copy of the
material to be mailed, a written statement to the effect that, in the opinion of
the Trustee, such mailing would be contrary to the best interest of the Holders
or would be in violation of applicable law. Such written statement shall specify
the basis of such opinion. If the Commission, after opportunity for a hearing
upon the objections specified in the written statement so filed, shall enter an
order refusing to sustain any of such objections or if, after the entry of an
order sustaining or more of such objections, the Commission shall find, after
notice and opportunity for hearing, that all the objections so sustained have
been met and shall enter an order so declaring, the Trustee shall mail copies of
such material to all such Holders with reasonable promptness after the entry of
such order and the renewal of such tender; otherwise the Trustee shall be
relieved of any obligation or duty to such applicants respecting their
application.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of them shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the Holders
in accordance with Section 702(b), regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under Section 702(b).
SECTION 703. Reports by Trustee.
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(a) Within 60 days after _______ 15 of each year commencing with the
year 1998, the Trustee shall transmit by mail to all Holders, as their names and
addresses appear in the Security Register, a brief report dated as of such
________ 15 with respect to:
(1) its eligibility under Section 609 and its qualifications under
Section 608, or in lieu thereof, if to the best of its knowledge it has
continued to be eligible and qualified under said Sections, a written
statement to such effect;
(2) the character and amount of any advances (and if the Trustee
elects so to state, the circumstances surrounding the making thereof) made
by the Trustee (as such) which remain unpaid on the date of such report,
and for the reimbursement of which it claims or may claim a lien or charge,
prior to that of the Securities, on any property or funds held or collected
by it as Trustee, except that the Trustee shall not be required (but may
elect) to report such advances if such advances so remaining unpaid
aggregate not more than 1/2 of 1% of the principal amount of the Securities
Outstanding on the date of such report;
(3) the amount, interest rate and maturity date of all other
indebtedness owing by the Company (or by any other obligor on the
Securities) to the Trustee in its individual capacity, on the date of such
report, with a brief description of any property held as collateral
security therefor, except an indebtedness based upon a creditor
relationship arising in any manner described in Section 613(b)(2), (3), (4)
or (6);
(4) the property and funds, if any, physically in the possession of
the Trustee as such on the date of such report;
(5) any additional issue of Securities which the Trustee has not
previously reported; and
(6) any action taken by the Trustee in the performance of its duties
hereunder which it has not previously reported and which in its opinion
materially affects the Securities, except action in respect of a default,
notice of which has been or is to be withheld by the Trustee in accordance
with Section 602.
(b) The Trustee shall transmit by mail to all Holders, as their names
and addresses appear in the Security Register, a brief report with respect to
the character and amount of any advances (and if the Trustee elects so to state,
the circumstances surrounding the making thereof) made by the Trustee (as such)
since the date of the last report transmitted pursuant to Subsection (a) of this
Section (or if such report has yet been so transmitted, since the date of
execution of this instrument)
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for the reimbursement of which it claims or may claim a lien or charge, prior to
that of the Securities, on property or funds held or collected by it as Trustee
and which it has not previously reported pursuant to this Subsection, except
that the Trustee shall not be required (but may elect) to report such advances
if such advances remaining unpaid at any time aggregate 10% or less of the
principal amount of the Securities Outstanding at such time, such report to be
transmitted within 90 days after such time.
(c) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which any Securities are listed, with the Commission and with the Company. The
Company will notify the Trustee when any Securities are listed on any stock
exchange.
SECTION 704. Reports by Company.
The Company shall:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual reports
and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Company may be required to file
with the Commission pursuant to Section 13 or Section 15(d) of the
Securities and Exchange Act of 1934; or, if the Company is not required to
file information, documents or reports pursuant to either of said Sections,
then it shall file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
of the supplementary and periodic information, documents and reports which
may be required pursuant to Section 13 of the Securities and Exchange Act
of 1934 in respect of a security listed and registered on a national
securities exchange as may be prescribed from time to time in such rules
and regulations;
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by
the Company with the conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations; and
(3) transmit by mail to all Holders, as their names and addresses
appear in the Security Register, within 30 days after the filing thereof
with the Trustee, such summaries of any information, documents and reports
required to be filed by the Company pursuant to paragraphs (1) and (2) of
this Section as may be required by rules and regulations prescribed from
time to time by the Commission.
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ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other
corporation or convey, transfer or lease its properties and assets substantially
as an entirety to any Person, and the Company shall not permit any Person to
consolidate with or merge into the Company or convey, transfer or lease its
properties and assets substantially as an entirety to the Company, unless:
(1) in case the Company shall consolidate with or merge into another
corporation or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, the corporation formed by such
consolidation or into which the Company is merged or the Person which
acquires by conveyance or transfer, or which leases, the properties and
assets of the Company substantially as an entirety shall be a corporation
organized and existing under the laws of the United States of America, any
State thereof or the District of Columbia and shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee, in
form satisfactory to the Trustee, the due and punctual payment of the
principal of (and premium, if any) and interest on all the Securities and
the performance of every covenant of this Indenture on the part of the
Company to be performed or observed;
(2) immediately after giving effect to such transaction and treating
any indebtedness which becomes an obligation of the Company or a Subsidiary
as a result of such transaction as having been incurred by the Company or
such Subsidiary at the time of such transaction, no Event of Default, and
no event which, after notice or lapse of time or both, would become an
Event of Default, shall have happened and be continuing;
(3) if, as a result of any such consolidation or merger or such
conveyance, transfer or lease, properties or assets of the Company would
become subject to a mortgage, pledge, lien, security interest or other
encumbrance which would not be permitted by this Indenture, the Company or
such successor corporation or Person, as the case may be, shall take such
steps as shall be necessary effectively to secure the Securities equally
and ratably with (or prior to) all indebtedness secured thereby; and
(4) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a supplemental
indenture is required in connection with such transaction, such
supplemental indenture complies with this Article and that
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all conditions precedent herein provided for relating to such transaction
have been complied with.
SECTION 802. Successor Corporation Substituted.
Upon any consolidation by the Company with or merger by the Company
into any other corporation or any conveyance, transfer or lease of the
properties and assets of the Company substantially as an entirety in accordance
with Section 801, the successor corporation formed by such consolidation or into
which the Company is merged or to which such conveyance, transfer or lease is
made shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture with the same effect as if such
successor corporation had been named as the Company herein, and thereafter,
except in the case of a lease, the predecessor corporation shall be relieved of
all obligations and covenants under this Indenture and the Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to the Company
and the assumption by any such successor of the covenants of the Company
herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the
Company; or
(3) to add any additional Events of Default; or
(4) to add to or change any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal,
and with or without interest coupons; or
(5) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination
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shall become effective only when there is no Security Outstanding of any
series created prior to the execution of such supplemental indenture which
is entitled to the benefit of such provision; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 611(b); or
(9) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture, provided such action shall not adversely affect the
interests of the Holders of Securities of any series in any material
respect.
SECTION 902. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than 66 2/3% in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
instalment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or any premium
payable upon the redemption thereof, or reduce the amount of the principal
of an Original Issue Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section
502, or change any Place of Payment where, or the coin or currency in
which, any Security or any premium or the interest thereon is payable, or
impair the right to institute suit for the enforcement of any such payment
on or after the Stated Maturity thereof (or, in the case of redemption, on
or after the Redemption Date), or
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(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or
(3) modify any of the provisions of this Section, or Section 513,
except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security affected thereby;
provided, however, that this clause shall not be deemed to require the
consent of any Holder with respect to changes in the references to "the
Trustee" and concomitant changes in this Section, or the deletion of this
proviso, in accordance with the requirements of Sections 611(b) and 901(8);
provided, further, that, if the Securities of such series are held by a
Dillard's Capital Trust or a trustee of such trust, so long as any of the
Capital Securities of such trust remain outstanding, no modification may be made
that adversely affects the holders of such Capital Securities in any material
respect, and no termination of this Indenture may occur, without the prior
consent of the holders of at least a majority of the aggregate liquidation
amount of the outstanding Capital Securities of such trust unless and until the
principal of such Securities and all accrued and unpaid interest thereon have
been paid in full, and none of the modifications described in clauses (1) and
(2) above may be made without the prior written consent of all the holders of
Capital Securities of such Dillard's Capital Trust. In addition, the Company
may not amend the Indenture to remove the rights of holders of Capital
Securities of a Dillard's Capital Trust to institute a Direct Action without the
prior written consent of all the holders of Capital Securities of such trust or
to remove the obligation to obtain the consent of such holders of Capital
Securities in accordance with this Section, without the consent of the required
percentage of holders of the Capital Securities of such Trust.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section
to approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
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In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties, immunities or liabilities under this Indenture or
otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
SECTION 907. Subordination Unimpaired.
This Indenture may not be amended to alter the subordination of any
of the Outstanding Securities without the written consent of each holder of
Senior Indebtedness then outstanding that would be adversely affected thereby.
ARTICLE TEN
COVENANTS
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SECTION 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and premium,
if any) and interest on the Securities of that series in accordance with the
terms of the Securities and this Indenture.
The interest on Securities (together with any additional amounts
payable pursuant to the terms of such Securities) shall be payable only to or
upon the written order of the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest and, at the option of the Company, may be paid by
wire transfer or by mailing checks for such interest payable to or upon the
written order of such Holders at their last addresses as they appear on the
registry books of the Company; provided, however, that, if the Securities of
such series are held by a Dillard's Capital Trust or a trustee of such trust and
a holder of a Capital Security of such trust brings a successful Direct Action
with respect to any interest payable on such Securities, such interest will be
payable directly to such holder. In such event, the Company will have the right
to set-off such payment to such holder against its obligation to pay interest on
such Securities to such Dillard's Capital Trust.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Company in respect of the Securities of that series and this Indenture
may be served. The Company will give prompt written notice to the Trustee of
the location, and any change in the location, of such office or agency. If at
any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligations to maintain an office
or agency in each Place of Payment for Securities of any series for such
purposes. The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
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SECTION 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest on any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal (and premium, if any) or interest
so becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the Trustee of its
action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, prior to each due date of the principal of (and
premium, if any) or interest on any Securities of that series, deposit with a
Paying Agent a sum sufficient to pay the principal (and premium, if any) or
interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal, premium or interest, and (unless such Paying
Agent is the Trustee) the Company will promptly notify the Trustee of its action
or failure so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of
(and premium, if any) or interest on Securities of that series in trust for
the benefit of the Persons entitled thereto until such sums shall be paid
to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of that series) in the making of any
payment of principal (and premium, if any) or interest on the Securities of
that series; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
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Any money deposited with the Trustee or any Paying Agent, or received
by the Trustee in respect of obligations deposited with the Trustee pursuant to
Section 403 or 1010, or then held by the Company, in trust for the payment of
the principal of (and premium, if any) or interest on any Security of any series
and remaining unclaimed for two years after such principal (and premium, if any)
or interest has become due and payable shall be paid to the Company on Company
Request, or (if then held by the Company) shall be discharged from such trust;
and the Holder of such Security shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all liability of the
Trustee or such Paying Agent with respect to such trust money, and all liability
of the Company as trustee thereof, shall thereupon cease; provided, however,
that the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in a
newspaper published in the English language, customarily published on each
Business Day and of general circulation in the Borough of Manhattan, The City
and State of New York, notice that such money remains unclaimed and that, after
a date specified therein, which shall not be less than 30 days from the date of
such publication, any unclaimed balance of such money then remaining will be
repaid to the Company.
SECTION 1004. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after the
end of each fiscal year of the Company ending after the date hereof, an
Officers' Certificate stating whether or not to the best knowledge of the
signers thereof the Company is in default in the performance and observance of
any of the terms, provisions and conditions of this Indenture and if the Company
shall be in default specifying all such defaults and the nature and status
thereof of which they may have knowledge.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for Securities of any series)
in accordance with this Article.
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SECTION 1102. Election to Redeem: Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution. In case of any redemption at the election of
the Company of less than all the Securities of any series, the Company shall, at
least 60 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee of such
Redemption Date and of the principal amount of Securities of such series to be
redeemed. In the case of any redemption of Securities prior to the expiration of
any restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction.
SECTION 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of portions (equal to the minimum authorized denomination for
Securities of that series or any integral multiple thereof) of the principal
amount of Securities of such series of a denomination larger than the minimum
authorized denomination for Securities of that series.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at his address appearing in
the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
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(3) if less than all the Outstanding Securities of any series are to
be redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the particular Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said date,
(5) the place or places where such Securities are to be surrendered
for payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 1105. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities
so to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date: provided, however, that installments of interest whose
Stated Maturity is on or prior to the Redemption Date shall be payable to the
Holders of such Securities, or one or more Predecessor Securities, registered as
such at the close of business on the relevant Record Dates according to their
terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
<PAGE>
75
SECTION 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder thereof
or his attorney duly authorized in writing), and the Company shall execute, and
the Trustee shall authenticate and deliver to the Holder of such Security
without service charge, a new Security or Securities of the same series and of
like tenor, of any authorized denomination as requested by such Holder, in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking
fund for the retirement of Securities of a series except as otherwise specified
as contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Securities of any series,
the cash amount of any sinking fund payment may be subject to reduction as
provided in Section 1202. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series
(other than any previously called for redemption) and (2) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series; provided that such securities have not been previously so credited. Such
Securities shall be received and credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for
<PAGE>
76
redemption through operation of the sinking fund and the amount of such sinking
fund payment shall be reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 1202 and the basis for such credit and will also deliver to
the Trustee any Securities to be so delivered. Not less than 30 days before each
such sinking fund payment date the Trustee shall select the Securities to be
redeemed upon such sinking fund payment date in the manner specified in Section
1103 and cause notice of the redemption thereof to be given in the name of and
at the expense of the Company in the manner provided in Section 1104. Such
notice having been duly given, the redemption of such Securities shall be made
upon the terms and in the manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
SUBORDINATION
SECTION 1301. Securities Subordinated to Senior Indebtedness.
The Company covenants and agrees, and each Holder of a Security, by
his acceptance thereof, likewise covenants and agrees, that the indebtedness
represented by the Securities and the payment of the principal of and interest
on each and all of the Securities is hereby expressly subordinated, to the
extent and in the manner hereinafter set forth, in right of payment to the prior
payment in full of Senior Indebtedness.
In the event (a) of any insolvency or bankruptcy proceedings or any
receivership, liquidation, reorganization or other similar proceedings in
respect of the Company or a substantial part of its property, or of any
proceedings for liquidation, dissolution or other winding up of the Company,
whether or not involving insolvency or bankruptcy, or (b) subject to the
provisions of Section 1302 that (i) a default shall have occurred with respect
to the payment of principal of or interest on or other monetary amounts due and
payable on any Senior Indebtedness, or (ii) there shall have occurred an event
of default (other than a default in the payment of principal or interest or
other monetary amounts due and payable) in respect of any Senior Indebtedness,
as defined therein or in the instrument under which the same is outstanding,
permitting the holder or holders thereof to accelerate the maturity thereof
(with notice or lapse of time, or both), and such event of default shall have
continued beyond the period of grace, if any, in respect thereof, and, in the
cases of subclauses (i) and (ii) of this clause (b),
<PAGE>
77
such default or event of default shall not have been cured or waived or shall
not have ceased to exist, or (c) that the principal of and accrued interest on
the Securities of any series shall have been declared due and payable pursuant
to Section 501 and such declaration shall not have been rescinded and annulled
as provided in Section 501 then:
(i) the holders of all Senior Indebtedness shall first be
entitled to receive payment of the full amount due thereon, or provision
shall be made for such payment in money or money's worth, before the
Holders of any of the Securities are entitled to receive a payment on
account of the principal of or interest on the indebtedness evidenced by
the Securities, including, without limitation, any payments made pursuant
to Article 12;
(ii) any payment by or distribution of assets of, the Company of
any kind or character, whether in cash, property or securities, to which
the Holders of any of the Securities or the Trustee would be entitled
except for the provisions of this Article shall be paid or delivered by the
person making such payment or distribution, whether a trustee in
bankruptcy, a receiver or liquidating trustee or otherwise, directly to the
holders of such Senior Indebtedness or their representative or
representatives or to the trustee or trustees under any indenture under
which any instruments evidencing any of such Senior Indebtedness may have
been issued, ratably according to the aggregate amounts remaining unpaid on
account of such Senior Indebtedness held or represented by each, to the
extent necessary to make payment in full of all Senior Indebtedness
remaining unpaid after giving effect to any concurrent payment or
distribution (or provision therefor) to the holders of such Senior
Indebtedness, before any payment or distribution is made to the holders of
the indebtedness evidenced by the Securities or to the Trustee under this
instrument; and
(iii) in the event that, notwithstanding the foregoing, any
payment by, or distribution of assets of, the Company of any kind or
character, whether in cash, property or securities, in respect of principal
of or interest on the Securities or in connection with any repurchase by
the Company of the Securities, shall be received by the Trustee or the
Holders of any of the Securities before all Senior Indebtedness is paid in
full, or provision made for such payment in money or money's worth, such
payment or distribution in respect of principal of or interest on the
Securities or in connection with any repurchase by the Company of the
Securities shall be paid over to the holders of such Senior Indebtedness or
their representative or representatives or to the trustee or trustees under
any indenture under which any instruments evidencing any such Senior
Indebtedness may have been issued, ratably as aforesaid, for application to
the payment of all Senior Indebtedness remaining unpaid until all such
Senior
<PAGE>
78
Indebtedness shall have been paid in full, after giving effect to any
concurrent payment or distribution (or provision therefor) to the holders
of such Senior Indebtedness.
Notwithstanding the foregoing, at any time after the 91 st day
following the date of deposit of cash or, in the case of Securities payable only
in Dollars, U.S. Government Obligations pursuant to Section 401 (provided all
other conditions set out in such Section shall have been satisfied) the funds so
deposited and any interest thereon will not be subject to any rights of holders
of Senior Indebtedness including, without limitation, those arising under this
Article 13.
SECTION 1302. Disputes with Holders of Certain Senior Indebtedness.
Any failure by the Company to make any payment on or perform any
other obligation under Senior Indebtedness, other than any indebtedness incurred
by the Company or assumed or guaranteed, directly or indirectly, by the Company
for money borrowed (or any deferral, renewal, extension or refunding thereof) or
any indebtedness or obligation as to which the provisions of this Section shall
have been waived by the Company in the instrument or instruments by which the
Company incurred, assumed, guaranteed or otherwise created such indebtedness or
obligation, shall not be deemed a default or event of default under Section
1301(b) if (a) the Company shall be disputing its obligation to make such
payment or perform such obligation and (b) either (i) no final judgment relating
to such dispute shall have been issued against the Company which is in full
force and effect and is not subject to further review, including a judgment that
has become final by reason of the expiration of the time within which a party
may seek further appeal or review, and (ii) in the event of a judgment that is
subject to further review or appeal has been issued, the Company shall in good
faith be prosecuting an appeal or other proceeding for review and a stay of
execution shall have been obtained pending such appeal or review.
SECTION 1303. Subrogation.
Subject to the payment in full of all Senior Indebtedness, the
Holders of the Securities shall be subrogated (equally and ratably with the
holders of all obligations of the Company which by their express terms are
subordinated to Senior Indebtedness of the Company to the same extent as the
Securities are subordinated and which are entitled to like rights of
subrogation) to the rights of the holders of Senior Indebtedness to receive
payments or distributions of cash, property or securities of the Company
applicable to the Senior Indebtedness until all amounts owing on the Securities
shall be paid in full, and as between the Company, its creditors other than
holders of such Senior Indebtedness and the Holders, no such payment or
distribution made to the holders of Senior Indebtedness by virtue
<PAGE>
79
of this Article that otherwise would have been made to the Holders shall be
deemed to be a payment by the Company on account of such Senior Indebtedness, it
being understood that the provisions of this Article are and are intended solely
for the purpose of defining the relative rights of the Holders, on the one hand,
and the holders of Senior Indebtedness, on the other hand.
SECTION 1304. Obligation of Company Unconditional.
Nothing contained in this Article or elsewhere in this Indenture or
in the Securities is intended to or shall impair, as among the Company, its
creditors other than the holders of Senior Indebtedness and the Holders, the
obligation of the Company, which is absolute and unconditional, to pay to the
Holders the principal of and interest on the Securities as and when the same
shall become due and payable in accordance with their terms, or is intended to
or shall affect the relative rights of the Holders and creditors of the Company
other than the holders of Senior Indebtedness, nor shall anything herein or
therein prevent the Trustee or any Holder from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture, subject to the
rights, if any, under this Article of the holders of Senior Indebtedness in
respect of cash, property or securities of the Company received upon the
exercise of any such remedy.
Upon payment or distribution of assets of the Company referred to in
this Article, the Trustee and the Holders shall be entitled to rely upon any
order or decree made by any court of competent jurisdiction in which any such
dissolution, winding up, liquidation or reorganization proceeding affecting the
affairs of the Company is pending or upon a certificate of the trustee in
bankruptcy, receiver, assignee for the benefit of creditors, liquidating trustee
or agent or other person making any payment or distribution, delivered to the
Trustee or to the Holders, for the purpose of ascertaining the persons entitled
to participate in such payment or distribution, the holders of the Senior
Indebtedness and other indebtedness of the Company, the amount thereof or
payable thereon, the amount paid or distributed thereon and all other facts
pertinent thereto or to this Article.
SECTION 1305. Payments on Securities Permitted.
Nothing contained in this Article or elsewhere in this Indenture or
in the Securities shall affect the obligations of the Company to make, or
prevent the Company from making, payment of the principal of or interest on the
Securities in accordance with the provisions hereof and thereof, except as
otherwise provided in this Article.
SECTION 1306. Effectuation of Subordination by Trustee
Each holder of Securities, by his acceptance thereof, authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the
<PAGE>
80
subordination provided in this Article and appoints the Trustee his attorney-in-
fact for any and all such purposes.
SECTION 1307. Knowledge of Trustee.
Notwithstanding the provisions of this Article or any other
provisions of this Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts that would prohibit the making of any payment of
moneys to or by the Trustee, or the taking of any other action by the Trustee,
unless and until the Trustee shall have received written notice thereof mailed
or delivered to the Trustee at its Corporate Trust Office from the Company, any
Holder, any paying agent or the holder or representative of any class of Senior
Indebtedness; provided that if at least three Business Days prior to the date
upon which by the terms hereof any such moneys may become payable for any
purpose (including, without limitation, the payment of the principal or interest
on any Security) the Trustee shall not have received with respect to such moneys
the notice provided for in this Section, then, anything herein contained to the
contrary notwithstanding, the Trustee shall have full power and authority to
receive such moneys and to apply the same to the purpose for which they were
received and shall not be affected by any notice to the contrary that may be
received by it within three Business Days prior to or on or after such date.
SECTION 1308. Trustee May Hold Senior Indebtedness.
The Trustee shall be entitled to all the rights set forth in this
Article with respect to any Senior Indebtedness at the time held by it, to the
same extent as any other holder of Senior Indebtedness, and nothing in Section
604 or elsewhere in this Indenture shall deprive the Trustee of any of its
rights as such holder.
SECTION 1309. Rights of Holders of Senior Indebtedness Not Impaired.
No right of any present or future holder of any Senior Indebtedness
to enforce the subordination herein shall at any time or in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any noncompliance by the Company with the terms, provisions and covenants
of this Indenture, regardless of any knowledge thereof any such holder may have
or be otherwise charged with.
With respect to the holders of Senior Indebtedness, (a) the duties
and obligations of the Trustee shall be determined solely by the express
provisions of this Indenture, (b) the Trustee shall not be liable except for the
performance of such duties and obligations as are specifically set forth in this
Indenture, (c) no implied covenants or obligations shall be read into this
Indenture against the Trustee and (d) the Trustee shall not be deemed to be a
fiduciary as to such holders.
<PAGE>
81
SECTION 1310. Article Applicable to Paying Agents.
In case at any time any paying agent other than the Trustee shall
have been appointed by the Company and be then acting hereunder, the term
"Trustee" as used in this Article shall in such case (unless the context shall
require otherwise) be construed as extending to and including such paying agent
within its meaning as fully for all intents and purposes as if such paying agent
were named in this Article in addition to or in place of the Trustee, provided,
however, that Sections 1307 and 1308 shall not apply to the Company if it acts
as its own paying agent.
<PAGE>
82
SECTION 1311. Trustee; Compensation Not Prejudiced.
Nothing in this Article shall apply to claims of, or payments to, the
Trustee pursuant to Section 607.
* * *
This instrument may be executed in any number of counterparts, each
of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
DILLARD'S, INC.
By
---------------------------
Attest:
[SEAL]
THE CHASE MANHATTAN BANK
By
---------------------------
Attest:
[SEAL]
<PAGE>
83
STATE OF ARKANSAS )
) ss.:
COUNTY OF PULASKI )
On the _____ day of ____, 1998, before me personally came James I.
Freeman, to me known, who, being by me duly sworn, did depose and say that he is
Vice President of Dillard's, Inc., one of the corporations described in and
which executed the foregoing instrument: that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation; and that he signed his name thereto by like authority.
----------------------------------
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ____ day of ___, 1998, before me personally came M. Kelly, to
me known, who, being by me duly sworn, did depose and say that she is a Trust
Officer of The Chase Manhattan Bank, one of the corporations described in and
which executed the foregoing instrument: that she knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation; and that she signed his name thereto by like authority.
----------------------------------
---------------------------
Notary Public, State of New York
No.
--------------------------
Qualified in
----------------------
Certificate filed in
--------------
Commission Expires
----------------
<PAGE>
EXHIBIT 4-t
SUBORDINATED DEFERRABLE INTEREST DEBENTURE
REGISTERED REGISTERED
NO. ___ $___________
CUSIP: _________
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT
IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN
DEFINITIVE REGISTERED FORM, THIS CERTIFICATE MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY DTC TO A NOMINEE OF DTC OR BY A NOMINEE OF DTC TO DTC OR ANY OTHER
NOMINEE OF DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A
NOMINEE OF SUCH SUCCESSOR DEPOSITORY.
<PAGE>
2
DILLARD'S, INC.
SUBORDINATED DEFERRABLE INTEREST DEBENTURE
Dillard's, Inc., a Delaware corporation (together with its successors and
assigns, the "ISSUER"), for value received, hereby promises to pay to The Chase
Manhattan Bank, as Property Trustee (the "PROPERTY TRUSTEE," which term includes
any successor Property Trustee for Dillard's Capital Trust ____) for Dillard's
Capital Trust ___, a statutory business trust formed under the laws of the State
of Delaware (the "Issuer Trust"), or registered assignees, the principal sum of
$________ (UNITED STATES DOLLARS ________________) on ________ ____, _____, such
date, as it may be advanced as set forth below, the "STATED MATURITY," and to
pay interest thereon at the annual rate of ____% from and including _______
____, 1998, until the principal hereof is paid or duly made available for
payment (except as provided below) payable quarterly in arrears on the _____ day
of ________ and the ______ day of __________, ________ and _________ of each
year (each an "INTEREST PAYMENT DATE"), commencing _______ ____, 1998.
Interest on this Debenture will accrue from and including the most recent
Interest Payment Date to which interest has been paid or duly provided for or,
if no interest has been paid or duly provided for, from and including ________
____, 1998, until, but excluding the date the principal hereof has been paid or
duly made available for payment. The interest so payable, and punctually paid
or duly provided for, on any Interest Payment Date will, subject to certain
exceptions described herein, be paid to the person in whose name this Debenture
(or one or more predecessor Debentures) is registered at the close of business
on the 15th calendar day (whether or not a Business Day) next preceding such
Interest Payment Date (each such date a "RECORD DATE"). As used herein,
"BUSINESS DAY" means any day, other than a Saturday or Sunday, that is not a day
on which banking institutions in the City of New York are authorized or required
by law or executive order to remain closed. A Holder of U.S.$1,000,000 or more
in aggregate principal amount of Debentures having the same Interest Payment
Date, the interest on which is payable in U.S. dollars, shall be entitled to
receive payments of interest, other than interest due at maturity or on any date
of redemption or repayment, by wire transfer of immediately available funds if
appropriate wire transfer instructions have been received by the Paying Agent in
writing not less than 15 calendar days prior to the applicable Interest Payment
Date.
Reference is hereby made to the further provisions of this Debenture set forth
on the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place, including, without limitation, the
provisions relating to the subordination of this Debenture to the Issuer's
Senior Indebtedness, as defined on the reverse hereof.
Unless the certificate of authentication hereon has been executed by the
Trustee by manual signature, this Debenture shall not be entitled to any benefit
under the Subordinated Indenture, as defined on the reverse hereof, or be valid
or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this Debenture to be duly executed.
DATED: ________ _____, 1998 DILLARD'S, INC.
By:________________________________
<PAGE>
3
Name:
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Debentures referred
to in the within-mentioned
Subordinated Indenture.
DATED: ________ ____, 1998
THE CHASE MANHATTAN BANK,
as Trustee
By:__________________________________
Authorized Signatory
<PAGE>
4
[REVERSE OF SECURITY]
This debenture is one of a duly authorized issue of _____% Subordinated
Debentures due _________ _____, _____ (the "DEBENTURES") of the Issuer. The
Debentures are issuable under a Subordinated Indenture, dated as of ______ ____,
1998, between Dillard's, Inc. (the "ISSUER") and The Chase Manhattan Bank, as
Trustee (the "TRUSTEE," which term includes any successor trustee under the
Subordinated Indenture) (the " SUBORDINATED INDENTURE"), to which Subordinated
Indenture reference is hereby made for a statement of the respective rights,
limitations of rights, duties and immunities of the Issuer, the Trustee and
holders of the Debentures and the terms upon which the Debentures are, and are
to be, authenticated and delivered. The Issuer has appointed The Chase
Manhattan Bank at its corporate trust office in The City of New York as the
paying agent (the "PAYING AGENT," which term includes any additional or
successor Paying Agent appointed by the Issuer) with respect to the Debentures.
To the extent not inconsistent herewith, the terms of the Subordinated Indenture
are hereby incorporated by reference herein. Capitalized terms not otherwise
defined herein have the meaning given to such terms in the Subordinated
Indenture.
This Debenture will not be subject to any sinking fund and, except as provided
below, will not be redeemable or subject to repayment at the option of the
holder prior to its Stated Maturity.
This Debenture may be redeemed at the option of the Issuer (i) on or after
______ ___, ______ in whole at any time or in part from time to time and (ii)
prior to ________ ___, ____, in whole (but not in part) at any time within 90
days following the occurrence and continuation of a Tax Event or an Investment
Company Event (the "90-DAY PERIOD"), in each case at a redemption price equal to
the accrued and unpaid interest on the Debentures so redeemed to the date fixed
for redemption, plus 100% of the principal amount thereof (the "REDEMPTION
PRICE"). Notice of redemption shall be mailed to the registered holders of the
Debentures designated for redemption at their addresses as the same shall appear
on the Debenture register not less than 30 nor more than 60 days prior to the
date fixed for redemption, subject to all the conditions and provisions of the
Subordinated Indenture. In the event of redemption of this Debenture in part
only, a new Debenture or Debentures for the amount of the unredeemed portion
hereof shall be issued in the name of the holder hereof upon the cancellation
hereof.
The Issuer's right to redeem the Debentures under clause (ii) of the preceding
paragraph shall be subject to the condition that if at the time there is
available to the Issuer or Dillard's Capital Trust ___ (the "ISSUER TRUST," the
terms of which have been established pursuant to the Amended and Restated Trust
Agreement dated as of _______ ____, 1998, among the Issuer, as depositor, The
Chanse Manhattan Bank, as Property Trustee, Chase Manhattan Bank Delaware, as
Delaware Trustee and the Administrators, the "TRUST AGREEMENT") the opportunity
to eliminate, within the 90-Day Period, the Tax Event or Investment Company
Event by taking some ministerial action ("MINISTERIAL ACTION"), such as filing a
form or making an election, or pursuing some other similar reasonable measure
that will have no adverse effect on the Issuer, the Issuer Trust or the holders
of the securities issued by the Issuer Trust and will involve no material cost,
the Issuer shall pursue such measures in lieu of redemption; provided further,
that the Issuer shall have no right to redeem the Debentures while the Issuer
Trust is pursuing any Ministerial Action pursuant to the Trust Agreement. The
Redemption Price shall be paid prior to 12:00 noon, New York time, on the date
of such redemption or such earlier time as the Issuer determines; provided, that
the Issuer shall deposit with the Trustee an amount sufficient to pay the
Redemption Price prior to the redemption date.
<PAGE>
5
In addition, if a Tax Event occurs, then the Issuer will have the right prior
to the termination of the Issuer Trust, to advance the Stated Maturity of this
Debenture to the minimum extent required in order to allow for the payments of
interest in respect this Debenture to continue to be tax deductible, but in no
event shall the resulting maturity of this Debenture be less than 15 years from
the date of original issuance thereof. The Stated Maturity shall be advanced
only if, in the opinion of counsel to the Issuer, experienced in such matters,
(a) after advancing the Stated Maturity, interest paid on this Debenture will be
deductible for United States federal income tax purposes and (b) advancing the
Stated Maturity will not result in a taxable event to the holders of the Capital
Securities.
The term "TAX EVENT" means the receipt by the Issuer Trust of an opinion of
counsel to the Issuer experienced in such matters, who shall not be an officer
or employee of the Issuer or any of its affiliates, to the effect that, as a
result of any amendment to, or change (including any announced prospective
change) in, the laws (or any regulations thereunder) of the United States or any
political subdivision or taxing authority thereof or therein or as a result of
any official or administrative pronouncement or action or judicial decision
interpreting or applying such laws or regulations, which amendment or change is
effective or which pronouncement, action or decision is announced on or after
the date of issuance of Capital Securities of the Issuer Trust, there is more
than an insubstantial risk that (i) the Issuer Trust is, or will be within 90
days of the delivery of such opinion, subject to United States federal income
tax with respect to income received or accrued on the Debentures, (ii) interest
payable by the Issuer on the Debentures is not, or within 90 days of the
delivery of such opinion will not be, deductible by the Issuer, in whole or in
part, for United States federal income tax purposes or (iii) the Issuer Trust
is, or will be within 90 days of the delivery of the opinion, subject to more
than a de minimis amount of other taxes, duties or other governmental charges.
"INVESTMENT COMPANY EVENT" means the receipt by the Issuer Trust of an opinion
of counsel to the Issuer experienced in such matters, who shall not be an
officer or employee of the Issuer or any of its affiliates, to the effect that,
as a result of the occurrence of a change in law or regulation or a written
change (including any announced prospective change) in interpretation or
application of law or regulation by any legislative body, court, governmental
agency or regulatory authority, there is more than an insubstantial risk that
the Issuer Trust is or will be considered an "investment company" that is
required to be registered under the Investment Company Act of 1940, as amended
(the "Investment Company Act"), which change or prospective change becomes
effective or would become effective, as the case may be, on or after the date of
the issuance of the Capital Securities of the Issuer Trust.
Interest payments on this Debenture will include interest accrued to but
excluding the Interest Payment Dates or the Stated Maturity (or any earlier
redemption or repayment date), as the case may be. Interest payments for this
Debenture will be computed and paid on the basis of a 360-day year of twelve 30-
day months and the actual days elapsed in a partial month in such period. The
amount of interest payable for any full interest period will be computed by
dividing the rate per annum by four. Accrued interest that is not paid on the
applicable Interest Payment Date will bear additional interest on the amount
thereof at the rate per annum of 7.10% (the "COUPON RATE"), compounded quarterly
and computed on the basis of a 360-day year of twelve 30-day months and the
actual days elapsed in a partial month in such period. The amount of additional
interest payable for any full interest period will be computed by dividing the
rate per annum by four. The term
<PAGE>
6
"interest" as used herein includes quarterly interest payments, interest on
quarterly interest payments not paid on the applicable Interest Payment Date and
Additional Sums (as defined below), as applicable.
If any Interest Payment Date or the Stated Maturity (or any redemption or
repayment date) does not fall on a Business Day, payment of interest, premium,
if any, or principal otherwise payable on such date need not be made on such
date, but may be made on the next succeeding Business Day with the same force
and effect as if made on the Interest Payment Date or at the Stated Maturity (or
any redemption or repayment date), and no interest on such payment shall accrue
for the period from and after the Interest Payment Date or the Stated Maturity
(or any redemption or repayment date) to such next succeeding Business Day.
The Subordinated Indenture provides that, (a) if an Event of Default (as
defined in the Subordinated Indenture) due to the default in payment of
principal of, premium, if any, or interest on, any series of debt securities
issued under the Subordinated Indenture, including the series of Debentures of
which this Debenture forms a part, or due to the default in the performance or
breach of any other covenant or warranty of the Issuer applicable to the debt
securities of such series but not applicable to all outstanding debt securities
issued under the Subordinated Indenture shall have occurred and be continuing,
either the Trustee or the holders of not less than 25% in principal amount of
the debt securities of each affected series (voting as a single class) may then
declare the principal of all debt securities of all such series and interest
accrued thereon to be due and payable immediately and (b) if an Event of Default
due to a default in the performance of any other of the covenants or agreements
in the Subordinated Indenture applicable to all outstanding debt securities
issued thereunder, including this Debenture, or due to certain events of
bankruptcy, insolvency and reorganization of the Issuer, shall have occurred and
be continuing, either the Trustee or the holders of not less than 25% in
principal amount of all debt securities issued under the Subordinated Indenture
then outstanding (treated as one class) may declare the principal of all such
debt securities and interest accrued thereon to be due and payable immediately,
but upon certain conditions such declarations may be annulled and past defaults
may be waived (except a continuing default in payment of principal (or premium,
if any) or interest on such debt securities) by the holders of a majority in
principal amount of the debt securities of all affected series then outstanding.
Deferral of any due date for the payment of interest in connection with an
Extension Period (as defined herein) does not constitute an Event of Default.
So long as no Event of Default has occurred and is continuing, the Issuer
shall have the right at any time, and from time to time, during the term of the
Debentures to defer payments of interest by extending the interest payment
period of this Debenture for a period not exceeding 20 consecutive quarters (the
"EXTENSION PERIOD"), during which Extension Period no interest shall be due and
payable; provided, that no Extension Period may extend beyond the Stated
Maturity. Interest, the payment of which has been deferred because of the
extension of the interest payment period pursuant to this paragraph, will bear
interest thereon at the Coupon Rate compounded quarterly for each quarter of the
Extension Period and computed on the basis of a 360-day year of twelve 30-day
months and the actual days elapsed in a partial month in such period
("ADDITIONAL INTEREST"). The Coupon Rate payable for any full interest period
will be computed by dividing the rate per annum by four. At the end of the
Extension Period, the Issuer shall pay all interest accrued and unpaid on this
Debenture, including any Additional Sums and Additional Interest (together,
"DEFERRED INTEREST") that shall be payable to the Holders of this Debenture in
whose names this Debenture is registered in the Securities Register on the first
Record Date after the end of the
<PAGE>
7
Extension Period. Before the termination of any Extension Period, the Issuer may
further extend such period; provided, that such period together with all such
further extensions thereof shall not exceed 20 consecutive quarters, or extend
beyond the Stated Maturity. In the event that the Stated Maturity is advanced to
a date prior to the end of an Extension Period, such Extension Period shall be
deemed to end on such date or such earlier date as may be determined by the
Issuer. In the event that any Debentures are called for redemption on a date
prior to the end of an Extension Period, with respect to such Debentures, such
Extension Period shall be deemed to end on such date or such earlier date as may
be determined by the Issuer. Upon the termination of any Extension Period and
upon the payment of all Deferred Interest then due, the Issuer may commence a
new Extension Period, subject to the foregoing requirements. No interest shall
be due and payable during an Extension Period, except at the end thereof, but
the Issuer may prepay at any time all or any portion of the interest accrued
during an Extension Period.
If the Property Trustee (as defined in the Trust Agreement) is the only Holder
of the Debentures at the time the Issuer selects an Extension Period, the Issuer
shall give written notice to the Issuer Trustees (as defined in the Trust
Agreement) of its selection of such Extension Period at least 30 calendar days
prior to the date the Distributions (as defined in the Trust Agreement) on the
Trust Securities (as defined in the Trust Agreement) would have been payable but
for the election to begin such Extension Period.
If the Property Trustee is not the only Holder, or is not itself the Holder,
of the Debentures at the time the Issuer selects an Extension Period, the Issuer
shall give the Holders of the Debentures and the Trustee written notice of its
selection of such Extension Period at least 10 Business Days before the earlier
of the next succeeding Interest Payment Date or the date the Issuer is required
to give notice of the record or payment date of such interest payment to Holders
of the Debentures.
The Issuer covenants that it will 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 Issuer's capital stock or (ii) make any payment of
principal of or interest or premium, if any, on or repay, repurchase or redeem
any debt securities of the Issuer that rank pari passu in all respects with or
junior in interest to the Debentures (other than (a) repurchases, redemptions or
other acquisitions of shares of capital stock of the Issuer (1) in connection
with any employment contract, benefit plan or other similar arrangement with or
for the benefit of any one or more employees, officers, directors or
consultants, (2) in connection with a dividend reinvestment or stockholder stock
purchase plan or (3) in connection with the issuance of capital stock of the
Issuer (or securities convertible into or exercisable for such capital stock) as
consideration in an acquisition transaction entered into prior to the applicable
Extension Period or other event referred to below, (b) as a result of an
exchange, redemption or conversion of any class or series of the Issuer's
capital stock (or any capital stock of a subsidiary of the Issuer) for any class
or series of the Issuer's capital stock or of any class or series of the
Issuer's indebtedness for any class or series of the Issuer's capital stock, (c)
the purchase of fractional interests in shares of the Issuer's capital stock
pursuant to the conversion or exchange provisions of such capital stock or the
security being converted or exchanged, (d) any declaration of a dividend in
connection with any stockholder's rights plan, or the issuance of rights, stock
or other property under any stockholder's rights plan, or the redemption or
repurchase of rights pursuant thereto, (e) payments under the Guarantee executed
and delivered by the Issuer and The Chase Manhattan Bank, as trustee, for the
benefit of the holders of any Capital Securities (as defined in the Trust
Agreement), as amended from time to time (the "GUARANTEE") or (f) any dividend
in the form
<PAGE>
8
of stock, warrants, options or other rights where the dividend stock or the
stock issuable upon exercise of such warrants, options or other rights is the
same stock as that on which the dividend is being paid or ranks pari passu with
or junior to such stock), if at such time (i) there has occurred any event (a)
of which the Issuer has actual knowledge that with the giving of notice or the
lapse of time, or both, would constitute an Event of Default and (b) that the
Issuer has not taken reasonable steps to cure, (ii) if the Debentures are held
by the Issuer Trust, the Issuer is in default with respect to its payment of any
obligations under the Guarantee or (iii) the Issuer has given notice of its
election of an Extension Period as provided in the Subordinated Indenture and
has not rescinded such notice, or such Extension Period, or any extension
thereof, is continuing.
If an Event of Default has occurred and is continuing and such event is
attributable to the failure of the Issuer to pay any amounts payable in respect
of the Debentures on the date such amounts are otherwise payable, a registered
holder of Capital Securities may institute a legal proceeding directly against
the Issuer for enforcement of payment to such registered holder of an amount
equal to the amount payable in respect of Debentures having a principal amount
equal to the aggregate Liquidation Amount (as defined in the Trust Agreement) of
the Capital Securities held by such registered holder (a "Direct Action"). The
Issuer shall have the right to set off any payment made to such registered
holder of Capital Securities by the Issuer in connection with a Direct Action.
As long as any Debentures are held by the Issuer Trust, the Issuer covenants
(i) to continue to hold, directly or indirectly, 100% of the Common Securities
(as defined in the Trust Agreement), provided that certain successors that are
permitted pursuant to the Subordinated Indenture may succeed to the Issuer's
ownership of the Common Securities, (ii) as holder of the Common Securities, not
to voluntarily dissolve, windup or liquidate the Issuer Trust, other than (a) in
connection with a distribution of Debentures to the holders of the Capital
Securities in liquidation of the Issuer Trust or (b) in connection with certain
mergers, consolidations or amalgamations permitted by the Trust Agreement and
(iii) to use its reasonable efforts, consistent with the terms and provisions of
the Trust Agreement, to cause the Issuer Trust to continue not be taxable as a
corporation for United States federal income tax purposes.
If, and for so long as, (i) the Issuer Trust is the holder of all the
Debentures and (ii) the Issuer Trust is required to pay any additional taxes,
duties or other governmental charges as a result of a Tax Event, the Issuer will
pay as additional sums on the Debentures ("ADDITIONAL SUMS") such amounts as may
be required so that the Distributions (as defined in the Trust Agreement) paid
by the Issuer Trust will not be reduced as a result of any such additional
taxes, duties or other governmental charges.
The Issuer, as borrower, agrees to pay all debts and other obligations (other
than with respect to the Capital Securities issued by the Issuer Trust) and all
costs and expenses of the Issuer Trust (including costs and expenses relating to
the organization of the Issuer Trust, the fees and expenses of the Issuer
Trustees (as defined in the Trust Agreement) for the Issuer Trust and the costs
and expenses relating to the operation of the Issuer Trust) and to pay any and
all taxes and all costs and expenses with respect thereto (other than United
States withholding taxes) to which the Issuer Trust might become subject. The
foregoing obligations of the Issuer under the Debentures owned by the Issuer
Trust are for the benefit of, and shall be enforceable by, any person to whom
any such debts, obligations, costs, expenses and taxes are owed (a "CREDITOR")
whether or not such Creditor has received notice thereof. Any such Creditor may
enforce such obligations of the Issuer
<PAGE>
9
directly against the Issuer, and the Issuer irrevocably waives any right or
remedy to require that any such Creditor take any action against the Issuer
Trust or any other person before proceeding against the Issuer. The Issuer
agrees to execute any additional agreements as may be necessary or desirable to
give full effect to the foregoing.
The provisions of Section 3.04 and Section 10.01 of the Subordinated Indenture
relating to discharge, defeasance and covenant defeasance are not applicable to
this Debenture.
This Debenture and all other obligations of the Issuer hereunder will
constitute part of the subordinated debt of the Issuer, will be issued under the
Subordinated Indenture and will be subordinate and junior in right of payment,
to the extent and in the manner set forth in the Subordinated Indenture, to all
"Senior Indebtedness" of the Issuer. The Subordinated Indenture defines "SENIOR
INDEBTEDNESS" as obligations issued under the Indenture between the Issuer and
The Chase Manhattan Bank (formerly known as Chemical Bank), as trustee, dated as
of May 15, 1988, as supplemented by a First Supplemental Indenture dated as of
December 16, 1988 and a Second Supplemental Indenture dated as of September 14,
1990 and by a Third Supplemental Indenture dated as of July __, 1998, and any
other obligations (other than non-recourse obligations, the debt securities,
including this Debenture, issued under the Subordinated Indenture or any other
obligations specifically designated as being subordinate in right of payment to
Senior Indebtedness) of, or guaranteed or assumed by, the Issuer for borrowed
money or evidenced by bonds, debentures or other similar instruments, and
amendments, renewals, extensions, modifications and refundings of any such
indebtedness or obligation.
This Debenture, and any Debenture or Debentures issued upon transfer or
exchange hereof, is issuable only in fully registered form, without coupons, and
is issuable only in denominations of U.S.$25 and any integral multiple of
U.S.$25 in excess thereof, unless otherwise indicted on the face thereof.
The Chase Manhattan Bank has been appointed registrar for the Debentures (the
"REGISTRAR," which term includes any successor registrar appointed by the
Issuer), and the Registrar will maintain at its office in The City of New York a
register for the registration and transfer of Debentures. This Debenture may be
transferred at the aforesaid office of the Registrar by surrendering this
Debenture for cancellation, accompanied by a written instrument of transfer in
form satisfactory to the Registrar and duly executed by the registered holder
hereof in person or by the holder's attorney duly authorized in writing, and
thereupon the Registrar shall issue in the name of the transferee or
transferees, in exchange hereof, a new Debenture or Debentures having identical
terms and provisions and having a like aggregate principal amount in authorized
denominations, subject to the terms and conditions set forth herein; provided,
however, that the Registrar will not be required (i) to register the transfer of
or exchange any Debenture that has been called for redemption in whole or in
part, except the unredeemed portion of Debentures being redeemed in part or (ii)
to register the transfer of or exchange Debentures to the extent and during the
period so provided in the Subordinated Indenture with respect to the redemption
of Debentures. Debentures are exchangeable at said office for other Debentures
or other authorized denominations of equal aggregate principal amount have
identical terms and provisions. All such exchanges and transfers of Debentures
will be free of charge, but the Issuer may require payment of a sum sufficient
to cover any tax or other governmental charge in connection therewith. All
Debentures surrendered for exchange shall be accompanied by a written instrument
of transfer in form satisfactory to the Registrar and executed by the registered
holder in person or by the holder's attorney duly authorized
<PAGE>
10
in writing. The date of registration of any Debenture delivered upon any
exchange or transfer of Debentures shall be such that no gain or loss of
interest results from such exchange or transfer.
In case this Debenture shall at any time become mutilated, defaced or be
destroyed, lost or stolen and this Debenture or evidence of the loss, theft or
destruction thereof (together with the indemnity hereinafter referred to and
such other documents or proof as may be required in the premises) shall be
delivered to the Registrar, a new Debenture of like tenor will be issued by the
Issuer in exchange for this Debenture, but, if this Debenture has been
destroyed, lost or stolen, only upon receipt of evidence satisfactory to the
Registrar and the Issuer that such Debenture was destroyed or lost or stolen
and, if required, upon receipt also of indemnity satisfactory to each of them.
All expenses and reasonable charges associated with procuring such indemnity and
with the preparation, authentication and delivery of a new Debenture shall be
borne by the owner of the Debenture mutilated, defaced, destroyed, lost or
stolen.
The Subordinated Indenture permits the Issuer and the Trustee, with the
consent of the holders of not less than a majority in aggregate principal amount
of the debt securities of all series issued under the Subordinated Indenture
then outstanding and affected (voting as one class), to execute supplemental
indentures adding any provisions to or changing in any manner the rights of the
holders of each series so affected; provided that the Issuer and the Trustee may
not, without the consent of the holder of each outstanding debt security
affected thereby and the prior written consent of each registered holder of
Capital Securities, to the extent that the Debentures are held by a Dillard's
Capital Trust, (a) extend the final maturity of any such debt security, or
reduce the principal amount thereof, or reduce the rate or extend the time of
payment of interest thereon, except as otherwise provided herein or in the
Subordinated Indenture, or reduce any amount payable on redemption or repayment
thereof, or change the currency of payment thereof, or impair or affect the
rights of any holder to institute suit for the payment thereof without the
consent of the holder of each debt security so affected or (b) reduce the
aforesaid percentage in principal amount of debt securities the consent of the
holders of which is required for any such supplemental indenture; provided,
however, that neither this Debenture nor the Subordinated Indenture may be
amended to alter the subordination provisions hereof or thereof without the
written consent of each holder of Senior Indebtedness then outstanding that
would be adversely affected thereby. In addition, so long as any of the Capital
Securities remain outstanding, no such modification may be made that adversely
affects the holders of such Capital Securities in any material respect, and no
termination of the Subordinated Indenture may occur, and no waiver of any Event
of Default or compliance with any covenant under the Subordinated Indenture may
be effective, without the prior consent of the holders of at least a majority of
the aggregate Liquidation Amount of the outstanding Capital Securities unless
and until the principal of (and premium, if any, on) the Debentures and all
accrued and unpaid interest thereon have been paid in full and certain other
conditions are satisfied. So long as the Issuer acts in accordance with the
terms of the Debentures, the Issuer may shorten the Stated Maturity of and defer
interest payable on the Debentures, in each case in accordance with the terms
hereof without the consent of the Issuer Trust or the holders of Capital
Securities. However, the Issuer may not amend this Debenture or the
Subordinated Indenture to remove the rights of registered holders of Capital
Securities to institute a Direct Action without the prior written consent of all
the registered holders of Capital Securities of the Trust.
So long as this Debenture shall be outstanding, the Issuer will cause to be
maintained an office or agency for the payment of the principal of and premium,
if any, and interest on this Debenture as herein provided in the Borough of
Manhattan, The City of New York, and an office or
<PAGE>
11
agency in said Borough of Manhattan for the registration, transfer and exchange
as aforesaid of the Debentures. The Issuer may designate other agencies for the
payment of said principal, premium and interest at such place or places (subject
to applicable laws and regulations) as the Issuer may decide. So long as there
shall be such an agency, the Issuer shall keep the Trustee advised of the names
and locations of such agencies, if any are so designated.
With respect to moneys paid by the Issuer and held by the Trustee or any
Paying Agent for payment of the principal of or interest or premium, if any, on
any Debentures that remain unclaimed at the end of two years after such
principal, interest or premium shall have become due and payable (whether at
maturity or upon call for redemption or otherwise), (i) the Trustee or such
Paying Agent shall notify the holders of such Debentures that such moneys shall
be repaid to the Issuer and any person claiming such moneys shall thereafter
look only to the Issuer for payment thereof and (ii) such moneys shall be so
repaid to the Issuer. Upon such repayment all liability of the Trustee or such
Paying Agent with respect to such moneys shall thereupon cease, without,
however, limiting in any way any obligation that the Issuer may have to pay the
principal of or interest or premium, if any, on this Debenture as the same shall
become due.
No provision of this Debenture or of the Subordinated Indenture shall alter or
impair the obligation of the Issuer, which is absolute and unconditional, to pay
the principal of, premium, if any, and interest on this Debenture at the time,
place, and rate, and in the coin or currency, herein prescribed unless otherwise
agreed between the Issuer and the registered holder of this Debenture.
Prior to due presentment of this Debenture for registration of transfer, the
Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the
holder in whose name this Debenture is registered as the owner hereof for all
purposes, whether or not this Debenture be overdue, and none of the Issuer, the
Trustee or any such agent shall be affected by notice to the contrary.
No recourse shall be had for the payment of the principal of, premium, if any,
or the interest on this Debenture, for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Subordinated Indenture or any
indenture supplemental thereto, against any incorporator, shareholder, officer
or director, as such, past, present or future, of the Issuer or of any successor
corporation, either directly or through the Issuer or any successor corporation,
whether by virtue of any constitution, statute or rule of law or by the
enforcement of any assessment or penalty or otherwise, all such liability being,
by the acceptance hereof and as part of the consideration for the issue hereof,
expressly waived and released.
This Debenture shall for all purposes be governed by, and construed in
accordance with, the laws of the State of New York.
<PAGE>
12
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations.
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of
survivorship and not as tenants in common
UNIF GIFT MIN ACT - ___________________ Custodian _____________________
(Minor) (Cust)
Under Uniform Gifts to Minors Act ____________________
(State)
Additional abbreviations may also be used though not in the above list.
_______________
<PAGE>
13
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
- ----------------------------------------
[PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE]
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
[PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE]
the within Debenture and all rights thereunder, hereby irrevocably constituting
and appointing such person attorney to transfer such Debenture on the books of
the Issuer, with full power of substitution in the premises.
Dated:
------------------------
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within Debenture in every particular
without alteration or enlargement or any change whatsoever.
Signature Guaranty:
------------------------------
Signatures must be guaranteed by an "eligible guarantor
institution" meeting the requirements of the [Registrar],
which requirements include membership or participation in the
Security Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by
the [Registrar] in addition to, or in substitution for,
STAMP, all in accordance with the Securities Exchange Act of
1934, as amended.
<PAGE>
EXHIBIT 4-u
DILLARD'S CAPITAL TRUST ___
CAPITAL SECURITIES GUARANTEE AGREEMENT
Between
___________________________________________________________________________
DILLARD'S, INC.
(as Guarantor)
and
THE CHASE MANHATTAN BANK
(as Guarantee Trustee)
___________________________________________________________________________
_______ _____, 1998
<PAGE>
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS..................................................... 1
SECTION 1.1 Definitions....................................... 1
ARTICLE II
TRUST INDENTURE ACT............................................. 5
SECTION 2.1 Trust Indenture Act; Application.................. 5
SECTION 2.2 List of Holders................................... 5
SECTION 2.3 Reports by the Guarantee Trustee.................. 5
SECTION 2.4 Periodic Reports to the Guarantee Trustee......... 5
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............................. 6
ARTICLE III
POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE.............. 6
SECTION 3.1 Powers and Duties of the Guarantee Trustee........ 6
SECTION 3.2 Certain Rights of Guarantee Trustee............... 8
SECTION 3.3 Indemnity......................................... 9
SECTION 3.4 Expenses.......................................... 9
ARTICLE IV
GUARANTEE TRUSTEE............................................... 10
SECTION 4.1 Guarantee Trustee; Eligibility.................... 10
SECTION 4.2 Appointment, Removal and Resignation of the
Guarantee Trustee............................................. 10
ARTICLE V
GUARANTEE....................................................... 11
SECTION 5.1 Guarantee......................................... 11
SECTION 5.2 Waiver of Notice and Demand....................... 11
SECTION 5.3 Obligations Not Affected.......................... 11
SECTION 5.4 Rights of Holders................................. 12
SECTION 5.5 Guarantee of Payment.............................. 12
SECTION 5.6 Subrogation....................................... 12
SECTION 5.7 Independent Obligations........................... 13
ARTICLE VI
<PAGE>
Page
----
COVENANTS AND SUBORDINATION..................................... 13
SECTION 6.1 Subordination..................................... 13
SECTION 6.2 Pari Passu Guarantees............................. 13
ARTICLE VII
TERMINATION..................................................... 13
SECTION 7.1 Termination....................................... 13
ARTICLE VIII
MISCELLANEOUS................................................... 14
SECTION 8.1 Successors and Assigns............................ 14
SECTION 8.2 Amendments........................................ 14
SECTION 8.3 Notices........................................... 14
SECTION 8.4 Benefit........................................... 15
SECTION 8.5 Interpretation.................................... 15
SECTION 8.6 Governing Law..................................... 16
SECTION 8.7 Counterparts...................................... 16
2
<PAGE>
This GUARANTEE AGREEMENT, dated as of _____ ____, 1998 is executed and
delivered by DILLARD'S, INC., a Delaware corporation (the "Guarantor") having
its principal office at 1600 Cantrell Road, Little Rock, Arkansas 72201 and The
Chase Manhattan Bank, a New York banking corporation, as trustee (the "Guarantee
Trustee"), for the benefit of the Holders (as defined herein) from time to time
of the Capital Securities (as defined herein) of Dillard's Capital Trust ___, a
Delaware statutory business trust (the "Issuer Trust").
WHEREAS, pursuant to an Amended and Restated Trust Agreement (the "Trust
Agreement"), dated as of _______ ____, 1998, among Dillard's, Inc., as
Depositor, The Chase Manhattan Bank, as Property Trustee (the "Property
Trustee"), Chase Manhattan Bank Delaware, as Delaware Trustee (the "Delaware
Trustee") (collectively, the "Issuer Trustees"), two individuals selected by the
holders of the Common Securities to act as administrators with respect to the
Issuer Trust (the "Administrators") and the Holders from time to time of
preferred undivided beneficial ownership interests in the assets of the Issuer
Trust, the Issuer Trust is issuing $________ aggregate Liquidation Amount (as
defined herein) of its _____% Capital Securities, Liquidation Amount $___ per
capital security (the "Capital Securities"), representing preferred undivided
beneficial ownership interests in the assets of the Issuer Trust and having the
terms set forth in the Trust Agreement;
WHEREAS, the Capital Securities will be issued by the Issuer Trust and the
proceeds thereof, together with the proceeds from the issuance of the Issuer
Trust's Common Securities (as defined herein), will be used to purchase the
Subordinated Debenture (as defined in the Trust Agreement) of the Guarantor
which will be deposited with The Bank of New York, as Property Trustee under the
Trust Agreement, as trust assets; and
WHEREAS, as incentive for the Holders to purchase the Capital Securities,
the Guarantor desires irrevocably and unconditionally to agree, to the extent
set forth herein, to pay to the Holders of the Capital Securities the Guarantee
payments (as defined herein) and to make certain other payments on the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the purchase of the Capital Securities
by each Holder, which purchase the Guarantor hereby acknowledges shall benefit
the Guarantor, and intending to be legally bound hereby, the Guarantor executes
and delivers this Guarantee Agreement for the benefit of the Holders from time
to time of the Capital Securities.
ARTICLE I
<PAGE>
2
DEFINITIONS
SECTION I.1 Definitions. As used in this Guarantee Agreement, the terms set
forth below shall, unless the context otherwise requires, have the following
meanings. Capitalized terms used but not otherwise defined herein shall have the
meanings assigned to such terms in the Trust Agreement as in effect on the date
hereof.
"Additional Amounts" has the meaning specified in the Trust Agreement.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Capital Securities" shall have the meaning specified in the first recital of
this Guarantee Agreement.
"Common Securities" means the securities representing common undivided
beneficial interests in the assets of the Issuer Trust.
"Distributions" means preferential cumulative cash distributions accumulating
from and including _____ ____, 1998 and payable quarterly in arrears on ________
____, _______ ____, _______ ____ and ________ ____ of each year, commencing
_______ ____, 1998, at the annual rate of _____% of the Liquidation Amount.
"Event of Default" means (i) a default by the Guarantor in any of its payment
obligations under this Guarantee Agreement, or (ii) a default by the Guarantor
in any other obligation hereunder that remains unremedied for 30 days.
"Guarantee Agreement" means this Guarantee Agreement, as modified, amended or
supplemented from time to time.
"Guarantee Payments" means the following payments or distributions, without
duplication, with respect to the Capital Securities, to the extent not paid or
made by or on behalf of the Issuer Trust: (i) any accumulated and unpaid
Distributions required to be paid on the Capital Securities, to the extent the
Issuer Trust shall have funds on hand available therefor at such time, (ii) the
Redemption Price, with respect to the Capital Securities called for redemption
by the Issuer Trust to the extent that the Issuer Trust shall have funds on hand
available therefor at such time, and (iii) upon a voluntary or involuntary
dissolution, winding-up or liquidation of the Issuer Trust, unless Subordinated
Debentures are distributed to the Holders, the lesser of (a) the aggregate of
the Liquidation Amount and all accumulated and unpaid Distributions to the date
of payment and (b) the amount of assets of the Issuer Trust remaining available
for distribution to Holders on liquidation of the Issuer Trust (in either case,
the "Liquidation
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3
Distribution").
"Guarantee Trustee" means The Chase Manhattan Bank, until a Successor
Guarantee Trustee has been appointed and has accepted such appointment pursuant
to the terms of this Guarantee Agreement and thereafter means each Successor
Guarantee Trustee.
"Guarantor" shall have the meaning specified in the first paragraph of this
Guarantee Agreement.
"Holder" means any holder, as registered on the books and records of the
Issuer Trust, of any Capital Securities; provided, however, that, in determining
whether the holders of the requisite percentage of Capital Securities have given
any request, notice, consent or waiver hereunder, "Holder" shall not include the
Guarantor, the Guarantee Trustee, or any Affiliate of the Guarantor of the
Guarantee Trustee.
"Indenture" means the Subordinated Debt Indenture dated as of ________ ____,
1998, between Dillard's, Inc. and The Chase Manhattan Bank, as trustee, as may
be modified, amended or supplemented from time to time.
"Issuer Trust" shall have the meaning specified in the first paragraph of this
Guarantee Agreement.
"Liquidation Amount" means the stated amount of $___ per Capital Security.
"Majority in Liquidation Amount of the Capital Securities" means, except as
provided by the Trust Indenture Act, Capital Securities representing more than
50% of the aggregate Liquidation Amount of all then outstanding Capital
Securities issued by the Issuer Trust.
"Like Amount" means (i) with respect to a redemption of Trust Securities,
Trust Securities having a Liquidation Amount equal to that portion of the
principal amount of Subordinated Debentures to be contemporaneously redeemed in
accordance with the Subordinated Indenture, allocated to the Common Securities
and to the Capital Securities based upon the relative Liquidation Amounts of
such classes and (ii) with respect to a distribution of Subordinated Debentures
to Holders of Trust Securities in connection with a dissolution or liquidation
of the Issuer Trust, Subordinated Debentures having a principal amount equal to
the Liquidation Amount of the Trust Securities of the Holder to whom such
Subordinated Debentures are distributed.
"Officer's Certificate" means a certificate signed by any one of the
following: the Chairman of the Board, the President, the Chief Financial
Officer, the Chief Strategic and Administrative Officer, the Chief Legal
Officer, the Treasurer, any Assistant Treasurer of the Company or any other
person authorized by the Board of Directors to execute any such certificate, and
delivered to the Guarantee Trustee. Any Officer's Certificate delivered with
respect to compliance with a condition or covenant provided for in this
Guarantee Agreement shall include:
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4
(a) a statement by the officer signing the Officer's Certificate that such
officer has read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by such officer in rendering the Officer's Certificate;
(c) a statement that such officer has made such examination or investigation
as, in such officer's opinion, is necessary to enable such officer 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 officer, 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.
"Redemption Date" means, with respect to any Capital Security to be redeemed,
the date fixed for such redemption by or pursuant to the Trust Agreement;
provided that each Subordinated Debenture Redemption Date and the stated
maturity of the Subordinated Debentures shall be a Redemption Date for a Like
Amount of Capital Securities.
"Redemption Price" shall have the meaning specified in the Trust Agreement.
"Responsible Officer" means, when used with respect to the Guarantee Trustee,
any officer assigned to the Corporate Trust Office, including any managing
director, vice president, assistant vice president, assistant treasurer,
assistant secretary or any other officer of the Guarantee Trustee customarily
performing functions similar to this performed by any of the above designated
officers and having direct responsibility for the administration of this
Indenture, and also, with respect to a particular matter, any other officer to
whom such matter is referred because of such officer's knowledge of and
familiarity with the particular subject.
"Senior Indebtedness" shall have the meaning specified in the Indenture.
"Successor Guarantee Trustee" means a successor Guarantee Trustee possessing
the qualifications to act as Guarantee Trustee under Section 4.1.
"Trust Agreement" means the Amended and Restated Trust Agreement, dated
________ ____, 1998, executed by Dillard's, Inc., as Depositor, Chase Manhattan
Bank Delaware, as Delaware Trustee, and The Chase Manhattan Bank, as Property
Trustee.
"Trust Indenture Act" means the Trust Indenture Act of 1939 (15 U.S.C. ss.ss.
77aaa-77bbbb), as amended.
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5
"Trust Securities" means the Common Securities and the Capital Securities.
ARTICLE II
TRUST INDENTURE ACT
SECTION II.1 Trust Indenture Act; Application. If any provision hereof
limits, qualifies or conflicts with a provision of the Trust Indenture Act that
is required under such Act to be a part of and govern this Guarantee Agreement,
the provision of the Trust Indenture Act shall control. If any provision of this
Guarantee Agreement modifies or excludes any provision of the Trust Indenture
Act that may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or to be excluded, as the case may be.
SECTION II.2 List of Holders. (a) The Guarantor will furnish or cause to be
furnished to the Guarantee Trustee a list of Holders at the following times:
(i) quarterly, not more than 15 days after ________ ____, _______ ____,
_______ ____ and ________ ____ in each year, a list, in such form as the
Guarantee Trustee may reasonably require, of the names and addresses of the
Holders as of such ________ ____, _______ ____, _______ ____ and ________ ____;
and
(ii) at such other times as the Guarantee Trustee may request in writing,
within 30 days after the receipt by the Guarantor of any such request, a list
of similar form and content as of a date not more than 15 days prior to the
time such list is furnished.
(b) The Guarantee Trustee shall comply with the requirements of Section
312(b) of the Trust Indenture Act.
SECTION II.3 Reports by the Guarantee Trustee. Not later than January 31 of
each year, commencing January 31, 1999, the Guarantee Trustee shall provide to
the Holders such reports, if any, as are required by Section 313 of the Trust
Indenture Act in the form and in the manner provided by Section 313 of the Trust
Indenture Act. The Guarantee Trustee shall also comply with the requirements of
Section 313(d) of the Trust Indenture Act.
SECTION II.4 Periodic Reports to the Guarantee Trustee. The Guarantor shall
provide to the Guarantee Trustee and the Holders such documents, reports and
information, if any, as required by Section 314 of the Trust Indenture Act 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 II.5 Evidence of Compliance with Conditions Precedent. The Guarantor
shall provide to the Guarantee Trustee such evidence of compliance with such
conditions precedent, if any, provided for in this Guarantee Agreement 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 Officer's
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6
Certificate.
SECTION II.6 Events of Default; Waiver. The Holders of a Majority in
Liquidation Amount of the Capital Securities may, by vote, on behalf of the
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
Guarantee Agreement, but no such waiver shall extend to any subsequent or other
default or Event of Default or impair any right consequent therefrom.
SECTION II.7 Event of Default; Notice. (a) The Guarantee Trustee shall,
within 90 days after the occurrence of an Event of Default, transmit by mail,
first class postage prepaid, to the Holders, notices of all Events of Default
known to the Guarantee Trustee, unless such Events of Default have been cured
before the giving of such notice; provided that, except in the case of a default
in the payment of a Guarantee Payment, the Guarantee Trustee shall be protected
in withholding such notice if and so long as the Board of Directors, the
executive committee or a trust committee of directors and/or Responsible
Officers of the Guarantee Trustee in good faith determines that the withholding
of such notice is in the interests of the Holders.
(b) The Guarantee Trustee shall not be deemed to have knowledge of any Event
of Default unless a Responsible Officer charged with the administration of this
Guarantee Agreement shall have received written notice if such Event of Default.
SECTION II.8 Conflicting Interests. The Trust Agreement shall be deemed to
be specifically described in this Guarantee Agreement 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 THE GUARANTEE TRUSTEE
SECTION III.1 Powers and Duties of the Guarantee Trustee. (a) This Guarantee
Agreement shall be held by the Guarantee Trustee for the benefit of the Holders,
and the Guarantee Trustee shall not transfer this Guarantee Agreement to any
Person except a Holder exercising his or her rights pursuant to Section 5.4(iv)
or to a Successor Guarantee Trustee on acceptance by such Successor Guarantor
Trustee of its appointment to act as Successor Guarantee Trustee hereunder. The
right, title and interest of the Guarantee Trustee, as such, hereunder shall
automatically vest in any Successor Guarantee Trustee, upon acceptance by such
Successor Guarantee Trustee of its appointment hereunder, and such vesting and
cessation of title shall be effective whether or not conveyancing documents have
been executed and delivered pursuant to the appointment of such Successor
Guarantee Trustee.
(b) If an Event of Default has occurred and is continuing, the Guarantee
Trustee shall enforce this Guarantee Agreement for the benefit of the Holders.
(c) The Guarantee Trustee, before the occurrence of any Event of Default and
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7
after the curing of all Events of Default that may have occurred, shall be
obligated to perform only such duties as are specifically set forth in this
Guarantee Agreement (including pursuant to Section 2.1), and no implied
covenants shall be read into this Guarantee Agreement against the Guarantee
Trustee. If an Event of Default has occurred (that has not been cured or waived
pursuant to Section 2.6), the Guarantee Trustee shall exercise such of the
rights and powers vested in it by this Guarantee Agreement, 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 Guarantee Agreement shall be construed to relieve
the Guarantee Trustee from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct, except that:
(i) Prior to the occurrence of any Event of Default and after the curing or
waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of the Guarantee Trustee shall be
determined solely by the express provisions of this Guarantee Agreement
(including pursuant to Section 2.1), and the Guarantee Trustee shall not be
liable except for the performance of such duties and obligations as are
specifically set forth in this Guarantee Agreement (including pursuant to
Section 2.1); and
(B) in the absence of bad faith on the part of the Guarantee Trustee,
the 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 Guarantee Trustee and conforming to the
requirements of this Guarantee Agreement; but in the case of any such
certificates or opinions that by any provision hereof or of the Trust
Indenture Act are specifically required to be furnished to the Guarantee
Trustee, the Guarantee Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this Guarantee
Agreement;
(ii) The Guarantee Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer of the Guarantee Trustee, unless it
shall be proved that the Guarantee Trustee was negligent in ascertaining the
pertinent facts upon which such judgment was made;
(iii) The 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 Capital Securities relating to the time, method and place of conducting any
proceeding for any remedy available to the Guarantee Trustee, or exercising any
trust or power conferred upon the Guarantee Trustee under this Guarantee
Agreement; and
(iv) No provision of this Guarantee Agreement shall require the Guarantee
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in
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8
the performance of any of its duties or in the exercise of any of
its rights or powers if the Guarantee Trustee shall have reasonable grounds for
believing that the repayment of such funds or liability is not assured to it
under the terms of this Guarantee Agreement or adequate indemnity against such
risk or liability is not reasonably assured to it.
SECTION III.2 Certain Rights of Guarantee Trustee. (a) Subject to the
provisions of Section 3.1:
(i) The 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 reasonably 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 Guarantee
Agreement shall be sufficiently evidenced by an Officer's Certificate unless
otherwise prescribed herein.
(iii) Whenever, in the administration of this Guarantee Agreement, the
Guarantee Trustee shall deem it desirable that a matter be proved or
established before taking, suffering or omitting to take any action hereunder,
the Guarantee Trustee (unless other evidence is herein specifically prescribed)
may, in the absence of bad faith on its part, request and conclusively rely
upon an Officer's Certificate which, upon receipt of such request from the
Guarantee Trustee, shall be promptly delivered by the Guarantor.
(iv) The Guarantee Trustee may consult with legal counsel, and the advice or
written opinion of such legal counsel with respect to legal matters shall be
full and complete authorization and protection in respect of any action taken,
suffered or omitted to be taken by it hereunder in good faith and in accordance
with such advice or opinion. Such legal counsel may be legal counsel to the
Guarantor or any of its Affiliates may be one of its employees. The Guarantee
Trustee shall have the right at any time to seek instructions concerning the
administration of this Guarantee Agreement from any court of competent
jurisdiction.
(v) The Guarantee Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Guarantee Agreement at the request or
direction of any Holder, unless such Holder shall have provided to the
Guarantee Trustee such security and indemnity as would satisfy a reasonable
person in the position of the Guarantee Trustee, against the costs, expenses
(including attorneys' fees and expenses) 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 Guarantee Trustee.
(vi) The Guarantee Trustee shall not be bound to make any 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 Guarantee Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit.
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9
(vii) The Guarantee Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through its agents or
attorneys, and the Guarantee Trustee shall not be responsible for any negligence
or wilful misconduct on the part of any such agent or attorney appointed with
due care by it hereunder.
(viii) Whenever in the administration of this Guarantee Agreement the
Guarantee Trustee shall deem it desirable to receive instructions with respect
to enforcing any remedy or right or taking any other action hereunder, the
Guarantee Trustee (A) may request instructions from the Holders, (B) may refrain
from enforcing such remedy or right or taking such other action until such
instructions are received and (C) shall be fully protected in acting in
accordance with such instructions.
(b) No provision of this Guarantee Agreement shall be deemed to impose any
duty or obligation on the 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 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 Guarantee Trustee
shall be construed to be a duty to act in accordance with such power and
authority.
SECTION III.3 Indemnity. The Guarantor agrees to indemnify the Guarantee
Trustee for, and to hold it harmless against, any loss, liability or expense
incurred without negligence, wilful misconduct or bad faith on the part of the
Guarantee Trustee, arising out of or in connection with the acceptance or
administration of this Guarantee Agreement, including the costs and expenses of
defending itself against any claim or liability in connection with the exercise
or performance of any of its powers or duties hereunder. The Guarantee Trustee
will not claim or exact any lien or charge on any Guarantee Payments as a result
of any amount due to it under this Guarantee Agreement.
SECTION III.4 Expenses. The Guarantor shall from time to time reimburse the
Guarantee Trustee for its expenses and costs (including reasonable attorneys' or
agents' fees) incurred in connection with the performance of its duties
hereunder.
ARTICLE IV
GUARANTEE TRUSTEE
SECTION IV.1 Guarantee Trustee; Eligibility. (a) There shall at all times be
a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a Person that is eligible pursuant to the Trust Indenture Act to act
as such and has a combined capital and surplus of at least $50,000,000, and
shall be a
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10
corporation meeting the requirements of Section 310(c) of the Trust Indenture
Act. If such corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of the supervising or examining
authority, then, for the purposes of this Section and to the extent permitted by
the Trust Indenture Act, 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 Guarantee Trustee shall cease to be eligible to so act
under Section 4.1(a), the Guarantee Trustee shall immediately resign in the
manner and with the effect set out in Section 4.2.
(c) If the Guarantee Trustee has or shall acquire any "conflicting interest"
within the meaning of Section 310(b) of the Trust Indenture Act, the Guarantee
Trustee and Guarantor shall in all respects comply with the provisions of
Section 310(b) of the Trust Indenture Act.
SECTION IV.2 Appointment, Removal and Resignation of the Guarantee Trustee.
(a) No resignation or removal of the Guarantee Trustee and no appointment of a
Successor Guarantee Trustee pursuant to this Article shall become effective
until the acceptance of appointment by the Successor Guarantee Trustee by
written instrument executed by the Successor Guarantee Trustee and delivered to
the Holders and the Guarantee Trustee.
(b) Subject to the immediately preceding paragraph, a Guarantee Trustee may
resign at any time by giving written notice thereof to the Holders. The
Guarantee Trustee shall appoint a successor by requesting from at least three
Persons meeting the eligibility requirements such Person's expenses and charges
to serve as the Guarantee Trustee, and selecting the Person who agrees to the
lowest expenses and charges. If the instrument of acceptance by the Successor
Guarantee Trustee shall not have been delivered to the Guarantee Trustee within
60 days after the giving of such notice of resignation, the Guarantee Trustee
may petition, at the expense of the Guarantor, any court of competent
jurisdiction for the appointment of a Successor Guarantee Trustee.
(c) The Guarantee Trustee may be removed for cause at any time by Act (within
the meaning of Section 6.8 of the Trust Agreement) of the Holders of at least a
Majority in Liquidation Amount of the Capital Securities, delivered to the
Guarantee Trustee.
(d) If a resigning Guarantee Trustee shall fail to appoint a successor, or if
a Guarantee Trustee shall be removed or become incapable of acting as Guarantee
Trustee, or if any vacancy shall occur in the office of any Guarantee Trustee
for any cause, the Holders of the Capital Securities, by Act of the Holders of
record of not less than 25% in aggregate Liquidation Amount of the Capital
Securities then outstanding delivered to such Guarantee Trustee, shall promptly
appoint a successor Guarantee Trustee. If no Successor Guarantee Trustee shall
have been so appointed by the Holders of the Capital Securities and such
appointment accepted by the Successor Guarantee Trustee, any Holder, on behalf
of himself and all others similarly situated, may petition any court of
competent jurisdiction for the appointment of a Successor Guarantee Trustee.
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11
ARTICLE V
GUARANTEE
SECTION V.1 Guarantee. The Guarantor irrevocably and unconditionally agrees
to pay in full, on a subordinated basis as set forth in Article VI, to the
Holders the Guarantee Payments (without duplication of amounts theretofore paid
by or on behalf of the Issuer Trust), as and when due, regardless of any
defense, right of set-off or counterclaim which the Issuer Trust may have or
assert, except the defense of payment. 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 Trust to pay such amounts
to the Holders. The Guarantor shall give prompt written notice to the Guarantee
Trustee in the event it makes any direct payment hereunder.
SECTION V.2 Waiver of Notice and Demand. The Guarantor hereby waives notice
of acceptance of the Guarantee Agreement and of any liability to which it
applies or may apply, presentment, demand for payment, any right to require a
proceeding first against the Guarantee Trustee, the Issuer Trust 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 V.3 Obligations Not Affected. The obligations, covenants, agreements
and duties of the Guarantor under this Guarantee Agreement 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 Trust of any express or implied
agreement, covenant, term or condition relating to the Capital Securities to be
performed or observed by the Issuer Trust;
(b) the extension of time for the payment by the Issuer Trust of all or any
portion of the Distributions (other than an extension of time for payment of
Distributions that results from the extension of any interest payment period on
the Subordinated Debentures as so provided in the Indenture), Redemption Price,
Liquidation Distribution or any other sums payable under the terms of the
Capital Securities or the extension of time for the performance of any other
obligation under, arising out of, or in connection with, the Capital Securities;
(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 Capital Securities, or any
action on the part of the Issuer Trust 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, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting, the
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Issuer Trust or any of the assets of the Issuer Trust;
(e) any invalidity of, or defect or deficiency in, the Capital 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 (other than payment of the
underlying obligation), 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 V.4 Rights of Holders. The Guarantor expressly acknowledges that:
(i) this Guarantee Agreement will be deposited with the Guarantee Trustee to be
held for the benefit of the Holders; (ii) the Guarantee Trustee has the right to
enforce this Guarantee Agreement on behalf of the Holders; (iii) the Holders of
a Majority in Liquidation Amount of the Capital Securities have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Guarantee Trustee in respect of this Guarantee Agreement or
exercising any trust or power conferred upon the Guarantee Trustee under this
Guarantee Agreement; and (iv) any Holder may institute a legal proceeding
directly against the Guarantor to enforce its rights under this Guarantee
Agreement, without first instituting a legal proceeding against the Guarantee
Trustee, the Issuer Trust or any other Person.
SECTION V.5 Guarantee of Payment. This Guarantee Agreement creates a
guarantee of payment and not of collection. This Guarantee Agreement will not be
discharged except by payment of the Guarantee Payments in full (without
duplication of amounts theretofore paid by the Issuer Trust) or upon the
distribution of Subordinated Debentures to Holders as provided in the Trust
Agreement.
SECTION V.6 Subrogation. The Guarantor shall be subrogated to all rights (if
any) of the Holders against the Issuer Trust in respect of any amounts paid to
the Holders by the Guarantor under this Guarantee Agreement; provided, however,
that the Guarantor shall not (except to the extent required by mandatory
provisions of law) be entitled to enforce or exercise any rights which it may
acquire by way of subrogation or any indemnity, reimbursement or other
agreement, in all cases as a result of payment under this Guarantee Agreement,
at the time of any such payment, any amounts are due and unpaid under this
Guarantee Agreement or any payments are due to the holders of Capital Securities
under the Trust Agreement. If any amount shall be paid to the Guarantor in
violation of the preceding sentence, the Guarantor agrees to hold such amount in
trust for the Holders and to pay over such amount to the Holders.
SECTION V.7 Independent Obligations. The Guarantor acknowledges that its
obligations hereunder are independent of the obligations of the Issuer Trust
with respect to the Capital Securities and that the Guarantor shall be liable as
principal and as debtor hereunder to
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13
make Guarantee Payments pursuant to the terms of this Guarantee Agreement
notwithstanding the occurrence of any event referred to in subsections (a)
through (g), inclusive, of Section 5.3 hereof.
ARTICLE VI
COVENANTS AND SUBORDINATION
SECTION VI.1 Subordination. This Guarantee Agreement 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 Indenture with respect to the Subordinated
Debentures, and the provisions of Article XIII of the Indenture 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.
SECTION VI.2 Pari Passu Guarantees. The obligations of the Guarantor under
this Guarantee Agreement shall rank pari passu with any similar guarantee
agreements issued by the Guarantor on behalf of the holders of preferred or
capital securities issued by the Issuer Trust and with any other security,
guarantee or other obligation that is expressly stated to rank pari passu with
the obligations of the Guarantor under this Guarantee Agreement.
ARTICLE VII
TERMINATION
SECTION VII.1 Termination. This Guarantee Agreement shall terminate and be
of no further force and effect upon (i) full payment of the Redemption Price of
all Capital Securities, (ii) the distribution of Subordinated Debentures to the
Holders in exchange for all of the Capital Securities or (iii) full payment of
the amounts payable in accordance with Article IX of the Trust Agreement upon
liquidation of the Issuer Trust. Notwithstanding the foregoing, this Guarantee
Agreement will continue to be effective or will be reinstated, as the case may
be, if at any time any Holder is required to repay any sums paid with respect to
Capital Securities or this Guarantee Agreement.
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ARTICLE VIII
MISCELLANEOUS
SECTION VIII.1 Successors and Assigns. All guarantees and agreements
contained in this Guarantee Agreement shall bind the successors, assigns,
receivers, trustees and representatives of the Guarantor and shall inure to the
benefit of the Holders of the Capital Securities then outstanding. Except in
connection with a consolidation, merger or sale involving the Guarantor that is
permitted under Article IX of the Indenture and pursuant to which the assignee
agrees in writing to perform the Guarantor's obligations hereunder, the
Guarantor shall not assign its obligations hereunder, and any purported
assignment that is not in accordance with these provisions shall be void.
SECTION VIII.2 Amendments. Except with respect to any changes that do not
materially adversely affect the rights of the Holders (in which case no consent
of the Holders will be required), this Guarantee Agreement may only be amended
with the prior approval of the Holders of not less than a Majority in
Liquidation Amount of the Capital Securities. The provisions of Article VI of
the Trust Agreement concerning meetings of the Holders shall apply to the giving
of such approval.
SECTION VIII.3 Notices. Any notice, request or other communication required
or permitted to be given hereunder shall be in writing, duly signed by the party
giving such notice, and delivered, telecopied (confirmed by delivery of the
original) or mailed by first class mail as follows:
(a) if given to the Guarantor, to the address or telecopy number set forth
below or such other address or telecopy number or to the attention of such other
Person as the Guarantor may give notice to the Holders:
Dillard's, Inc.
1600 Cantrell Road
Little Rock, Arkansas 72701
Facsimile No.: (501) 376-____
Attention: Office of the Secretary
(b) if given to the Issuer Trust, in care of the Guarantee Trustee, at the
Issuer Trust's (and the Guarantee Trustee's) address set forth below or such
other address or telecopy number or to the attention of such other Person as the
Guarantee Trustee on behalf of the Issuer Trust may give notice to the Holders:
c/o The Chase Manhattan Bank
450 West 33rd Street
New York, New York 10001
Facsimile No.: (212) 946-8161
Attention: Corporate Trust Administration
<PAGE>
15
with a copy to:
Dillard's, Inc.
1600 Cantrell Road
Little Rock, Arkansas 72701
Facsimile No.: (501) 376-____
Attention: Office of the Secretary
(c) if given to the Guarantee Trustee:
The Chase Manhattan Bank
450 West 33rd Street
New York, New York 10001
Facsimile No.: (212) 946-8161
Attention: Corporate Trust Administration
(d) if given to any Holder, at the address set forth on the books and records
of the Issuer Trust.
All notices hereunder 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 VIII.4 Benefit. This Guarantee Agreement is solely for the benefit
of the Holders and is not separately transferable from the Capital Securities.
SECTION VIII.5 Interpretation. In this Guarantee Agreement, unless the
context otherwise requires:
(a) capitalized terms used in this Guarantee Agreement but not defined in the
preamble hereto have the respective meanings assigned to them in Section 1.1;
(b) a term defined anywhere in this Guarantee Agreement has the same meaning
throughout;
(c) all references to "the Guarantee Agreement" or "this Guarantee Agreement"
are to this Guarantee Agreement as modified, supplemented or amended from
time to time;
(d) all references in this Guarantee Agreement to Articles and Sections are
to Articles and Sections of this Guarantee Agreement unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning when used
<PAGE>
16
in this Guarantee Agreement unless otherwise defined in this Guarantee Agreement
or unless the context otherwise requires;
(f) a reference to the singular includes the plural and vice versa; and
(g) the masculine, feminine or neuter genders used herein shall include the
masculine, feminine and neuter genders.
SECTION VIII.6 Governing Law. THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO THE CONFLICT OF LAW PRINCIPLES THEREOF.
SECTION VIII.7 Counterparts. This instrument may be executed in any number
of counterparts, each of which so executed shall be deemed to be an original,
but all such counterparts shall together constitute but one and the same
instrument.
<PAGE>
17
THIS GUARANTEE AGREEMENT is executed as of the day and year first above
written.
DILLARD'S, INC.
as Guarantor
By:
-------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
as Guarantee Trustee, and not
in its individual capacity
By:
-------------------------------
Name:
Title:
<PAGE>
EXHIBIT 5-b
[Letterhead of Richards, Layton & Finger, P.A.]
July __, 1998
Dillard's Inc.
1600 Cantrell Road
Little Rock, Arkansas 72201
Re: Dillard's Capital Trust I-V
---------------------------
Ladies and Gentlemen:
We have acted as special Delaware counsel for Dillard's Inc., a
Delaware corporation (the "Company"), Dillard's Capital Trust I, a Delaware
business trust ("Trust I"), Dillard's Capital Trust II, a Delaware business
trust ("Trust II"), Dillard's Capital Trust III, a Delaware business trust
("Trust III"), Dillard's Capital Trust IV, a Delaware business trust ("Trust
IV"), and Dillard's Capital Trust V, a Delaware business trust ("Trust V")
(Trust I, Trust II, Trust III, Trust IV, and Trust V are hereinafter
collectively referred to as the "Trusts" and sometimes hereinafter individually
referred to as a "Trust"), in connection with the matters set forth herein. At
your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of Trust I, as filed with the office of
the Secretary of State of the State of Delaware (the "Secretary of State") on
July 14, 1998;
(b) The Certificate of Trust of Trust II, as filed with the Secretary
of State on July 14, 1998;
(c) The Certificate of Trust of Trust III, as filed with the
Secretary of State on July 14, 1998;
(d) The Certificate of Trust of Trust IV, as filed with the Secretary
of State on July 14, 1998;
<PAGE>
Dillard's Inc.
July __, 1998
Page 2
(e) The Certificate of Trust of Trust V, as filed with the Secretary
of State on July 14, 1998;
(f) The Trust Agreement of Trust I, dated as of July 14, 1998 among
the Company and the trustees named therein;
(g) The Trust Agreement of Trust II, dated as of July 14, 1998 among
the Company and the trustees named therein;
(h) The Trust Agreement of Trust III, dated as of July 14, 1998 among
the Company and the trustees named therein;
(i) The Trust Agreement of Trust IV, dated as of July 14, 1998 among
the Company and the trustees named therein;
(j) The Trust Agreement of Trust V, dated as of July 14, 1998 among
the Company and the trustees named therein;
(k) The Registration Statement (the "Registration Statement") on Form
S-3, including a preliminary prospectus with respect to the Trusts (the
"Prospectus"), relating to the Capital Securities of the Trusts representing
preferred undivided beneficial interests in the assets of the Trusts (each, a
"Capital Security" and collectively, the "Capital Securities"), filed by the
Company and the Trusts with the Securities and Exchange Commission;
(l) A form of Amended and Restated Trust Agreement for each of the
Trusts, to be entered into between the Company, the trustees of the Trust named
therein, and the holders, from time to time, of the undivided beneficial
interests in the assets of such Trust (collectively, the "Trust Agreements" and
individually, a "Trust Agreement"), attached as an exhibit to the Registration
Statement; and
(m) A Certificate of Good Standing for each of the Trusts, dated July
__, 1998, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise defined are
used as defined in the Trust Agreements.
For purposes of this opinion, we have not reviewed any documents other
than the documents listed in paragraphs (a) through (m) above. In particular,
we have not
<PAGE>
Dillard's Inc.
July __, 1998
Page 3
reviewed any document (other than the documents listed in paragraphs (a) through
(m) above) that is referred to in or incorporated by reference into the
documents reviewed by us. We have assumed that there exists no provision in any
document that we have not reviewed that is inconsistent with the opinions stated
herein. We have conducted no independent factual investigation of our own but
rather have relied solely upon the foregoing documents, the statements and
information set forth therein and the additional matters recited or assumed
herein, all of which we have assumed to be true, complete and accurate in all
material respects.
With respect to all documents examined by us, we have assumed (i) the
authenticity of all documents submitted to us as authentic originals, (ii) the
conformity with the originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that each of the
Trust Agreements will constitute the entire agreement among the parties thereto
with respect to the subject matter thereof, including with respect to the
creation, operation and termination of the applicable Trust, and that the Trust
Agreements and the Certificates of Trust will be in full force and effect and
will not be amended, (ii) except to the extent provided in paragraph 1 below,
the due organization or due formation, as the case may be, and valid existence
in good standing of each party to the documents examined by us under the laws of
the jurisdiction governing its organization or formation, (iii) the legal
capacity of natural persons who are parties to the documents examined by us,
(iv) that each of the parties to the documents examined by us has the power and
authority to execute and deliver, and to perform its obligations under, such
documents, (v) the due authorization, execution and delivery by all parties
thereto of all documents examined by us, (vi) the receipt by each Person to whom
a Capital Security is to be issued by the Trusts (collectively, the "Capital
Security Holders") of a Capital Security Certificate for such Capital Security
and the payment for such Capital Security, in accordance with the Trust
Agreements and the Registration Statement, and (vii) that the Capital Securities
are authenticated, issued and sold to the Capital Security Holders in accordance
with the Trust Agreements and the Registration Statement. We have not
participated in the preparation of the Registration Statement or the Prospectus
and assume no responsibility for their contents.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder which are currently in effect.
<PAGE>
Dillard's Inc.
July __, 1998
Page 4
Based upon the foregoing, and upon our examination of such questions
of law and statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
1. Each of the Trusts has been duly created and is validly existing
in good standing as a business trust under the Business Trust Act.
2. The Capital Securities of each Trust will represent valid and,
subject to the qualifications set forth in paragraph 3 below, fully paid and
nonassessable undivided beneficial interests in the assets of the applicable
Trust.
3. The Capital Security Holders, as beneficial owners of the
applicable Trust, will be entitled to the same limitation of personal liability
extended to stockholders of private corporations for profit organized under the
General Corporation Law of the State of Delaware. We note that the Capital
Security Holders may be obligated to make payments as set forth in the Trust
Agreement.
We consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement. We hereby
consent to the use of our name under the heading "Validity of Securities" in the
Prospectus. In giving the foregoing consents, we do not thereby admit that we
come within the category of persons whose consent is required under Section 7 of
the Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission thereunder. Except as stated above, without
our prior written consent, this opinion may not be furnished or quoted to, or
relied upon by, any other person for any purpose.
Very truly yours,
EAM
<PAGE>
EXHIBIT 25-a
----------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
---------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
---------------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
---------------------------------------------
DILLARD'S INC.
(Exact name of obligor as specified in its charter)
DELAWARE 71-0388071
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
1600 CANTRELL ROAD
LITTLE ROCK, ARKANSAS 72201
(Address of principal executive offices) (Zip Code)
---------------------------------------------
DEBT SECURITIES
(Title of the indenture securities)
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
New York State Banking Department, Suite 2310, 5 Empire State Plaza,
Albany, New York 12223. Board of Governors of the Federal Reserve
System 20th and C Street NW, Washington, D.C., 20551 Federal Reserve
Bank of New York, District No. 2, 33 Liberty Street, New York, N.Y.
10045.
Federal Deposit Insurance Corporation, 550 Seventeenth Street NW
Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
-2-
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee,
published pursuant to law or the requirements of its supervising or examining
authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 22nd day of July, 1998 .
THE CHASE MANHATTAN BANK
By /s/ P. J. Gilkeson
------------------------------
P. J. Gilkeson
Vice President
-3-
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business March 31, 1998, in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
DOLLAR AMOUNTS
ASSETS IN MILLIONS
<TABLE>
<CAPTION>
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin................................ $ 12,037
Interest-bearing balances........................ 4,054
Securities:........................................
Held to maturity securities........................ 2,340
Available for sale securities...................... 50,134
Federal funds sold and securities purchased under
agreements to resell............................. 24,982
Loans and lease financing receivables:
Loans and leases, net of unearned income $127,958
Less: Allowance for loan and lease losses 2,797
Less: Allocated transfer risk reserve..... 0
--------
Loans and leases, net of unearned income,
allowance, and reserve........................... 125,161
Trading Assets..................................... 61,820
Premises and fixed assets (including capitalized
leases).......................................... 2,961
Other real estate owned............................ 347
Investments in unconsolidated subsidiaries and
associated companies............................. 242
Customers' liability to this bank on acceptances
outstanding...................................... 1,380
Intangible assets.................................. 1,549
Other assets....................................... 11,727
--------
TOTAL ASSETS....................................... $298,734
========
</TABLE>
-4-
<PAGE>
LIABILITIES
<TABLE>
<CAPTION>
<S> <C>
Deposits
In domestic offices................................. $ 96,682
Noninterest-bearing......................$38,074
Interest-bearing......................... 58,608
-------
In foreign offices, Edge and Agreement,
subsidiaries and IBF's.............................. 72,630
Noninterest-bearing................................. $ 3,289
Interest-bearing......................... 69,341
Federal funds purchased and securities sold under
agreements to repurchase............................... 42,735
Demand notes issued to the U.S. Treasury................ 872
Trading liabilities..................................... 45,545
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less......... 4,454
With a remaining maturity of more than one year
through three years................................ 231
With a remaining maturity of more than three
years.......................................... 106
Bank's liability on acceptances executed and
outstanding 1,380
Subordinated notes and debentures..................... 5,708
Other liabilities..................................... 11,295
TOTAL LIABILITIES..................................... 281,638
--------
EQUITY CAPITAL
Perpetual preferred stock and related surplus 0
Common stock............................................... 1,211
Surplus (exclude all surplus related to preferred stock).. 10,291
Undivided profits and capital reserves..................... 5,579
Net unrealized holding gains (losses)
on available-for-sale securities........................... (1)
Cumulative foreign currency translation adjustments........ 16
TOTAL EQUITY CAPITAL....................................... 17,096
--------
TOTAL LIABILITIES AND EQUITY CAPITAL....................... $298,734
========
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the appropriate Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR. )
-5-
<PAGE>
EXHIBIT 25-b
___________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
_________________________
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
___________________________________________
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
________________________________________
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
__________________________________________________
DILLARD'S INC.
(Exact name of obligor as specified in its charter)
DELAWARE 71-0388071
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) Identification No.)
1600 CANTRELL ROAD
LITTLE ROCK, ARKANSAS 72201
(Address of principal executive offices) (Zip Code)
____________________________________________
SUBORDINATED DEBT SECURITIES
(Title of the indenture securities)
________________________________________________________
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, Suite 2310, 5 Empire State Plaza,
Albany, New York 12223. Board of Governors of the Federal Reserve
System 20th and C Street NW, Washington, D.C., 20551 Federal Reserve
Bank of New York, District No. 2, 33 Liberty Street, New York, N.Y.
10045.
Federal Deposit Insurance Corporation, 550 Seventeenth Street
NW Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
- 2 -
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996,
in connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 22nd day of July, 1998 .
THE CHASE MANHATTAN BANK
By /s/ P. J. GILKESON
-----------------------
P. J. Gilkeson
Vice President
- 3 -
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business March 31, 1998, in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
DOLLAR AMOUNTS
ASSETS IN MILLIONS
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin................................ $ 12,037
Interest-bearing balances........................ 4,054
Securities:........................................
Held to maturity securities........................ 2,340
Available for sale securities...................... 50,134
Federal funds sold and securities purchased under
agreements to resell............................. 24,982
Loans and lease financing receivables:
Loans and leases, net of unearned income $127,958
Less: Allowance for loan and lease losses 2,797
Less: Allocated transfer risk reserve............ 0
--------
Loans and leases, net of unearned income,
allowance, and reserve........................... 125,161
Trading Assets..................................... 61,820
Premises and fixed assets (including capitalized
leases).......................................... 2,961
Other real estate owned............................ 347
Investments in unconsolidated subsidiaries and
associated companies............................. 242
Customers' liability to this bank on acceptances
outstanding...................................... 1,380
Intangible assets.................................. 1,549
Other assets....................................... 11,727
--------
TOTAL ASSETS....................................... $298,734
========
</TABLE>
- 4 -
<PAGE>
LIABILITIES
<TABLE>
<CAPTION>
<S> <C> <C>
Deposits
In domestic offices................................. $ 96,682
Noninterest-bearing................................. $ 38,074
Interest-bearing.................................... 58,608
--------
In foreign offices, Edge and Agreement,subsidiaries
and IBF's.......................................... 72,630
Noninterest-bearing................................ $ 3,289
Interest-bearing................................... 69,341
Federal funds purchased and securities sold under
agreements to repurchase............................. 42,735
Demand notes issued to the U.S. Treasury.............. 872
Trading liabilities................................... 45,545
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less....... 4,454
With a remaining maturity of more than one year
through three years............................... 231
With a remaining maturity of more than three years.. 106
Bank's liability on acceptances executed and
outstanding....................................... 1,380
Subordinated notes and debentures..................... 5,708
Other liabilities..................................... 11,295
TOTAL LIABILITIES..................................... 281,638
--------
<CAPTION>
EQUITY CAPITAL
Perpetual preferred stock and related surplus 0
Common stock.......................................... 1,211
Surplus (exclude all surplus related to preferred
stock)............................................... 10,291
Undivided profits and capital reserves................ 5,579
Net unrealized holding gains (losses)
on available-for-sale securities...................... (1)
Cumulative foreign currency translation adjustments... 16
TOTAL EQUITY CAPITAL.................................. 17,096
--------
TOTAL LIABILITIES AND EQUITY CAPITAL.................. $298,734
========
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named
bank, do hereby declare that this Report of Condition has
been prepared in conformance with the instructions issued
by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness
of this Report of Condition and declare that it has been
examined by us, and to the best of our knowledge and
belief has been prepared in conformance with the in-
structions issued by the appropriate Federal regulatory
authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR.)
-5-
<PAGE>
EXHIBIT 25-c
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
_________________________
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
___________________________________________
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
________________________________________
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
_____________________________________________
DILLARD'S CAPITAL TRUST I
(Exact name of obligor as specified in its charter)
DELAWARE APPLIED FOR
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
1600 CANTRELL ROAD
LITTLE ROCK, ARKANSAS 72201
(Address of principal executive offices) (Zip Code)
_____________________________________________
CAPITAL SECURITIES
(Title of the indenture securities)
- --------------------------------------------------------------------------------
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, Suite 2310, 5 Empire State
Plaza, Albany, New York 12223. Board of Governors of the Federal
Reserve System 20th and C Street NW, Washington, D.C., 20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, N.Y. 10045. Federal Deposit Insurance
Corporation, 550 Seventeenth Street NW Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
-2-
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996,
in connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee,
published pursuant to law or the requirements of its supervising or examining
authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 22nd day of July , 1998 .
THE CHASE MANHATTAN BANK
By /s/ P. J. Gilkeson
---------------------------
P. J. Gilkeson
Vice President
-3-
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business March 31, 1998, in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
DOLLAR AMOUNTS
ASSETS IN MILLIONS
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin................................ $ 12,037
Interest-bearing balances........................ 4,054
Securities:........................................
Held to maturity securities........................ 2,340
Available for sale securities...................... 50,134
Federal funds sold and securities purchased under
agreements to resell............................. 24,982
Loans and lease financing receivables:
Loans and leases, net of unearned income $127,958
Less: Allowance for loan and lease losses 2,797
Less: Allocated transfer risk reserve..... 0
--------
Loans and leases, net of unearned income,
allowance, and reserve........................... 125,161
Trading Assets..................................... 61,820
Premises and fixed assets (including capitalized
leases).......................................... 2,961
Other real estate owned............................ 347
Investments in unconsolidated subsidiaries and
associated companies............................. 242
Customers' liability to this bank on acceptances
outstanding...................................... 1,380
Intangible assets.................................. 1,549
Other assets....................................... 11,727
--------
TOTAL ASSETS....................................... $298,734
========
-4-
<PAGE>
LIABILITIES
Deposits
In domestic offices................................. $ 96,682
Noninterest-bearing........................ $ 38,074
Interest-bearing........................... 58,608
--------
In foreign offices, Edge and Agreement,
subsidiaries and IBF's.............................. 72,630
Noninterest-bearing ................................ $ 3,289
Interest-bearing.................................... 69,341
Federal funds purchased and securities sold under
agreements to repurchase............................. 42,735
Demand notes issued to the U.S. Treasury.............. 872
Trading liabilities................................... 45,545
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less....... 4,454
With a remaining maturity of more than one year.
through three years............................ 231
With a remaining maturity of more than three years.. 106
Bank's liability on acceptances executed and
outstanding.......................................... 1,380
Subordinated notes and debentures..................... 5,708
Other liabilities..................................... 11,295
TOTAL LIABILITIES..................................... 281,638
--------
EQUITY CAPITAL
Perpetual preferred stock and related surplus 0
Common stock.......................................... 1,211
Surplus (exclude all surplus related to preferred
stock)................................................ 10,291
Undivided profits and capital reserves................ 5,579
Net unrealized holding gains (losses)
on available-for-sale securities...................... (1)
Cumulative foreign currency translation adjustments... 16
TOTAL EQUITY CAPITAL.................................. 17,096
--------
TOTAL LIABILITIES AND EQUITY CAPITAL.................. $298,734
========
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named
bank, do hereby declare that this Report of Condition has
been prepared in conformance with the instructions issued
by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness
of this Report of Condition and declare that it has been
examined by us, and to the best of our knowledge and
belief has been prepared in conformance with the in-
structions issued by the appropriate Federal regulatory
authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR.)
-5-
<PAGE>
EXHIBIT 25-d
------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
--------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
--------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
--------------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
--------------------------------------------
DILLARD'S CAPITAL TRUST II
(Exact name of obligor as specified in its charter)
DELAWARE APPLIED FOR
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
1600 CANTRELL ROAD
LITTLE ROCK, ARKANSAS 72201
(Address of principal executive offices) (Zip Code)
--------------------------------------------
CAPITAL SECURITIES
(Title of the indenture securities)
------------------------------------------------------------------------
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, Suite 2310, 5 Empire State
Plaza, Albany, New York 12223. Board of Governors of the Federal
Reserve System 20th and C Street NW, Washington, D.C., 20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, N.Y. 10045.
Federal Deposit Insurance Corporation, 550 Seventeenth Street NW
Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
-2-
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996,
in connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 22nd day of July, 1998.
THE CHASE MANHATTAN BANK
By /s/ P. J. Gilkeson
--------------------
P. J. Gilkeson
Vice President
-3-
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business March 31, 1998, in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
DOLLAR AMOUNTS
ASSETS IN MILLIONS
<TABLE>
<CAPTION>
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin................................ $ 12,037
Interest-bearing balances........................ 4,054
Securities:........................................
Held to maturity securities........................ 2,340
Available for sale securities...................... 50,134
Federal funds sold and securities purchased under
agreements to resell............................. 24,982
Loans and lease financing receivables:
Loans and leases, net of unearned income $127,958
Less: Allowance for loan and lease losses 2,797
Less: Allocated transfer risk reserve...... 0
--------
Loans and leases, net of unearned income,
allowance, and reserve........................... 125,161
Trading Assets..................................... 61,820
Premises and fixed assets (including capitalized
leases).......................................... 2,961
Other real estate owned............................ 347
Investments in unconsolidated subsidiaries and
associated companies............................. 242
Customers' liability to this bank on acceptances
outstanding...................................... 1,380
Intangible assets.................................. 1,549
Other assets....................................... 11,727
--------
TOTAL ASSETS....................................... $298,734
========
</TABLE>
-4-
<PAGE>
LIABILITIES
<TABLE>
<CAPTION>
<S> <C>
Deposits
In domestic offices................................. $ 96,682
Noninterest-bearing........................$38,074
Interest-bearing........................... 58,608
In foreign offices, Edge and Agreement,
subsidiaries and IBF's.............................. 72,630
Noninterest-bearing ................................ $ 3,289
Interest-bearing.................................... 69,341
Federal funds purchased and securities sold under
agreements to repurchase............................. 42,735
Demand notes issued to the U.S. Treasury.............. 872
Trading liabilities................................... 45,545
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less....... 4,454
With a remaining maturity of more than one year
through three years............................ 231
With a remaining maturity of more than three
years.......................................... 106
Bank's liability on acceptances executed and
outstanding 1,380
Subordinated notes and debentures..................... 5,708
Other liabilities..................................... 11,295
TOTAL LIABILITIES..................................... 281,638
--------
EQUITY CAPITAL
Perpetual preferred stock and related surplus 0
Common stock............................................... 1,211
Surplus (exclude all surplus related to preferred stock).. 10,291
Undivided profits and capital reserves..................... 5,579
Net unrealized holding gains (losses)
on available-for-sale securities........................... (1)
Cumulative foreign currency translation adjustments........ 16
TOTAL EQUITY CAPITAL....................................... 17,096
--------
TOTAL LIABILITIES AND EQUITY CAPITAL....................... $298,734
========
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the appropriate Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR. )
-5-
<PAGE>
EXHIBIT 25-e
--------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
-------------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
-------------------------------------------
DILLARD'S CAPITAL TRUST III
(Exact name of obligor as specified in its charter)
DELAWARE APPLIED FOR
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
1600 CANTRELL ROAD
LITTLE ROCK, ARKANSAS 72201
(Address of principal executive offices) (Zip Code)
-------------------------------------------
CAPITAL SECURITIES
(Title of the indenture securities)
--------------------------------------------------------------------
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, Suite 2310, 5 Empire State
Plaza, Albany, New York 12223. Board of Governors of the Federal
Reserve System 20th and C Street NW, Washington, D.C., 20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, N.Y. 10045.
Federal Deposit Insurance Corporation, 550 Seventeenth Street NW
Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
-2-
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996,
in connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 22nd day of July, 1998.
THE CHASE MANHATTAN BANK
By /s/ P. J. Gilkeson
-------------------------
P. J. Gilkeson
Vice President
-3-
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business March 31, 1998, in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
DOLLAR AMOUNTS
ASSETS IN MILLIONS
<TABLE>
<CAPTION>
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin................................ $ 12,037
Interest-bearing balances........................ 4,054
Securities:........................................
Held to maturity securities........................ 2,340
Available for sale securities...................... 50,134
Federal funds sold and securities purchased under
agreements to resell............................. 24,982
Loans and lease financing receivables:
Loans and leases, net of unearned income $127,958
Less: Allowance for loan and lease losses 2,797
Less: Allocated transfer risk reserve....... 0
--------
Loans and leases, net of unearned income,
allowance, and reserve........................... 125,161
Trading Assets..................................... 61,820
Premises and fixed assets (including capitalized
leases).......................................... 2,961
Other real estate owned............................ 347
Investments in unconsolidated subsidiaries and
associated companies............................. 242
Customers' liability to this bank on acceptances
outstanding...................................... 1,380
Intangible assets.................................. 1,549
Other assets....................................... 11,727
--------
TOTAL ASSETS....................................... $298,734
========
</TABLE>
-4-
<PAGE>
LIABILITIES
<TABLE>
<CAPTION>
<S> <C>
Deposits
In domestic offices................................. $ 96,682
Noninterest-bearing.........................$38,074
Interest-bearing............................ 58,608
-------
In foreign offices, Edge and Agreement,
subsidiaries and IBF's.............................. 72,630
Noninterest-bearing ................................ $ 3,289
Interest-bearing.................................... 69,341
Federal funds purchased and securities sold under
agreements to repurchase............................. 42,735
Demand notes issued to the U.S. Treasury.............. 872
Trading liabilities................................... 45,545
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less....... 4,454
With a remaining maturity of more than one year
through three years............................ 231
With a remaining maturity of more than three
years.......................................... 106
Bank's liability on acceptances executed and
outstanding 1,380
Subordinated notes and debentures..................... 5,708
Other liabilities..................................... 11,295
TOTAL LIABILITIES..................................... 281,638
--------
EQUITY CAPITAL
Perpetual preferred stock and related surplus 0
Common stock............................................... 1,211
Surplus (exclude all surplus related to preferred stock).. 10,291
Undivided profits and capital reserves..................... 5,579
Net unrealized holding gains (losses)
on available-for-sale securities........................... (1)
Cumulative foreign currency translation adjustments........ 16
TOTAL EQUITY CAPITAL....................................... 17,096
--------
TOTAL LIABILITIES AND EQUITY CAPITAL....................... $298,734
========
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the appropriate Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR. )
-5-
<PAGE>
EXHIBIT 25-f
----------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
-------------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
-------------------------------------------
DILLARD'S CAPITAL TRUST IV
(Exact name of obligor as specified in its charter)
DELAWARE APPLIED FOR
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
1600 CANTRELL ROAD
LITTLE ROCK, ARKANSAS 72201
(Address of principal executive offices) (Zip Code)
-------------------------------------------
CAPITAL SECURITIES
(Title of the indenture securities)
----------------------------------------------------------------
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, Suite 2310, 5 Empire State
Plaza, Albany, New York 12223. Board of Governors of the Federal
Reserve System 20th and C Street NW, Washington, D.C., 20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, N.Y. 10045.
Federal Deposit Insurance Corporation, 550 Seventeenth Street NW
Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
-2-
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996,
in connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 22nd day of July, 1998.
THE CHASE MANHATTAN BANK
By /s/ P. J. Gilkeson
-----------------------
P. J. Gilkeson
Vice President
-3-
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business March 31, 1998, in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
DOLLAR AMOUNTS
ASSETS IN MILLIONS
<TABLE>
<CAPTION>
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin................................ $ 12,037
Interest-bearing balances........................ 4,054
Securities:........................................
Held to maturity securities........................ 2,340
Available for sale securities...................... 50,134
Federal funds sold and securities purchased under
agreements to resell............................. 24,982
Loans and lease financing receivables:
Loans and leases, net of unearned income $127,958
Less: Allowance for loan and lease losses 2,797
Less: Allocated transfer risk reserve...... 0
--------
Loans and leases, net of unearned income,
allowance, and reserve........................... 125,161
Trading Assets..................................... 61,820
Premises and fixed assets (including capitalized
leases).......................................... 2,961
Other real estate owned............................ 347
Investments in unconsolidated subsidiaries and
associated companies............................. 242
Customers' liability to this bank on acceptances
outstanding...................................... 1,380
Intangible assets.................................. 1,549
Other assets....................................... 11,727
--------
TOTAL ASSETS....................................... $298,734
========
</TABLE>
-4-
<PAGE>
LIABILITIES
<TABLE>
<CAPTION>
<S> <C> <C>
Deposits
In domestic offices................................. $ 96,682
Noninterest-bearing..........................$38,074
Interest-bearing............................. 58,608
-------
In foreign offices, Edge and Agreement,
subsidiaries and IBF's.............................. 72,630
Noninterest-bearing ................................ $ 3,289
Interest-bearing.................................... 69,341
Federal funds purchased and securities sold under
agreements to repurchase............................. 42,735
Demand notes issued to the U.S. Treasury.............. 872
Trading liabilities................................... 45,545
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less....... 4,454
With a remaining maturity of more than one year
through three years............................ 231
With a remaining maturity of more than three
years.......................................... 106
Bank's liability on acceptances executed and
outstanding 1,380
Subordinated notes and debentures..................... 5,708
Other liabilities..................................... 11,295
TOTAL LIABILITIES..................................... 281,638
--------
</TABLE>
EQUITY CAPITAL
<TABLE>
<CAPTION>
<S> <C>
Perpetual preferred stock and related surplus 0
Common stock............................................... 1,211
Surplus (exclude all surplus related to preferred stock).. 10,291
Undivided profits and capital reserves..................... 5,579
Net unrealized holding gains (losses)
on available-for-sale securities........................... (1)
Cumulative foreign currency translation adjustments........ 16
TOTAL EQUITY CAPITAL....................................... 17,096
--------
TOTAL LIABILITIES AND EQUITY CAPITAL....................... $298,734
========
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the appropriate Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR. )
-5-
<PAGE>
EXHIBIT 25-g
__________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
_________________________
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
___________________________________________
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
________________________________________
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
___________________________________________________
DILLARD'S CAPITAL TRUST V
(Exact name of obligor as specified in its charter)
DELAWARE APPLIED FOR
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
1600 CANTRELL ROAD
LITTLE ROCK, ARKANSAS 72201
(Address of principal executive offices) (Zip Code)
____________________________________________
CAPITAL SECURITIES
(Title of the indenture securities)
_________________________________________________________
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
New York State Banking Department, Suite 2310, 5 Empire State Plaza,
Albany, New York 12223. Board of Governors of the Federal Reserve
System 20th and C Street NW, Washington, D.C., 20551 Federal Reserve
Bank of New York, District No. 2, 33 Liberty Street, New York, N.Y.
10045.
Federal Deposit Insurance Corporation, 550 Seventeenth Street
NW Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
- 2 -
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996,
in connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 22nd day of July, 1998 .
THE CHASE MANHATTAN BANK
By /s/ P. J. GILKESON
-----------------------------
P. J. Gilkeson
Vice President
- 3 -
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business March 31, 1998, in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
DOLLAR AMOUNTS
ASSETS IN MILLIONS
<S> <C> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin................................ $ 12,037
Interest-bearing balances........................ 4,054
Securities:........................................
Held to maturity securities........................ 2,340
Available for sale securities...................... 50,134
Federal funds sold and securities purchased under
agreements to resell............................. 24,982
Loans and lease financing receivables:
Loans and leases, net of unearned income $127,958
Less: Allowance for loan and lease losses 2,797
Less: Allocated transfer risk reserve............ 0
--------
Loans and leases, net of unearned income,
allowance, and reserve........................... 125,161
Trading Assets..................................... 61,820
Premises and fixed assets (including capitalized
leases).......................................... 2,961
Other real estate owned............................ 347
Investments in unconsolidated subsidiaries and
associated companies............................. 242
Customers' liability to this bank on acceptances
outstanding...................................... 1,380
Intangible assets.................................. 1,549
Other assets....................................... 11,727
--------
TOTAL ASSETS....................................... $298,734
========
</TABLE>
- 4 -
<PAGE>
LIABILITIES
<TABLE>
<CAPTION>
<S> <C> <C>
Deposits
In domestic offices................................. $ 96,682
Noninterest-bearing..................$38,074
Interest-bearing..................... 58,608
-------
In foreign offices, Edge and Agreement,subsidiaries
and IBF's.......................................... 72,630
Noninterest-bearing................................. $ 3,289
Interest-bearing.................................... 69,341
Federal funds purchased and securities sold under
agreements to repurchase............................. 42,735
Demand notes issued to the U.S. Treasury.............. 872
Trading liabilities................................... 45,545
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less....... 4,454
With a remaining maturity of more than one year
through three years................................ 231
With a remaining maturity of more than three years.. 106
Bank's liability on acceptances executed and
outstanding.......................................... 1,380
Subordinated notes and debentures..................... 5,708
Other liabilities..................................... 11,295
TOTAL LIABILITIES..................................... 281,638
--------
<CAPTION>
EQUITY CAPITAL
Perpetual preferred stock and related surplus 0
Common stock.......................................... 1,211
Surplus (exclude all surplus related to preferred
stock)............................................... 10,291
Undivided profits and capital reserves................ 5,579
Net unrealized holding gains (losses) on available-
for-sale securities.................................. (1)
Cumulative foreign currency translation adjustments... 16
TOTAL EQUITY CAPITAL.................................. 17,096
--------
TOTAL LIABILITIES AND EQUITY CAPITAL.................. $298,734
========
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named
bank, do hereby declare that this Report of Condition has
been prepared in conformance with the instructions issued
by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness
of this Report of Condition and declare that it has been
examined by us, and to the best of our knowledge and
belief has been prepared in conformance with the in-
structions issued by the appropriate Federal regulatory
authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR.)
-5-
<PAGE>
EXHIBIT 25-h
-----------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
-------------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
---------------------------------------------
DILLARD'S INC.
(Exact name of obligor as specified in its charter)
DELAWARE 71-0388071
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
1600 CANTRELL ROAD
LITTLE ROCK, ARKANSAS 72201
(Address of principal executive offices) (Zip Code)
---------------------------------------------
DILLARD'S CAPITAL TRUST I
GUARANTEE OF CAPITAL SECURITIES
(Title of the indenture securities)
<PAGE>
---------------------------------------------
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, Suite 2310, 5 Empire State
Plaza, Albany, New York 12223. Board of Governors of the Federal
Reserve System 20th and C Street NW, Washington, D.C., 20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, N.Y. 10045.
Federal Deposit Insurance Corporation, 550 Seventeenth Street NW
Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 22nd day of July, 1998.
THE CHASE MANHATTAN BANK
By /s/ P. J. Gilkeson
------------------------
P. J. Gilkeson
Vice President
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business March 31, 1998, in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
DOLLAR AMOUNTS
ASSETS IN MILLIONS
<TABLE>
<CAPTION>
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin................................ $ 12,037
Interest-bearing balances........................ 4,054
Securities:........................................
Held to maturity securities........................ 2,340
Available for sale securities...................... 50,134
Federal funds sold and securities purchased under
agreements to resell............................. 24,982
Loans and lease financing receivables:
Loans and leases, net of unearned income $127,958
Less: Allowance for loan and lease losses 2,797
Less: Allocated transfer risk reserve...... 0
--------
Loans and leases, net of unearned income,
allowance, and reserve........................... 125,161
Trading Assets..................................... 61,820
Premises and fixed assets (including capitalized
leases).......................................... 2,961
Other real estate owned............................ 347
Investments in unconsolidated subsidiaries and
associated companies............................. 242
Customers' liability to this bank on acceptances
outstanding...................................... 1,380
Intangible assets.................................. 1,549
Other assets....................................... 11,727
--------
TOTAL ASSETS....................................... $298,734
========
</TABLE>
<PAGE>
LIABILITIES
<TABLE>
<CAPTION>
<S> <C>
Deposits
In domestic offices................................. $ 96,682
Noninterest-bearing.......................$38,074
Interest-bearing...........................58,608
-------
In foreign offices, Edge and Agreement,
subsidiaries and IBF's.............................. 72,630
Noninterest-bearing ................................ $ 3,289
Interest-bearing.................................... 69,341
Federal funds purchased and securities sold under
agreements to repurchase............................. 42,735
Demand notes issued to the U.S. Treasury.............. 872
Trading liabilities................................... 45,545
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less....... 4,454
With a remaining maturity of more than one year
through three years............................ 231
With a remaining maturity of more than three
years.......................................... 106
Bank's liability on acceptances executed and
outstanding 1,380
Subordinated notes and debentures..................... 5,708
Other liabilities..................................... 11,295
TOTAL LIABILITIES..................................... 281,638
--------
</TABLE>
EQUITY CAPITAL
<TABLE>
<CAPTION>
<S> <C>
Perpetual preferred stock and related surplus 0
Common stock............................................... 1,211
Surplus (exclude all surplus related to preferred stock).. 10,291
Undivided profits and capital reserves..................... 5,579
Net unrealized holding gains (losses)
on available-for-sale securities........................... (1)
Cumulative foreign currency translation adjustments........ 16
TOTAL EQUITY CAPITAL....................................... 17,096
--------
TOTAL LIABILITIES AND EQUITY CAPITAL....................... $298,734
========
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the in-structions
issued by the appropriate Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR. )
<PAGE>
EXHIBIT 25-i
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
_________________________
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
___________________________________________
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
________________________________________
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
_____________________________________________
DILLARD'S INC.
(Exact name of obligor as specified in its charter)
DELAWARE 71-0388071
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
1600 CANTRELL ROAD
LITTLE ROCK, ARKANSAS 72201
(Address of principal executive offices) (Zip Code)
_____________________________________________
DILLARD'S CAPITAL TRUST II
GUARANTEE OF CAPITAL SECURITIES
(Title of the indenture securities)
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, Suite 2310, 5 Empire State
Plaza, Albany, New York 12223. Board of Governors of the Federal
Reserve System 20th and C Street NW, Washington, D.C., 20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, N.Y. 10045.
Federal Deposit Insurance Corporation, 550 Seventeenth Street NW
Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
-2-
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996,
in connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee,
published pursuant to law or the requirements of its supervising or examining
authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 22nd day of July, 1998 .
THE CHASE MANHATTAN BANK
By /s/ P. J. Gilkeson
--------------------------------
P. J. Gilkeson
Vice President
-3-
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business March 31, 1998, in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
DOLLAR AMOUNTS
ASSETS IN MILLIONS
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin................................ $ 12,037
Interest-bearing balances........................ 4,054
Securities:........................................
Held to maturity securities........................ 2,340
Available for sale securities...................... 50,134
Federal funds sold and securities purchased under
agreements to resell............................. 24,982
Loans and lease financing receivables:
Loans and leases, net of unearned income $127,958
Less: Allowance for loan and lease losses 2,797
Less: Allocated transfer risk reserve.... 0
--------
Loans and leases, net of unearned income,
allowance, and reserve........................... 125,161
Trading Assets..................................... 61,820
Premises and fixed assets (including capitalized
leases).......................................... 2,961
Other real estate owned............................ 347
Investments in unconsolidated subsidiaries and
associated companies............................. 242
Customers' liability to this bank on acceptances
outstanding...................................... 1,380
Intangible assets.................................. 1,549
Other assets....................................... 11,727
--------
TOTAL ASSETS....................................... $298,734
========
-4-
<PAGE>
LIABILITIES
Deposits
In domestic offices.............................. $ 96,682
Noninterest-bearing........................$38,074
Interest-bearing........................... 58,608
-------
In foreign offices, Edge and Agreement,
subsidiaries and IBF's.............................. 72,630
Noninterest-bearing ................................ $ 3,289
Interest-bearing.................................... 69,341
Federal funds purchased and securities sold under
agreements to repurchase............................. 42,735
Demand notes issued to the U.S. Treasury.............. 872
Trading liabilities................................... 45,545
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less....... 4,454
With a remaining maturity of more than one year .
through three years................................. 231
With a remaining maturity of more than three
years............................................... 106
Bank's liability on acceptances executed and
outstanding 1,380
Subordinated notes and debentures..................... 5,708
Other liabilities..................................... 11,295
TOTAL LIABILITIES..................................... 281,638
--------
EQUITY CAPITAL
Perpetual preferred stock and related surplus 0
Common stock.......................................... 1,211
Surplus (exclude all surplus related to preferred
stock)................................................ 10,291
Undivided profits and capital reserves................ 5,579
Net unrealized holding gains (losses)
on available-for-sale securities...................... (1)
Cumulative foreign currency translation adjustments... 16
TOTAL EQUITY CAPITAL.................................. 17,096
--------
TOTAL LIABILITIES AND EQUITY CAPITAL.................. $298,734
========
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named
bank, do hereby declare that this Report of Condition has
been prepared in conformance with the instructions issued
by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness
of this Report of Condition and declare that it has been
examined by us, and to the best of our knowledge and
belief has been prepared in conformance with the in-
structions issued by the appropriate Federal regulatory
authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR.)
-5-
<PAGE>
EXHIBIT 25-j
------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
-------------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
-------------------------------------------
DILLARD'S INC.
(Exact name of obligor as specified in its charter)
DELAWARE 71-0388071
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
1600 CANTRELL ROAD
LITTLE ROCK, ARKANSAS 72201
(Address of principal executive offices) (Zip Code)
-------------------------------------------
DILLARD'S CAPITAL TRUST III
GUARANTEE OF CAPITAL SECURITIES
(Title of the indenture securities)
<PAGE>
-------------------------------------------
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, Suite 2310, 5 Empire State
Plaza, Albany, New York 12223. Board of Governors of the Federal
Reserve System 20th and C Street NW, Washington, D.C., 20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, N.Y. 10045.
Federal Deposit Insurance Corporation, 550 Seventeenth Street NW
Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 22nd day of July, 1998.
THE CHASE MANHATTAN BANK
By /s/ P. J. Gilkeson
------------------------
P. J. Gilkeson
Vice President
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business March 31, 1998, in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
DOLLAR AMOUNTS
ASSETS IN MILLIONS
<TABLE>
<CAPTION>
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin................................ $ 12,037
Interest-bearing balances........................ 4,054
Securities:........................................
Held to maturity securities........................ 2,340
Available for sale securities...................... 50,134
Federal funds sold and securities purchased under
agreements to resell............................. 24,982
Loans and lease financing receivables:
Loans and leases, net of unearned income $127,958
Less: Allowance for loan and lease losses 2,797
Less: Allocated transfer risk reserve.... 0
--------
Loans and leases, net of unearned income,
allowance, and reserve........................... 125,161
Trading Assets..................................... 61,820
Premises and fixed assets (including capitalized
leases).......................................... 2,961
Other real estate owned............................ 347
Investments in unconsolidated subsidiaries and
associated companies............................. 242
Customers' liability to this bank on acceptances
outstanding...................................... 1,380
Intangible assets.................................. 1,549
Other assets....................................... 11,727
--------
TOTAL ASSETS....................................... $298,734
========
</TABLE>
<PAGE>
LIABILITIES
<TABLE>
<CAPTION>
<S> <C>
Deposits
In domestic offices................................. $ 96,682
Noninterest-bearing..................$38,074
Interest-bearing..................... 58,608
-------
In foreign offices, Edge and Agreement,
subsidiaries and IBF's.............................. 72,630
Noninterest-bearing ................................ $ 3,289
Interest-bearing.................................... 69,341
Federal funds purchased and securities sold under
agreements to repurchase............................. 42,735
Demand notes issued to the U.S. Treasury.............. 872
Trading liabilities................................... 45,545
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less....... 4,454
With a remaining maturity of more than one year
through three years................................ 231
With a remaining maturity of more than three
years.............................................. 106
Bank's liability on acceptances executed and
outstanding 1,380
Subordinated notes and debentures..................... 5,708
Other liabilities..................................... 11,295
TOTAL LIABILITIES..................................... 281,638
--------
</TABLE>
EQUITY CAPITAL
<TABLE>
<CAPTION>
<S> <C>
Perpetual preferred stock and related surplus 0
Common stock............................................... 1,211
Surplus (exclude all surplus related to preferred stock).. 10,291
Undivided profits and capital reserves..................... 5,579
Net unrealized holding gains (losses)
on available-for-sale securities........................... (1)
Cumulative foreign currency translation adjustments........ 16
TOTAL EQUITY CAPITAL....................................... 17,096
--------
TOTAL LIABILITIES AND EQUITY CAPITAL....................... $298,734
========
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the in-structions
issued by the appropriate Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR. )
<PAGE>
EXHIBIT 25-k
___________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
_________________________
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
___________________________________________
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
________________________________________
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
_____________________________________________
DILLARD'S INC.
(Exact name of obligor as specified in its charter)
DELAWARE 71-0388071
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
1600 CANTRELL ROAD
LITTLE ROCK, ARKANSAS 72201
(Address of principal executive offices) (Zip Code)
_____________________________________________
DILLARD'S CAPITAL TRUST IV
GUARANTEE OF CAPITAL SECURITIES
(Title of the indenture securities)
<PAGE>
_____________________________________________
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
New York State Banking Department, Suite 2310, 5 Empire State Plaza,
Albany, New York 12223. Board of Governors of the Federal Reserve
System 20th and C Street NW, Washington, D.C., 20551 Federal Reserve
Bank of New York, District No. 2, 33 Liberty Street, New York, N.Y.
10045.
Federal Deposit Insurance Corporation, 550 Seventeenth Street
NW Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
-2-
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 22nd day of July, 1998.
THE CHASE MANHATTAN BANK
By /s/P.J.Gilkeson
--------------------
P. J. Gilkeson
Vice President
-3-
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business March 31, 1998, in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
DOLLAR AMOUNTS
ASSETS IN MILLIONS
<TABLE>
<CAPTION>
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin................................ $ 12,037
Interest-bearing balances........................ 4,054
Securities:........................................
Held to maturity securities........................ 2,340
Available for sale securities...................... 50,134
Federal funds sold and securities purchased under
agreements to resell............................. 24,982
Loans and lease financing receivables:
Loans and leases, net of unearned income $127,958
Less: Allowance for loan and lease losses 2,797
Less: Allocated transfer risk reserve....... 0
--------
Loans and leases, net of unearned income,
allowance, and reserve........................... 125,161
Trading Assets..................................... 61,820
Premises and fixed assets (including capitalized
leases).......................................... 2,961
Other real estate owned............................ 347
Investments in unconsolidated subsidiaries and
associated companies............................. 242
Customers' liability to this bank on acceptances
outstanding...................................... 1,380
Intangible assets.................................. 1,549
Other assets....................................... 11,727
--------
TOTAL ASSETS....................................... $298,734
========
</TABLE>
-4-
<PAGE>
LIABILITIES
<TABLE>
<CAPTION>
<S> <C>
Deposits
In domestic offices................................. $ 96,682
Noninterest-bearing.............. $38,074
Interest-bearing................. 58,608
-------
In foreign offices, Edge and Agreement,
subsidiaries and IBF's.............................. 72,630
Noninterest-bearing................................. $ 3,289
Interest-bearing.................................... 69,341
Federal funds purchased and securities sold under
agreements to repurchase............................ 42,735
Demand notes issued to the U.S. Treasury.............. 872
Trading liabilities................................... 45,545
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less....... 4,454
With a remaining maturity of more than one year
through three years............................ 231
With a remaining maturity of more than three years.. 106
Bank's liability on acceptances executed and
outstanding 1,380
Subordinated notes and debentures..................... 5,708
Other liabilities..................................... 11,295
TOTAL LIABILITIES..................................... 281,638
--------
</TABLE>
EQUITY CAPITAL
<TABLE>
<CAPTION>
<S> <C>
Perpetual preferred stock and related surplus 0
Common stock........................................... 1,211
Surplus (exclude all surplus related to
preferred stock)..................................... 10,291
Undivided profits and capital reserves................. 5,579
Net unrealized holding gains (losses)
on available-for-sale securities....................... (1)
Cumulative foreign currency translation adjustments.... 16
TOTAL EQUITY CAPITAL................................... 17,096
--------
TOTAL LIABILITIES AND EQUITY CAPITAL................... $298,734
========
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named
bank, do hereby declare that this Report of Condition has
been prepared in conformance with the instructions issued
by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness
of this Report of Condition and declare that it has been
examined by us, and to the best of our knowledge and
belief has been prepared in conformance with the in-
structions issued by the appropriate Federal regulatory
authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR.)
-5-
<PAGE>
EXHIBIT 25-l
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
_________________________
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
___________________________________________
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
________________________________________
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
_____________________________________________
DILLARD'S INC.
(Exact name of obligor as specified in its charter)
DELAWARE 71-0388071
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
1600 CANTRELL ROAD
LITTLE ROCK, ARKANSAS 72201
(Address of principal executive offices) (Zip Code)
_____________________________________________
DILLARD'S CAPITAL TRUST V
GUARANTEE OF CAPITAL SECURITIES
(Title of the indenture securities)
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, Suite 2310, 5 Empire State
Plaza, Albany, New York 12223. Board of Governors of the Federal
Reserve System 20th and C Street NW, Washington, D.C., 20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, N.Y. 10045.
Federal Deposit Insurance Corporation, 550 Seventeenth Street NW
Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
-2-
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee,
published pursuant to law or the requirements of its supervising or examining
authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 22nd day of July, 1998 .
THE CHASE MANHATTAN BANK
By /s/ P. J. Gilkeson
-------------------------------------
P. J. Gilkeson
Vice President
-3-
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business March 31, 1998, in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
DOLLAR AMOUNTS
ASSETS IN MILLIONS
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin................................ $ 12,037
Interest-bearing balances........................ 4,054
Securities:........................................
Held to maturity securities........................ 2,340
Available for sale securities...................... 50,134
Federal funds sold and securities purchased under
agreements to resell............................. 24,982
Loans and lease financing receivables:
Loans and leases, net of unearned income $127,958
Less: Allowance for loan and lease losses 2,797
Less: Allocated transfer risk reserve.... 0
--------
Loans and leases, net of unearned income,
allowance, and reserve........................... 125,161
Trading Assets..................................... 61,820
Premises and fixed assets (including capitalized
leases).......................................... 2,961
Other real estate owned............................ 347
Investments in unconsolidated subsidiaries and
associated companies............................. 242
Customers' liability to this bank on acceptances
outstanding...................................... 1,380
Intangible assets.................................. 1,549
Other assets....................................... 11,727
--------
TOTAL ASSETS....................................... $298,734
========
-4-
<PAGE>
LIABILITIES
Deposits
In domestic offices.............................. $ 96,682
Noninterest-bearing........................$38,074
Interest-bearing........................... 58,608
-------
In foreign offices, Edge and Agreement,
subsidiaries and IBF's........................... 72,630
Noninterest-bearing ............................. $ 3,289
Interest-bearing................................. 69,341
Federal funds purchased and securities sold under
agreements to repurchase......................... 42,735
Demand notes issued to the U.S. Treasury........... 872
Trading liabilities................................ 45,545
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less.... 4,454
With a remaining maturity of more than one year .
through three years.............................. 231
With a remaining maturity of more than three
years............................................ 106
Bank's liability on acceptances executed and
outstanding 1,380
Subordinated notes and debentures.................. 5,708
Other liabilities.................................. 11,295
TOTAL LIABILITIES.................................. 281,638
--------
EQUITY CAPITAL
Perpetual preferred stock and related surplus 0
Common stock....................................... 1,211
Surplus (exclude all surplus related to preferred
stock)............................................. 10,291
Undivided profits and capital reserves............. 5,579
Net unrealized holding gains (losses)
on available-for-sale securities................... (1)
Cumulative foreign currency translation
adjustments........................................ 16
TOTAL EQUITY CAPITAL............................... 17,096
--------
TOTAL LIABILITIES AND EQUITY CAPITAL............... $298,734
========
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named
bank, do hereby declare that this Report of Condition has
been prepared in conformance with the instructions issued
by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness
of this Report of Condition and declare that it has been
examined by us, and to the best of our knowledge and
belief has been prepared in conformance with the in-
structions issued by the appropriate Federal regulatory
authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR.)
-5-
