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.)
Underwriting Agreement Basic Provisions
_________, 1998
1. Dillard's, Inc. (the "Company"), proposes from time to
time to cause one or more of Dillard's Capital Trust I, Dillard's
Capital Trust II, Dillard's Capital Trust III, Dillard's Capital
Trust IV or Dillard's Capital Trust V (each an "Issuer Trust,"
and collectively the "Issuer Trusts") to issue its capital
securities ("Capital Securities") guaranteed by the Company to
the extent described in the Prospectus (as defined below) with
respect to distributions and amounts payable upon liquidation or
redemption pursuant to a Capital Securities Guarantee Agreement
to be dated as of a date specified in this Agreement executed and
delivered by the Company and The Chase Manhattan Bank, as trustee
(the "Guarantee Trustee"), for the benefit of the holders from
time to time of the Capital Securities (the "Guarantee"; together
with the Capital Securities, the "Registered Securities").
The specified Issuer Trust will use the proceeds from
the sale of the Capital Securities and the sale of Common
Securities (as defined below) to purchase from the Company an
aggregate principal amount of its Subordinated Deferrable
Interest Debentures (the "Subordinated Debentures") equal to the
aggregate liquidation amount of the Capital Securities and Common
Securities issued by such Issuer Trust. The Subordinated
Debentures will be issued under a Subordinated Indenture to be
dated as of ____________ __, 1998 between the Company and The
Chase Manhattan Bank, as trustee (the "Indenture Trustee") (as
amended and supplemented from time to time the "Subordinated Debt
Indenture"). With respect to any issuance of Capital Securities
by an Issuer Trustee, the Company will also be the holder of one
hundred percent of the common securities representing undivided
beneficial interests in the assets of the specified Issuer Trust
(the "Common Securities" and together with the Capital
Securities, the "Trust Securities"). Each Issuer Trust will have
been created under Delaware law pursuant to the filing of a
Certificate of Trust (each, a "Certificate of Trust") with the
Secretary of State of the State of Delaware, and will be governed
by an Amended and Restated Trust Agreement (each, a "Trust
Agreement") among the Company, 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"), and two
individuals who will be selected by the holders of the Common
Securities and the holders from time to time of the Trust
Securities. The Company, as holder of the Common Securities of
each Issuer Trust, has appointed the Issuer Trustees and two
individuals who are employees or officers of or affiliated with
the Company to act as administrators with respect to the Issuer
Trust (the "Administrators"). The Chase Manhattan Bank as
Property Trustee, will act as Indenture Trustee for the purposes
of the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act").
The Registered 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. Each of the specified Issuer Trusts and the Company
jointly and severally represents and warrants to, and agrees
with, each of the Underwriters that:
(a) A registration statement on Form S-3 relating to
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 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.
(c) (i) The Subordinated Debt Indenture 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 Subordinated
Debentures 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 Subordinated Debt Indenture, issued and outstanding
obligations of the Company entitled to the benefits of the
Subordinated Debt Indenture. (ii) The Guarantee has been
qualified under the Trust Indenture Act and has been duly
authorized and, executed and delivered (assuming due
execution and delivery thereof by the Guarantee Trustee),
will be a valid and binding agreement of the Company. (iii)
The Trust Agreement has been qualified under the Trust
Indenture Act and has been duly authorized and, executed and
delivered (assuming due execution and delivery thereof by
each party thereto other than the Company), will be a valid
and binding agreement of the Company, the Issuer Trustees
and the Administrators. The Securities described in the
Terms Agreement have been duly authorized by the Trust
Agreement and, when executed and authenticated in accordance
with the provisions of the Trust Agreement and delivered to
and paid for by the Underwriters in accordance with the
terms of this Agreement, will be validly issued and (subject
to the terms of the Trust Agreement) fully paid and non-
assessable undivided beneficial interests in the assets of
the Issuer Trust, and the issuance of such Securities will
not be subject to any preemptive or similar rights. Holders
of the Securities will be entitled to the same limitation of
personal liability as that extended to stockholders of
private corporations for profit organized under the General
Corporation Law of the State of Delaware. The Common
Securities have been duly authorized by the Trust Agreement
and, when issued and delivered to the Company against
payment therefor as described in the Prospectus, will be
validly issued undivided beneficial interests in the assets
of the Issuer Trust, and the issuance of such Common
Securities will not be subject to any preemptive rights.
(iv) 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 Subordinated Debentures and
the Securities as contemplated herein. (v) The Subordinated
Debentures and 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 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
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. Each of the Company and the Issuer Trust 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
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
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, 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, offer, sell, contract to sell or otherwise
dispose of any debt securities of the Company or any
securities with characteristics similar to those of the
Securities (other than (i) the Securities and (ii)
Commercial Paper issued in the ordinary course of business)
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
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, the
Subordinated Debt 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 Indenture Trustee and any agent of the Indenture Trustee
and the fees and disbursements of counsel for the Indenture
Trustee in connection with the Subordinated Debt 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
Securities, with respect to the incorporation of the
Company, the validity of the Subordinated Debt 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 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;
(viii) The Subordinated Debentures 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 Subordinated Debt Indenture; and the
Securities, other than any Contract Securities, and the
Subordinated Debt Indenture conforms, 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 Subordinated Debt Indenture and the
Guarantee have 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 applicability relating to or
affecting creditors' rights and to general equity
principles; the Subordinated Debt 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 Subordinated Debt Indenture and the
issuance of the Subordinated Debentures have been paid;
(xi) The issue and sale of the Subordinated
Debentures and the Securities and the execution and
delivery by the Issuer Trust of, and the performance of
its obligations under, this Agreement and the execution
and delivery by the Company of, and the performance by
the Company of its obligations under, this Agreement,
the Subordinated Debt Indenture, the Securities, the
Subordinated Debentures, the Trust Agreement, any
Delayed Delivery Contracts 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 Issuer Trust, 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 Issuer Trust, the Company or any of its
subsidiaries is a party or by which the Issuer Trust,
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 Issuer Trust, 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 Issuer Trust, 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, Subordinated Debt Indenture,
Securities, Subordinated Debentures, Trust Agreement or
any Delayed Delivery Contracts, 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 Trust is not and, after giving
effect to the offering and sale of the Securities and
the application of the proceeds thereof as described in
the Prospectus, will not be an "investment company" as
such term is defined in the Investment Company Act of
1940, as amended;
(xiii) Such counsel is of the opinion
ascribed to it under the caption "Certain Federal
Income Tax Consequences" in the Prospectus Supplement;
(xiv) 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
(xv) The Registration Statement and the
Prospectus as amended or supplemented and any further
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.
The opinion set forth in clause (xiii) may be given by
Simpson Thacher & Bartlett, special tax counsel to the Issuer
Trust and the Company.
(d) Richards, Layton & Finger, P.A., special Delaware
counsel for the Issuer Trust or 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 Issuer Trust has been duly created
and is validly existing in good standing as a business
trust under the Delaware Business Trust Act and under
the Trust Agreement and the Delaware Business Trust Act
has the trust power and authority to conduct its
business, all as described in the Registration
Statement and Prospectus;
(ii) assuming due authorization, execution
and delivery of the Trust Agreement by the Company, the
Administrators and the Issuer Trustees, the Trust
Agreement is a legal, valid and binding agreement of
the Company, the Administrators and the Issuer Trustees
and is enforceable against the Company, the
Administrators and the Issuer Trustees, in accordance
with its terms, subject, as to enforcement, to the
effect upon the Trust Agreement of (i) bankruptcy,
insolvency, moratorium, receivership, reorganization,
liquidation, fraudulent conveyance and transfer, and
other similar laws relating to or affecting the rights
and remedies of creditors generally, (ii) principles of
equity, including applicable law relating to fiduciary
duties (regardless of whether considered and applied in
a proceeding in equity or at law), and (iii) the effect
of applicable public policy on the enforceability of
provisions relating to indemnification or contribution;
(iii) under the Trust Agreement and the
Delaware Business Trust Act, the execution and delivery
of the this Agreement by the Issuer Trust, and the
performance by the Issuer Trust of its obligations
thereunder, have been duly authorized by all necessary
trust action on the part of the Issuer Trust;
(iv) the Capital Securities have been duly
authorized by the Trust Agreement and are duly and
validly issued and, subject to the qualifications set
forth herein, will be fully paid and nonassessable
undivided beneficial interests in the assets of the
Issuer Trust; the holders of Capital Securities, as
beneficial owners of the Issuer 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;
(v) the Common Securities have been duly
authorized by the Trust Agreement and are duly and
validly issued undivided beneficial interests in the
assets of the Trust;
(vi) under the Trust Agreement and the
Delaware Business Trust Act, the issuance of the Trust
Securities is not subject to preemptive rights;
(vii) the statements in the Basic Prospectus
and the Prospectus Supplement under the caption "The
Issuer Trusts" and "Description of Capital Securities"
and the statements in the Prospectus Supplement under
the caption "Relationship Among the Capital Securities,
the Subordinated Debentures and the Guarantee," insofar
as such statements constitute statements of Delaware
law, are fairly presented;
(viii) the issuance and the sale of the
Trust Securities by the Issuer Trust, the execution,
delivery and performance by the Issuer Trust of this
Agreement, the consummation by the Issuer Trust of the
transactions contemplated by this Agreement and
compliance by the Issuer Trust with its obligations
under this Agreement do not violate (A) the Certificate
or the Trust Agreement, or (B) any applicable Delaware
law or Delaware administrative regulation;
(ix) after due inquiry, limited to, and
solely to the extent disclosed on (a date immediately
prior to) the Closing Date, the court dockets for
active cases of the Court of Chancery of the State of
Delaware in and for New Castle County, Delaware, of the
Superior Court of the State of Delaware in and for New
Castle County, Delaware, and of the United States
Federal District Court sitting in the State of
Delaware, we do not know of any legal or governmental
proceeding pending against the Issuer Trust;
(x) no authorization, approval, consent or
order of any Delaware court or any Delaware
governmental authority or Delaware agency is required
to be obtained by the Issuer Trust solely in connection
with the issuance and sale of the Trust Securities; and
(xi) the Capital Security Holders (other
than those Capital Security Holders who reside or are
domiciled in the State of Delaware) will have no
liability for income taxes imposed by the State of
Delaware solely as a result of their participation in
the Issuer Trust, and the Issuer Trust will not be
liable for any income tax imposed by the State of
Delaware.
In rendering such opinion, such counsel may note that
Holders of Trust Securities may be obligated, pursuant to the
Trust Agreement, to (i) provide indemnity and security in
connection with and pay taxes or other governmental charges
arising from transfers of certificates for Trust Securities and
the issuance of replacement certificates for Trust Securities,
(ii) provide security and indemnity in connection with requests
of or directions to the Property Trustee to exercise its rights
and remedies under the Trust Agreement and (iii) undertake as a
party litigant to pay costs in any suit for the enforcement of
any right or remedy under the Trust Agreement or against the
Property Trustee, to the extent provided in the Trust Agreement.
(e) 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;
(f) (i) Neither the Issuer Trust nor 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 Issuer Trust, the
Company or any of its subsidiaries or any change, or any
development involving a prospective change, in or affecting
the general affairs, management, financial position,
stockholders' equity or results of operations of the Issuer
Trust, 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;
(g) 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 Issuer Trust, 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;
(h) 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
(i) The Issuer Trust and Company shall have furnished
or caused to be furnished to the Representatives at the
Closing Date for the Securities a certificate or
certificates of an Administrator of the Issuer Trust and an
officer of the Company, respectively, 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 Issuer Trust and
the Company of all of their respective obligations hereunder
to be performed at or prior to such Closing Date, as to the
matters set forth in subsections (a) and (f) of this Section
and as to such other matters as the Representatives may
reasonably request.
7. (a) Each of the Company and the Issuer Trust, jointly
and severally, 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 neither the Company
nor the Issuer Trust shall 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 or
the Issuer Trust 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 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
Issuer Trust, the Issuer Trustees, the Administrators and the
Company against any losses, claims, damages or liabilities to
which such parties 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 or the Issuer Trust by such
Underwriter through the Representatives expressly for use
therein; and will reimburse the Company and the Issuer Trust for
any legal or other expenses reasonably incurred by the Company
and the Issuer Trust 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
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 and the Issuer Trust 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 and the Issuer Trust
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 and the Issuer Trust 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
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 and the Issuer Trust
under this Section 7 shall be in addition to any liability which
the Company and the Issuer Trust 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 the Administrators of the Issuer Trust and to each person, if
any, who controls the Company or the Issuer Trust 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
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,
the Issuer Trust, the Administrators 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 controlling person
of the Company, or on behalf of the Issuer Trust, the Issuer
Trustee, the Administrators or any person controlling the Issuer
Trust, and shall survive delivery of and payment for the
Securities.
Anything herein to the contrary notwithstanding, the
indemnity agreement of the Company and the Issuer Trust 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 or the Issuer Trust 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 or an Administrator 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 or the Issuer Trust the matter has been
settled by controlling precedent, the Company or the Issuer Trust
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, neither the Company nor the Issuer Trust shall
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 or
the Issuer Trust as provided herein, the Company and the Issuer
Trust 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 and the Issuer Trust 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.
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 or the Issuer Trust 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, the Issuer Trust and, to the extent
provided in Section 7 and Section 9 hereof, the officers and
directors of the Company, the Administrator, the Issuer Trustee
and each person who controls the Company, the Issuer Trust 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.
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"),]
[$]
principal amount of the Company's [Insert title of securities]
("Securities"), offered by the Company's Prospectus dated
, 19 and a Prospectus Supplement dated , 19 ,
relating thereto, receipt of copies of which is hereby
acknowledged, at % of the principal amount thereof plus accrued
interest from , 19 , if any, and on the
further terms and conditions set forth in this Delayed Delivery
Contract ("Contract").
[If two or more delayed closings, insert the following:
The undersigned will purchase from the Company as of
the date hereof, for delivery on the dates set forth below,
Securities in the principal amounts set forth below:
Delivery Date Principal Amount
[$]
[$]
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
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:
ANNEX II
DILLARD'S, INC.
("Company")
Capital Securities
TERMS AGREEMENT
,19__
Dillard's, Inc.
1600 Cantrell Road
Little Rock, Arkansas 72201
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 The Chase
Manhattan Bank, as Trustee, on the following terms:
Designation of the Series of Capital Securities
Issuer Trust: Dillard's Capital Trust __
Aggregate Number of Capital Securities:
Price to Public:
Underwriters' Compensation per Capital Security:
Purchase Price: % of the principal amount of the
Securities, plus accrued interest from to [and accrued
amortization, if any, from to ]
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.
Delayed Delivery contracts: [None.] [Delivery Date[s]
shall be , 19 . Underwriters' fee is % of
the principal amount of the Contract Securities.]
Form:
Other Terms:
[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.]
[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:
SCHEDULE A
Principal
Underwriter Amount
Total. . . . . . . . . . . . . . . . . . . . . . [$]
=========
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:
DILLARD'S CAPITAL TRUST ________
By
Name:
Title:
ANNEX III
Pursuant to Section 6 (e) 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 con
densed 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
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
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
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.
_______________________________
*/ Insert date which is third full business day prior to
Closing Date under the Terms Agreement.