Exhibit 4-j
TRUST AGREEMENT
TRUST AGREEMENT, dated as of July 14, 1998 (the "Trust
Agreement"), between Xxxxxxx'x, Inc., a Delaware corporation (the
"Depositor"), and Chase Manhattan Bank Delaware, a Delaware
banking corporation, as Delaware Trustee (the "Delaware
Trustee"). The Depositor and the Delaware Trustee hereby agree
as follows:
1. The trust created hereby (the "Trust") shall be known as
"Dillard's Capital Trust III" in which name the Delaware Trustee,
or the Depositor to the extent provided herein, may engage in the
transactions contemplated hereby, make and execute contracts, and
xxx and be sued.
2. The Depositor hereby assigns, transfers conveys and sets
over to the Delaware Trustee the sum of $10. The Delaware
Trustee hereby acknowledges receipt of such amount in trust from
the Depositor, which amount shall constitute the initial trust
estate. The Delaware Trustee hereby declares that it will hold
the trust estate in trust for the Depositor. It is the intention
of the parties hereto that the Trust created hereby constitute a
business trust under Chapter 38 of Title 12 of the Delaware Code,
12 Del. C. Sec 3801, et seq. (the "Business Trust Act"), and that
this document constitutes the governing instrument of the Trust.
The Delaware Trustee is hereby authorized and directed to execute
and file a certificate of trust in the form of exhibit A attached
hereto with the Delaware Secretary of State in accordance with
the provisions of the Business Trust Act.
3. The Depositor and the Delaware Trustee will enter into an
amended and restated Trust Agreement, satisfactory to each such
party and substantially in the form included as an exhibit to the
1933 Act Registration Statement (as defined below), to provide
for the contemplated operation of the Trust created hereby and
the issuance of the Capital Securities and Common Securities
referred to therein. Prior to the execution and delivery of such
amended and restated Trust Agreement, the Delaware Trustee shall
not have any duty or obligation hereunder or with respect to the
trust estate, except as otherwise required by applicable law or
as may be necessary to obtain prior to such execution and
delivery any licenses, consents or approvals required by
applicable law or otherwise.
4. The Depositor and the Delaware Trustee hereby authorize and
direct the Depositor, as the sponsor of the Trust, (i) to file
with the Securities and Exchange Commission (the "Commission")
and execute, in each case on behalf of the Trust, (a) the
Registration Statement on Form S-3 (the "1933 Act Registration
Statement"), including any pre-effective or post-effective
amendments to the 1933 Act Registration Statement, relating to
the registration under the Securities Act of 1933, as amended, of
the Capital Securities of the Trust and possibly certain other
securities and (b) a Registration Statement on Form 8-A (the
"1934 Act Registration Statement") (including all pre-effective
and post-effective amendments thereto) relating to the
registration of the Capital Securities of the Trust under the
Securities Exchange Act of 1934, as amended; (ii) to file with
the New York Stock Exchange or any other national stock exchange
or The Nasdaq National Market (each, an "Exchange") and execute
on behalf of the Trust one or more listing applications and all
other applications, statements, certificates, agreements and
other instruments as shall be necessary or desirable to cause the
Capital Securities to be listed on any of the Exchanges; (iii) to
file and execute on behalf of the Trust such applications,
reports, surety bonds, irrevocable consents, appointments of
attorney for service of process and other papers and documents as
shall be necessary or desirable to register the Capital
Securities under the securities or blue sky laws of such
jurisdictions as the Depositor, on behalf of the Trust, may deem
necessary or desirable and (iv) to execute on behalf of the Trust
that certain Underwriting Agreement relating to the Capital
Securities, among the Trust, the Depositor and the several
Underwriters named therein, substantially in the form included as
an exhibit to the 1933 Act Registration Statement. In the event
that any filing referred to in clauses (i), (ii) and (iii) above
is required by the rules and regulations of the Commission, an
Exchange or state securities or blue sky laws, to be executed on
behalf of the Trust by the Delaware Trustee, the Delaware
Trustee, in its capacity as a Trustee of the Trust, is hereby
authorized and, to the extent so required, directed to join in
any such filing and to execute on behalf of the Trust any and all
of the foregoing, it being understood that the Delaware Trustee,
in its capacity as a Trustee of the Trust, shall not be required
to join in any such filing or execute on behalf of the Trust any
such document unless required by the rules and regulations of the
Commission, the Exchange or state securities or blue sky laws.
In connection with the filings referred to above, the Depositor,
hereby constitutes and appoints Xxxxx X. Xxxxxxx, as its true and
lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for the Depositor or in the
Depositor's name, place and stead, in any and all capacities, to
sign any and all amendments (including post-effective amendments)
to the 1933 Act Registration Statement and the 1934 Act
Registration Statement and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the
Commission, the Exchange and administrators of state securities
or blue sky laws, granting unto said attorneys-in-fact and agents
full power and authority to do and perform each and every act and
thing requisite and necessary to be done in connection therewith,
as fully to all intents and purposes as the Depositor might or
could to in person, hereby ratifying and confirming all that said
attorney-in-fact and agent, or respective substitute or
substitutes, shall do or cause to be done by virtue hereof.
5. This Trust Agreement may be executed in one or more
counterparts.
6. The number of Trustees initially shall be one (1) and
thereafter the number of Trustees shall be such number as shall
be fixed from time to time by a written instrument signed by the
Depositor which may increase or decrease the number of Trustees;
provided, however, that to the extent required by the Business
Trust Act, one Trustee shall either be a natural person who is a
resident of the State of Delaware or, if not a natural person, an
entity which has its principal place of business in the State of
Delaware and otherwise meets the requirements of applicable
Delaware law. Subject to the foregoing, the Depositor is
entitled to appoint or remove without cause any Trustee at any
time. The Delaware Trustee may resign upon thirty (30) days'
prior notice to the Depositor.
7. This Trust Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without
regard to conflict of laws of principles).
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have caused this
Trust Agreement to be duly executed as of the day and year first
above written.
XXXXXXX'X, INC., as Depositor
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Vice President,
Treasurer and
Assistant Secretary
CHASE MANHATTAN BANK DELAWARE,
as Delaware Trustee
By: /s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: Trust Officer
