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EXHIBIT 1
FEDERATED DEPARTMENT STORES, INC.
6 5/8% SENIOR NOTES DUE 2011
UNDERWRITING AGREEMENT
March 21, 2000
Credit Suisse First Boston Corporation
Banc of America Securities LLC
Chase Securities Inc.
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
Banc One Capital Markets, Inc.
PNC Capital Markets, Inc.
c/o Credit Suisse First Boston Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Federated Department Stores, Inc., a Delaware corporation (the
"Company"), proposes, subject to the terms and conditions stated herein, to
issue and sell to you (the "Underwriters") an aggregate of $500,000,000
principal amount of 6 5/8% Senior Notes Due 2011 (the "Notes").
1. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) A registration statement on Form S-3 (File No. 333-76789)
in respect of the Notes has been filed with the Securities and Exchange
Commission (the "Commission"); such registration statement and any
post-effective amendment thereto, each in the form heretofore delivered or to be
delivered to the Underwriters without exhibits thereto, but with documents
incorporated by reference in the prospectus contained therein, have been
declared effective by the Commission in such form; no other document with
respect to such registration statement or document incorporated by reference
therein has heretofore been filed or transmitted for filing with the Commission
(other than prospectuses filed or to be filed pursuant to Rule 424(b) of the
rules and regulations of the Commission under the Securities Act of 1933, as
amended (the "Act"), each in the form heretofore delivered or to be delivered to
the Underwriters); 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 (any preliminary prospectus
included in such registration statement or filed with the Commission pursuant to
Rule 424(a) under the Act is hereinafter called a "Preliminary Prospectus"; the
various parts of such registration statement, including all exhibits thereto and
the documents incorporated by reference in the prospectus contained in the
registration statement at the time such part of the registration statement
became effective but excluding Form T-1, each as amended at the time such part
of the registration statement became effective, are hereinafter collectively
called the "Registration Statement"; the prospectus relating to the Notes, in
the form
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in which it has most recently been filed, or transmitted for filing, with the
Commission on or prior to the date of this Agreement, being hereinafter called
the "Prospectus"; any reference herein to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the Act, as of the date
of such Preliminary Prospectus or Prospectus, as the case may be; any reference
to any amendment or supplement to any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include any documents filed after the date of
such Preliminary Prospectus or Prospectus, as the case may be, under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated by reference in such Preliminary Prospectus or Prospectus, as the
case may be; any reference to any amendment to the Registration Statement shall
be deemed to refer to and include any annual report of the Company filed
pursuant to Sections 13(a) or 15(d) of the Exchange Act after the effective date
of the Registration Statement that is incorporated by reference in the
Registration Statement; and any reference to the Prospectus as amended or
supplemented shall be deemed to refer to the Prospectus as amended or
supplemented in relation to the Notes in the form in which it is filed with the
Commission pursuant to Rule 424(b) under the Act in accordance with Section 5(a)
hereof, including any documents incorporated by reference therein as of the date
of such filing);
(b) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder, and none of such documents 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; and any further
documents so filed and incorporated by reference in the Prospectus or any
further amendment or supplement thereto, when such documents become effective or
are filed with the Commission, as the case may be, will conform in all material
respects to the requirements of the Act or the Exchange Act, as applicable, and
the rules and regulations of the Commission thereunder and will not contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with information
furnished in writing to the Company by the Underwriters through Credit Suisse
First Boston Corporation expressly for use in the Prospectus as amended or
supplemented;
(c) The Registration Statement and the Prospectus conform, and
any further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of the Act
and the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), and
the rules and regulations of the Commission thereunder and do not and will not,
as of the applicable effective date as to the Registration Statement and any
amendment thereto and as of the applicable filing date as to the Prospectus and
any amendment or supplement thereto, contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions made
in reliance upon and in conformity with information furnished in writing to the
Company by the Underwriters through Credit Suisse First Boston Corporation
expressly for use in the Prospectus as amended or supplemented;
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(d) There has not been any material adverse change in the
business, financial position or results of operations of the Company and its
subsidiaries, taken as a whole, from the respective dates as of which
information is given in the Registration Statement and the Prospectus. Neither
the Company nor any of its subsidiaries has sustained since the date of the
latest audited financial statements included or incorporated by reference in the
Prospectus any material 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, since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any change in the
capital stock (other than issuances and forfeitures of stock in connection with
equity-based compensation plans of executive officers of the Company,
repurchases of stock under the Company's existing stock repurchase program or as
set forth or contemplated in the Prospectus as amended or supplemented), or any
increase in excess of $25,000,000 in long-term debt of the Company or any of its
subsidiaries otherwise than as set forth or contemplated in the Prospectus as
amended or supplemented, or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the general
affairs, management, financial position, shareholders' 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;
(e) The Company and its subsidiaries have good and marketable
title to all real property and title to all personal property owned by them, in
each case free and clear of all liens, encumbrances and defects except such as
are disclosed in the Prospectus as amended or supplemented, or as do not,
individually or in the aggregate, have a material adverse effect on the
business, financial position or results of operations or reasonably foreseeable
prospects of the Company and its subsidiaries taken as a whole (a "Material
Adverse Effect"); 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 would not, individually or in the
aggregate, have a Material Adverse Effect;
(f) 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, 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 is required to be so qualified, except where failure to
be so qualified and in good standing individually or in the aggregate would not
have a Material Adverse Effect; and each Significant Subsidiary (as such term is
defined in Rule 405 under the Act) has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its jurisdiction of
incorporation and 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, except where failure to be duly incorporated,
validly existing and in good standing would not, individually or in the
aggregate, have a Material Adverse Effect;
(g) 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; all of the issued shares of capital stock of each Significant
Subsidiary have been duly and validly authorized and issued,
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are fully paid and non-assessable and (except as otherwise disclosed in the
Prospectus as amended or supplemented) are owned directly or indirectly by the
Company, free and clear of all material liens, encumbrances, equities or claims;
and all of the issued shares of capital stock of each subsidiary of the Company
have been duly and validly authorized and issued, are fully paid and
non-assessable and are owned directly or indirectly by the Company, free and
clear of all liens, encumbrances, equities or claims (except as otherwise
disclosed in the Prospectus as amended or supplemented or where, individually or
in the aggregate, the failure to have been duly and validly authorized and
issued, to be fully paid and non-assessable and to be owned directly or
indirectly by the Company free and clear of liens, encumbrances, equities or
claims would not have a Material Adverse Effect);
(h) The Notes have been duly authorized and, when issued and
delivered pursuant to this Agreement, will have been duly executed,
authenticated, issued and delivered and will constitute valid and legally
binding obligations of the Company entitled to the benefits provided by the
Indenture, dated as of September 10, 1997 (the "Indenture"), as supplemented by
the Fifth Supplemental Indenture, to be dated as of March 27, 2001 (the "Fifth
Supplemental Indenture"), between the Company and Citibank N.A., as Trustee (the
"Trustee"), under which the Notes are to be issued; the Indenture has been duly
authorized, executed and delivered and duly qualified under the Trust Indenture
Act; the Indenture constitutes (and the Fifth Supplemental Indenture, when
executed and delivered by the Company and the Trustee, will constitute) a valid
and legally binding instrument, enforceable in accordance with its terms, except
as the enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, and other laws of general applicability relating to or affecting
creditors' rights and to general principles of equity, regardless of whether
such enforceability is considered in a proceeding in equity or at law; and the
Notes and the Indenture will conform in all material respects to the
descriptions thereof in the Prospectus as amended or supplemented;
(i) The issue and sale of the Notes and the compliance by the
Company with all of the provisions of the Notes, the Indenture, as supplemented
by the Fifth Supplemental Indenture, and this Agreement and the consummation of
the transactions herein and therein contemplated will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
sale/leaseback agreement, loan agreement or other similar financing agreement or
instrument or other agreement or instrument 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, except for such conflicts, breaches, violations and
defaults as individually or in the aggregate would not have a Material Adverse
Effect, nor will such action result in any material violation of the provisions
of the Certificate of Incorporation or By-laws of the Company or any material
statute, order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Company or any of its Significant Subsidiaries or
any of their properties, nor will such action result in any violation of the
provisions of any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any of its
subsidiaries or any of their properties except for such violations as
individually or in the aggregate would not have a Material Adverse Effect; and
no consent, approval, authorization, order, registration or qualification of or
with any such court or governmental agency or body is required for the issue and
sale of the Notes or the consummation by the Company of the transactions
contemplated by this Agreement or the
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Indenture, as supplemented by the Fifth Supplemental Indenture, except the
registration of the Notes under the Act, the Exchange Act and such as have been
obtained under 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 Notes by the Underwriters;
(j) Except for such of the following violations, defaults and
failures as individually or in the aggregate would not have a Material Adverse
Effect, neither the Company nor any of its subsidiaries (i) is in violation of
its certificate of incorporation or by-laws (or comparable governing documents),
(ii) is in default, and no event has occurred which, with notice or lapse of
time or both, would constitute such a default, in the due performance or
observance of any obligation, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement, lease or other agreement or instrument
to which it is a party or by which it or any of its properties may be bound, or
(iii) is in violation of any law, ordinance, governmental rule, regulation or
court decree to which it or its property is subject, or (iv) has failed to
obtain any license, permit, certificate, franchise or other governmental
authorization or permit necessary to the ownership of its property or to the
conduct of its business;
(k) The statements set forth in the Prospectus as amended or
supplemented under the captions "Description of Debt Securities" and
"Description of Notes", insofar as they purport to constitute a summary of the
terms of the Notes, and under the captions "Plan of Distribution" and
"Underwriting", insofar as they purport to describe the provisions of the laws
and the documents referred to therein, constitute accurate summaries of the
terms of such documents in all material respects;
(l) Other than as set forth in the Prospectus as amended or
supplemented, 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 which, if determined
adversely to the Company or any of its subsidiaries, would individually or in
the aggregate have a Material Adverse Effect; and, to the best of the Company's
knowledge, no such proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(m) The Company is not and, after giving effect to the
offering and sale of the Notes, will not be an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment Company Act"); and
(n) KPMG LLP, who have certified certain financial statements
of the Company and its subsidiaries, are independent public accountants as
required by the Act and the rules and regulations of the Commission thereunder.
2. Subject to the terms and conditions herein set forth, the Company
agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company, at
a purchase price of 98.521% of the principal amount thereof, plus accrued
interest, if any, from March 27, 2001 to the Time of Delivery hereunder,
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the principal amount of Notes set forth opposite the name of such Underwriter in
Schedule I hereto.
3. Upon the authorization by the Underwriters of the release of the
Notes, the several Underwriters propose to offer the Notes for sale upon the
terms and conditions set forth in the Prospectus as amended or supplemented.
4. (a) The Notes to be purchased by each Underwriter hereunder will be
represented by one or more definitive global securities in book-entry form which
will be deposited by or on behalf of the Company with The Depository Trust
Company ("DTC") or its designated custodian. The Company will deliver the Notes
to Credit Suisse First Boston Corporation, for the account of each Underwriter,
against payment by or on behalf of such Underwriter of the purchase price
therefor in federal (same-day) funds by wire transfer to an account designated
by the Company for such purpose, by causing DTC to credit the Notes to the
account of Credit Suisse First Boston Corporation at DTC. The Company will cause
the certificates representing the Notes to be made available to Credit Suisse
First Boston Corporation for checking at least twenty-four hours prior to the
Time of Delivery (as defined below) at the office of DTC or its designated
custodian (the "Designated Office"). The time and date of such delivery and
payment shall be 9:30 a.m., New York City time, on March 27, 2001 or such other
time and date as Credit Suisse First Boston Corporation and the Company may
agree upon in writing. Such time and date are herein called the "Time of
Delivery".
(b) The documents to be delivered at the Time of Delivery by
or on behalf of the parties hereto pursuant to Section 7 hereof, including the
cross-receipt for the Notes and any additional documents requested by the
Underwriters pursuant to Section 7(i) hereof, will be delivered at the offices
of ▇▇▇▇▇▇▇, Phleger & ▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇ (the "Closing Location"), and the Notes will be delivered at the
Designated Office, all at the Time of Delivery. A meeting will be held at the
Closing Location at 2:00 p.m., New York City time, on the New York Business Day
next preceding the Time of Delivery, at which meeting the final drafts of the
documents to be delivered pursuant to the preceding sentence will be available
for review by the parties hereto. For purposes of this Section 4, "New York
Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in New York are generally
authorized or obligated by law or executive order to close.
5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus as amended or supplemented in a
form approved by the Underwriters and to file such Prospectus pursuant to Rule
424(b) under the Act not later than the Commission's close of business on the
second business day following the execution and delivery of this Agreement or,
if applicable, such earlier time as may be required by Rule 424(b); to make no
further amendment or any supplement to the Registration Statement or Prospectus
after the date of this Agreement and prior to the Time of Delivery which shall
be disapproved by the Underwriters promptly after reasonable notice thereof; to
advise the Underwriters promptly of such amendment or supplement after such Time
of Delivery and furnish the Underwriters with copies thereof; to file promptly
all reports and any definitive proxy or information statements required to be
filed by the Company with the Commission pursuant to
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Section 13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as the
delivery of a prospectus is required in connection with the offering or sale of
the Notes, and during such same period to advise the Underwriters promptly after
it receives notice thereof, of the time when any amendment to the Registration
Statement has been filed or becomes effective or any supplement to the
Prospectus or any amended Prospectus has been filed with the Commission, 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 Notes, of the suspension of
the qualification of the Notes 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 Notes or suspending any such
qualification, to promptly use its best efforts to obtain the withdrawal of such
order;
(b) Promptly from time to time to take such action as the
Underwriters may reasonably request to qualify the Notes for offering and sale
under the securities laws of such jurisdictions in the United States as the
Underwriters 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 the Notes, provided that in
connection therewith the Company shall not be required to qualify as a foreign
corporation, to file a general consent to service of process in any jurisdiction
or to take any action that would subject it to general taxation in any
jurisdiction;
(c) Prior to 3:00 p.m., New York City time, on the business
day next succeeding the date of this Agreement and from time to time thereafter,
to furnish the Underwriters with copies of the Prospectus as amended or
supplemented in such quantities in New York City as the Underwriters may
reasonably request, and, if the delivery of a prospectus is required at any time
prior to the expiration of nine months after the time of issue of the Prospectus
in connection with the offering or sale of the Notes 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
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 such Prospectus or to file under
the Exchange Act any document incorporated by reference in such Prospectus in
order to comply with the Act, the Exchange Act or the Trust Indenture Act, to
notify the Underwriters and, upon your request and subject to your approval, 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 Underwriters 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; and in case any Underwriter is required to deliver a prospectus in
connection with sales of any of the Notes at any time nine months or more after
the time of issue of the Prospectus, upon request of such Underwriter but at the
expense of such Underwriter, to prepare and deliver to such Underwriter as many
copies as such Underwriter may request of an amended or supplemented Prospectus
complying with Section 10(a)(3) of the Act;
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(d) To make generally available to its securityholders as soon
as practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c) under
the Act), an earnings statement of the Company and its subsidiaries (which need
not be audited) complying with Section 9(a) of the Act and the rules and
regulations of the Commission thereunder (including, at the option of the
Company, Rule 158, in which case this Section 5(d) shall not be construed to
require the Company to file any report referred to in Rule 158 prior to the time
at which such report is otherwise due);
(e) During the period beginning from the date hereof and
continuing to and including the later of the Time of Delivery and such earlier
time as the Underwriters may notify the Company, not to offer, sell, contract to
sell or otherwise dispose of, except as provided hereunder, any securities of
the Company that are substantially similar to the Notes;
(f) For so long as Notes are in global form, to furnish to the
holders thereof as soon as practicable after the end of each fiscal year an
annual report (including a balance sheet and statements of income, shareholders'
equity and cash flows of the Company and its consolidated subsidiaries certified
by independent public accountants) and, as soon as practicable after the end of
each of the first three quarters of each fiscal year (beginning with the fiscal
quarter ending after the effective date of the Registration Statement),
consolidated summary financial information of the Company and its subsidiaries
for such quarter in reasonable detail; and to furnish to the holders of the
Notes all other documents specified in Section 7.04 of the Indenture, all in the
manner so specified;
(g) During a period of three years from the effective date of
the Registration Statement, to furnish to the Underwriters copies of all reports
or other communications (financial or other) furnished to the Company's
stockholders generally, and to deliver to the Underwriters (i) as soon as they
are available, (A) copies of any reports and financial statements furnished to
or filed with the Commission or any national securities exchange on which the
Notes or any class of securities of the Company is listed and (B) the documents
specified in Section 7.04 of the Indenture, as in effect at the Time of
Delivery, and (ii) such additional information concerning the business and
financial condition of the Company as the Underwriters may from time to time
reasonably request, provided that any material nonpublic information received by
the Underwriters will be held in confidence and not used in violation of any
applicable law (such financial statements to be on a consolidated basis to the
extent the accounts of the Company and its subsidiaries are consolidated in
reports furnished to its stockholders generally or to the Commission); and
(h) To use the net proceeds received by it from the sale of
the Notes pursuant to this Agreement in the manner specified in the Prospectus
as amended or supplemented under the caption "Use of Proceeds."
6. 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 Notes 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
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dealers; (ii) the cost of producing any Agreement among Underwriters, this
Agreement, the Indenture, the Blue Sky Memorandum, closing documents (including
any compilations thereof) and any other documents in connection with the
offering, purchase, sale and delivery of the Notes; (iii) all expenses in
connection with the qualification of the Notes for offering and sale under state
securities laws as provided in Section 5(b) hereof, including the fees and
disbursements of counsel for the Underwriters (not to exceed $5,000 in the
aggregate) in connection with such qualification and in connection with the Blue
Sky Memorandum; (iv) any fees charged by securities rating services for rating
the Notes; (v) the filing fees incident to, and fees and the disbursements of
counsel for the Underwriters in connection with, any required review by the
National Association of Securities Dealers, Inc. of the terms of the sale of the
Notes; (vi) the cost of preparing the Notes; (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 the Indenture and the Notes; 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, and Sections 7
and 9 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
Notes by them, and any advertising expenses connected with any offers they may
make.
7. The obligations of the Underwriters to purchase the Notes hereunder
shall be subject in the sole discretion of the Underwriters to the condition
that all representations and warranties and other statements of the Company
herein are, at and as of the Time of Delivery, 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 as amended or supplemented 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 5(a) hereof and the Indenture shall have been
qualified under the Trust Indenture Act; no stop order suspending the
effectiveness of the Registration Statement or any part thereof 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 reasonable
satisfaction of the Underwriters;
(b) ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the
Underwriters, shall have furnished to the Underwriters a written opinion, dated
the Time of Delivery, in substantially the form attached hereto as Annex I;
(c) The General Counsel or Deputy General Counsel of the
Company shall have furnished to the Underwriters his written opinion, dated the
Time of Delivery, in substantially the form attached hereto as Annex II;
(d) ▇▇▇▇▇, Day, ▇▇▇▇▇▇ & ▇▇▇▇▇, counsel for the Company, shall
have furnished to the Underwriters a written opinion, dated the Time of
Delivery, in substantially the form attached hereto as Annex III;
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(e) KPMG LLP shall have furnished to the Underwriters a
letter, dated the Time of Delivery, in form and substance satisfactory to the
Underwriters (the form of the letter to be delivered at the Time of Delivery is
attached hereto as Annex IV);
(f) (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 first 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 first amended or supplemented, and
(ii) since the respective dates as of which information is given in the
Prospectus as first 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 prospective change, in or
affecting the general affairs, management, financial position, shareholders'
equity or results of operations of the Company and its subsidiaries, otherwise
than as set forth or contemplated in the Prospectus as first amended or
supplemented, the effect of which, in any such case described in clause (i) or
(ii), is in the judgment of the Underwriters so material and adverse as to make
it impracticable or inadvisable to proceed with the public offering or the
delivery of the Notes on the terms and in the manner contemplated in the
Prospectus as first amended or supplemented;
(g) On or after the date hereof, (i) no downgrading shall have
occurred 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, and (ii) no such
organization shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of any of the Company's
debt securities;
(h) On or after the date hereof, there shall not have occurred
any of the following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange; (ii) a suspension or
material limitation in trading in the Company's securities on the New York Stock
Exchange; (iii) a general moratorium on commercial banking activities declared
by either Federal or New York State authorities; or (iv) the outbreak or
escalation of hostilities involving the United States or the declaration by the
United States of a national emergency or war, if the effect of any such event
specified in this clause (iv) in the judgment of the Underwriters makes it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Notes on the terms and in the manner contemplated in the Prospectus as
first amended or supplemented; or (v) the occurrence of any material adverse
change in the existing financial, political or economic conditions in the United
States or elsewhere which, in the judgment of the Underwriters, would materially
and adversely affect the financial markets or the market for the Notes and other
debt securities; and
(i) The Company shall have furnished or caused to be furnished
to the Underwriters at the Time of Delivery certificates of officers of the
Company satisfactory to the Underwriters as to the accuracy of the
representations and warranties of the Company herein at and as of such Time of
Delivery, as to the performance by the Company of all of its obligations
hereunder to be performed at or prior to such Time of Delivery, as to the
matters set forth in
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subsections (a) and (f) of this Section and as to such other matters as the
Underwriters may reasonably request.
8. (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 Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement or the Prospectus, 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 as such expenses are incurred; 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 Preliminary
Prospectus, any preliminary prospectus supplement, the Registration Statement or
the Prospectus as amended or supplemented, or any such amendment or supplement
thereto in reliance upon and in conformity with written information furnished to
the Company by any Underwriter through Credit Suisse First Boston Corporation
expressly for use therein.
(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 Preliminary Prospectus, any preliminary prospectus supplement,
the Registration Statement or the Prospectus as amended or supplemented, 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 Preliminary
Prospectus, any preliminary prospectus supplement, the Registration Statement or
the Prospectus as amended or supplemented, or any such amendment or supplement
thereto in reliance upon and in conformity with written information furnished to
the Company by such Underwriter through Credit Suisse First Boston Corporation
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 as such expenses are incurred.
(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
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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. No indemnifying party shall, without the written consent
of the indemnified party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or
claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or potential party
to such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all liability
arising out of such action or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act, by or on behalf of
any indemnified party.
(d) If the indemnification provided for in this Section 8 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
on the other from the offering of the Notes. 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 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 the Underwriters on the other shall be deemed to be
in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriters, in each case as set
forth in the table on the cover page of the Prospectus. 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 the 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 Notes
12
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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
Underwriters' obligations in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations and not joint.
(e) The obligations of the Company under this Section 8 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 8 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 (including any
person who, with his or her consent, is named in the Registration Statement as
about to become a director of the Company) and to each person, if any, who
controls the Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase
the Notes which it has agreed to purchase hereunder, the Underwriters may in
their discretion arrange for the Underwriters or another party or other parties
to purchase such Notes on the terms contained herein. If within thirty-six hours
after such default by any Underwriter the Underwriters do not arrange for the
purchase of such Notes, 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 Underwriters to purchase such Notes on such terms. In the
event that, within the respective prescribed periods, the Underwriters notify
the Company that they have so arranged for the purchase of such Notes or the
Company notifies the Underwriters that it has so arranged for the purchase of
such Notes, as the case may be, the Underwriters or the Company shall have the
right to postpone the Time of Delivery 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 Underwriters 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 this Agreement with respect to such Notes.
(b) If, after giving effect to any arrangements for the
purchase of the Notes of a defaulting Underwriter or Underwriters by the
Underwriters and the Company as provided in subsection (a) above, the aggregate
principal amount of such Notes which remains unpurchased does not exceed
one-eleventh of the aggregate principal amount of all the Notes, then the
Company shall have the right to require each non-defaulting Underwriter to
purchase the principal amount of Notes which such Underwriter agreed to purchase
hereunder and, in addition, to require each non-defaulting Underwriter to
purchase its pro rata share (based on the principal amount of Notes which such
Underwriter agreed to purchase hereunder) of the Notes 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.
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(c) If, after giving effect to any arrangements for the
purchase of the Notes of a defaulting Underwriter or Underwriters by the
Underwriters and the Company as provided in subsection (a) above, the aggregate
principal amount of Notes which remains unpurchased exceeds one-eleventh of the
aggregate principal amount of all the Notes, or if the Company shall not
exercise the right described in subsection (b) above to require non-defaulting
Underwriters to purchase the Notes of a defaulting Underwriter or Underwriters,
then this Agreement 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 6 hereof and
the indemnity and contribution agreements in Section 8 hereof; but nothing
herein shall relieve a defaulting Underwriter from liability for its default.
10. 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 controlling person of the Company, and shall
survive delivery of and payment for the Notes.
11. If this Agreement shall be terminated pursuant to Section 9 hereof,
the Company shall not then be under any liability to any Underwriter except as
provided in Sections 6 and 8 hereof; but, if for any other reason, the Notes are
not delivered by or on behalf of the Company as provided herein, the Company
will reimburse the Underwriters for all out-of-pocket expenses, including fees
and disbursements of counsel, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of the Notes, but the Company
shall then be under no further liability to any Underwriter except as provided
in Sections 6 and 8 hereof.
12. All statements, requests, notices and agreements hereunder shall be
in writing, and if to the Underwriters shall be delivered or sent by mail, telex
or facsimile transmission to the Underwriters in care of Credit Suisse First
Boston Corporation, ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
Investment Banking Department - Transactions Advisory Group; and if to the
Company shall be delivered or sent by mail, telex or facsimile transmission to
the address of the Company set forth in the Registration Statement, Attention:
Chief Financial Officer and Attention: Secretary; provided, however, that any
notice to an Underwriter pursuant to Section 8(c) hereof shall be delivered or
sent by mail, telex or facsimile transmission to such Underwriter at its address
set forth in its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Company by the Underwriters
upon request. Any such statements, requests, notices or agreements shall take
effect upon receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Company and, to the extent provided in
Sections 8 and 10 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. No purchaser of
any of the Notes from any Underwriter shall be deemed a successor or assign by
reason merely of such purchase.
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14. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
16. This Agreement may be executed by any one or more of the parties
hereto 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.
[signature pages follow]
15
16
If the foregoing is in accordance with your understanding,
please sign and return to us seven counterparts hereof, and upon the acceptance
hereof by the Underwriters, this letter and such acceptance hereof shall
constitute a binding agreement among each of the Underwriters and the Company.
Very truly yours,
FEDERATED DEPARTMENT STORES, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------
Title: Senior Vice President and Chief
---------------------------------
Financial Officer
---------------------------------
17
Accepted as of the date hereof:
CREDIT SUISSE FIRST BOSTON CORPORATION
BANC OF AMERICA SECURITIES LLC
CHASE SECURITIES INC.
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
BANC ONE CAPITAL MARKETS, INC.
PNC CAPITAL MARKETS, INC.
By: CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------
On behalf of each of the Underwriters
18
SCHEDULE I
Principal Amount of Notes
to be Purchased
Credit Suisse First Boston Corporation....................................... $260,000,000
Banc of America Securities LLC............................................... 70,000,000
Chase Securities, Inc........................................................ 70,000,000
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc..................................................... 70,000,000
Banc One Capital Markets, Inc................................................ 15,000,000
PNC Capital Markets, Inc..................................................... 15,000,000
------------
Total............................................................... $500,000,000
============
19
ANNEX I
[Form of Opinion of ▇▇▇▇▇▇▇, Phleger & ▇▇▇▇▇▇▇▇ LLP]
20
ANNEX II
[Form of Opinion of General Counsel of the Company]
21
ANNEX III
[Form of Opinion of ▇▇▇▇▇, Day, ▇▇▇▇▇▇ & ▇▇▇▇▇]
22
ANNEX IV
[Form of comfort letter]