FEDERATED RETAIL HOLDINGS, INC.,
COMPANY
FEDERATED DEPARTMENT STORES, INC.,
GUARANTOR
5.350% SENIOR NOTES DUE 2012
6.375% SENIOR NOTES DUE 2037
Underwriting Agreement
March 7, 2007
Credit Suisse Securities (USA) LLC
as Representative of the several Underwriters
c/o Credit Suisse Securities (USA) LLC
Eleven Madison Avenue
New York, NY 10010-3629
Ladies and Gentlemen:
Federated Retail Holdings, Inc., a New York
corporation (the " Company "), proposes, subject to the
terms and conditions stated herein, to issue and sell to you (the "
Underwriters ") an aggregate of $1,100,000,000 principal
amount of 5.350% Senior Notes Due 2012 (the " 2012
Notes ") and an aggregate of $500,000,000 principal amount
of 6.375% Senior Notes Due 2037 (the " 2037 Notes " and
together with the 2012 Notes, the " Notes ") each with the
guarantee (collectively, the " Guarantees ") endorsed
thereon of Federated Department Stores, Inc., a Delaware
corporation (the " Guarantor ").
1. Each of the
Company and the Guarantor represents and warrants to, and agrees
with, each of the Underwriters that:
(a) A registration statement (No.
333- 138376), including a prospectus, relating to certain of the
Company's unsecured debt securities registered under said
registration statement (the " Registered Securities "), as
amended, has been filed with the Securities and Exchange Commission
(" Commission ") and has become effective. "
Registration Statement " as of any time means such
registration statement in the form then filed with the Commission,
including any amendment thereto, any document incorporated by
reference therein and any information in a prospectus or prospectus
supplement deemed or retroactively deemed to be a part thereof
pursuant to Rule 430B (" Rule 430B ") or 430C (" Rule
430C ") under the Securities Act of 1933 (" Act ") that
has not been superseded or modified. " Registration
Statement " without reference to a time means the Registration
Statement, including all amendments thereto, as of the time of the
first contract of sale for the Notes, which time shall be
considered the " Effective Date " of the Registration
Statement relating to the Notes. For purposes of this
definition, information contained in a form of prospectus or
prospectus supplement that is deemed retroactively to be a part of
the Registration Statement pursuant to Rule 430B shall be
considered to be included in the Registration Statement as of the
time specified in Rule 430B.
" Statutory Prospectus " as of any time means the prospectus
relating to the Notes that is included in the Registration
Statement immediately prior to that time, including any document
incorporated by reference therein and any basic prospectus or
prospectus supplement deemed to be a part thereof pursuant to Rule
430B or 430C that has not been superseded or modified. For
purposes of this definition, information contained in a form of
prospectus (including a prospectus supplement) that is deemed
retroactively to be a part of the Registration Statement pursuant
to Rule 430B shall be considered to be included in the Statutory
Prospectus only as of the actual time that form of prospectus
(including a prospectus supplement) is filed with the Commission
pursuant to Rule 424(b) (" Rule 424(b) ") under the Act and
not retroactively. " Prospectus " means the Statutory
Prospectus that discloses the public offering price and other final
terms of the Notes and otherwise satisfies Section 10(a) of the
Act.
" Issuer Free Writing Prospectus " means any "issuer free
writing prospectus," as defined in Rule 433 (" Rule 433 ")
under the Act, relating to the Notes in the form filed or required
to be filed with the Commission or, if not required to be filed, in
the form retained in the Company's records pursuant to Rule
433(g). " General Use Issuer Free Writing Prospectus "
means any Issuer Free Writing Prospectus that is intended for
general distribution to prospective investors, as evidenced by its
being listed in Schedule B to this Agreement. " Limited
Use Issuer Free Writing Prospectus " means any Issuer Free
Writing Prospectus that is not a General Use Issuer Free Writing
Prospectus. " Applicable Time " means 4:40 p.m.
(Eastern time) on the date of this Agreement.
" Securities Laws " means, collectively, the Sarbanes-Oxley
Act of 2002 (" Sarbanes-Oxley "), the Act, the Securities
Exchange Act of 1934 (the " Exchange Act "), the Trust
Indenture Act of 1939 (the " Trust Indenture Act "), the
rules and regulations of the Commission (the " Rules and
Regulations "), the auditing principles, rules, standards and
practices applicable to auditors of "issuers" (as defined in
Sarbanes-Oxley) promulgated or approved by the Public Company
Accounting Oversight Board and, as applicable, the rules of the New
York Stock Exchange (the " Exchange Rules ").
(b) At the time the Registration
Statement initially became effective, at the time of each amendment
thereto for the purposes of complying with Section 10(a)(3) of the
Act (whether by post effective amendment, incorporated report or
form of prospectus) and on the Effective Date relating to the
Notes, the Registration Statement conformed and will conform in all
material respects to the requirements of the Act, the Exchange Act,
the Trust Indenture Act and the Rules and Regulations and did not
and will not include any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary in order to make the statements therein not
misleading. The Registration Statement on the date of this
Agreement and the Prospectus on the date of this Agreement and at
the Time of Delivery 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 in order to make the
statements therein not misleading. This Section 1(b) does not
apply to statements in or omissions from any of such documents
based upon written information furnished to the Company by any
Underwriter through Credit Suisse Securities (USA) LLC, as
Representative of the several Underwriters (the "
Representative "), if any, specifically for use therein, it
being understood and agreed that the only such information
furnished by any Underwriter consists of the information described
as such in Section 9(b) hereof or (ii) that part of the
Registration Statement that will constitute the Statement of
Eligibility and Qualification under the Trust Indenture Act (Form
T-1) of the Trustee under the Indenture (the " Form T-1
").
(c) (i)(A)
At the time of the initial filing of the Registration Statement,
(B) at the time of the most recent amendment thereto for the
purposes of complying with Section 10(a)(3) of the Act (whether
such amendment was by post-effective amendment, incorporated report
filed pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934 or form of prospectus), and (C) at the time the
Company, the Guarantor or any person acting on their behalf (within
the meaning, for this clause only, of Rule 163(c) under the Act)
made any offer relating to the Notes in reliance on the exemption
of Rule 163 under the Act and (D) at the time this Agreement is
executed, the Company was a "well known seasoned issuer" as defined
in Rule 405 (" Rule 405 ") under the Act, including
not having been an "ineligible issuer" as defined in Rule 405.
(ii)
The Registration Statement is an "automatic shelf registration
statement," as defined in Rule 405, that initially became effective
within three years of the date of this Agreement. If
immediately prior to the third anniversary (the " Renewal
Deadline ") of the initial effective date of the Registration
Statement, any of the Notes remain unsold by the Underwriters, the
Company will prior to the Renewal Deadline file, if it has not
already done so and is eligible to do so, a new automatic shelf
registration statement relating to the Notes, in a form
satisfactory to the Representative. If the Company is no
longer eligible to file an automatic shelf registration statement,
the Company will prior to the Renewal Deadline, if it has not
already done so, file a new shelf registration statement relating
to the Notes, in a form satisfactory to the Representative, and
will use its reasonable best efforts to cause such registration
statement to be declared effective within 180 days after the
Renewal Deadline. The Company and the Guarantor will take all
other action reasonably necessary or appropriate to permit the
public offering and sale of the Notes to continue as contemplated
in the expired registration statement relating to the Notes.
References herein to the Registration Statement shall include such
new automatic shelf registration statement or such new shelf
registration statement, as the case may be.
(iii) Neither
the Company nor Guarantor has received from the Commission any
notice pursuant to Rule 401(g)(2) (" Rule 401(g)(2) ") under
the Act objecting to use of the automatic shelf registration
statement form. If at any time when Notes remain unsold by
the Underwriters the Company receives from the Commission a notice
pursuant to Rule 401(g)(2) or otherwise ceases to be eligible to
use the automatic shelf registration statement form, the Company
will (i) promptly notify the Representative, (ii) promptly file a
new registration statement or post-effective amendment on the
proper form relating to the Notes, in a form satisfactory to the
Representative, (iii) use its reasonable best efforts to cause such
registration statement or post-effective amendment to be declared
effective as soon as practicable, and (iv) promptly notify the
Representative of such effectiveness. The Company and the
Guarantor will take all other action reasonably necessary or
appropriate to permit the public offering and sale of the Notes to
continue as contemplated in the registration statement that was the
subject of the Rule 401(g)(2) notice or for which the Company has
otherwise become ineligible. References herein to the
Registration Statement shall include such new registration
statement or post-effective amendment, as the case may be.
(iv) The
Company and the Guarantor have paid or shall pay the required
Commission filing fees relating to the Notes within the time
required by Rule 456(b)(1) under the Act without regard to the
proviso therein and otherwise in accordance with Rules 456(b) and
457(r) under the Act.
(d) (i) At the time of initial
filing of the Registration Statement and (ii) at the date of this
Agreement, neither the Company nor the Guarantor was or is an
"ineligible issuer," as defined in Rule 405, including (x) the
Company, the Guarantor or any other subsidiary in the preceding
three years not having been convicted of a felony or misdemeanor or
having been made the subject of a judicial or administrative decree
or order as described in Rule 405 and (y) the Company and the
Guarantor in the preceding three years not having been the subject
of a bankruptcy petition or insolvency or similar proceeding, not
having had a registration statement be the subject of a proceeding
under Section 8 of the Act and not being the subject of a
proceeding under Section 8A of the Act in connection with the
offering of the Notes, all as described in Rule 405. As of
the Applicable Time, neither (i) the General Use Issuer Free
Writing Prospectus(es) issued at or prior to the Applicable Time,
the preliminary prospectus, dated March 7, 2007 (which is the most
recent Statutory Prospectus distributed to investors generally) and
the other information, if any, stated in Schedule B to this
Agreement to be included in the General Disclosure Package, all
considered together (collectively, the " General Disclosure
Package "), nor (ii) any individual Limited Use Issuer Free
Writing Prospectus, when considered together with the General
Disclosure Package, included any untrue statement of a material
fact or omitted to state any material fact necessary in order to
make the statements therein, in the light of the circumstances
under which they were made, not misleading. The preceding
sentence does not apply to statements in or omissions from any
Statutory Prospectus or any Issuer Free Writing Prospectus in
reliance upon and in conformity with written information furnished
to the Company by any Underwriter through the Representative
specifically for use therein, it being understood and agreed that
the only such information furnished by any Underwriter consists of
the information described as such in Section 9(b) hereof.
(e) Each Issuer Free Writing
Prospectus, as of its issue date and at all subsequent times
through the completion of the public offer and sale of the Notes or
until any earlier date that the Company notified or notifies the
Representative as described in the next sentence, did not, does not
and will not include any information that conflicted, conflicts or
will conflict with the information then contained in the
Registration Statement or preliminary prospectus supplement.
If at any time following issuance of an Issuer Free Writing
Prospectus there occurred or occurs an event or development as a
result of which such Issuer Free Writing Prospectus conflicted or
would conflict with the information then contained in the
Registration Statement or preliminary prospectus supplement or as a
result of which such Issuer Free Writing Prospectus, if republished
immediately following such event or development, would include an
untrue statement of a material fact or omitted or would omit to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading, (i) the Company has promptly notified or will
promptly notify the Representative and (ii) the Company has
promptly amended or will promptly amend or supplement at its own
expense such Issuer Free Writing Prospectus to eliminate or correct
such conflict, untrue statement or omission. The foregoing
two sentences do not apply to statements in or omissions from any
Issuer Free Writing Prospectus in reliance upon and in conformity
with written information furnished to the Company by any
Underwriter through the Representative specifically for use
therein, it being understood and agreed that the only such
information furnished by any Underwriter consists of the
information described as such in Section 9(b) hereof.
(f) Since the end of the period
covered by the latest audited financial statements included or
incorporated by reference in the General Disclosure Package, except
as disclosed in the General Disclosure Package, there has not been
any material adverse change or any development involving a
prospective material adverse change in the business, general
affairs, management, financial position, shareholders' equity or
results of operations of the Company, the Guarantor and their
subsidiaries taken as a whole. Since the end of the period
covered by the latest audited financial statements included or
incorporated by reference in the General Disclosure Package, except
as disclosed in the General Disclosure Package, neither the
Company, the Guarantor nor any of their subsidiaries has sustained
any material loss or interference with their 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;
(g) The Company, the Guarantor and
their 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 Registration Statement, Prospectus or
the General Disclosure Package, 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, the Guarantor and their
subsidiaries taken as a whole (a " Material Adverse Effect
"); and any real property and buildings held under lease by the
Company, the Guarantor and their 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;
(h) Each of the Company and the
Guarantor has been duly incorporated and is validly existing as a
corporation in good standing under the laws of its jurisdiction of
incorporation, with power and authority (corporate and other) to
own its properties and conduct its business as described in the
Registration Statement, Prospectus or the General Disclosure
Package, 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 subsidiary of the Company and the
Guarantor has been duly incorporated and is validly existing as a
corporation in good standing under the laws of its jurisdiction of
incorporation, with power and authority (corporate and other) to
own its properties and conduct its business as described in the
Registration Statement, Prospectus and the General Disclosure
Package, 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;
(i) All of the issued shares of
capital stock of the Guarantor have been duly and validly
authorized and issued and are fully paid and non-assessable; all of
the issued shares of capital stock of the Company and of each
Significant Subsidiary (as such term is defined in Rule 405 of
under the Act) of the Company and Guarantor have been duly and
validly authorized and issued, are fully paid and non-assessable
and (except as otherwise disclosed in the Registration Statement,
Prospectus or the General Disclosure Package) are owned directly or
indirectly by the Guarantor, 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 Guarantor have been duly
and validly authorized and issued, are fully paid and
non-assessable and are owned directly or indirectly by the
Guarantor, free and clear of all liens, encumbrances, equities or
claims (except as otherwise disclosed in the Registration
Statement, Prospectus or the General Disclosure Package 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 Guarantor free and
clear of liens, encumbrances, equities or claims would not have a
Material Adverse Effect);
(j) The Notes and the related
Guarantees 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 and the Guarantor
entitled to the benefits provided by the Indenture, dated as of
November 2, 2006 (the " Indenture "), as supplemented by the
Second Supplemental Indenture, to be dated as of March 12, 2007
(the " Second Supplemental Indenture "), and the Third
Supplemental Indenture, to be dated as of March 12, 2007 (the "
Third Supplemental Indenture ", and together with the Second
Supplemental Indenture, the " Supplemental Indentures "),
among the Company, the Guarantor and U.S. Bank National
Association, as Trustee (the " Trustee "), under which the
Notes and the related Guarantees are to be issued and enforceable
in accordance with their 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; the Indenture has been duly authorized, executed
and delivered and duly qualified under the Trust Indenture Act; the
Indenture constitutes (and the Supplemental Indentures, 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 each of the Notes, the related Guarantees and the
Indenture will conform in all material respects to the descriptions
thereof in the Registration Statement, Prospectus or the General
Disclosure Package;
(k) The issue and sale of the
Notes, the related Guarantees, and the compliance by the Company
and the Guarantor with all of the provisions of the Notes, the
related Guarantees, the Indenture, as supplemented by the
Supplemental Indentures, 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, the Guarantor or any
of their subsidiaries is a party or by which the Company, the
Guarantor or any of their subsidiaries is bound or to which any of
the property or assets of the Company, the Guarantor or any of
their 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 the Guarantor or any
material statute, order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company,
the Guarantor or any of their 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, the Guarantor or any of their 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 and the
related Guarantees or the consummation by the Company or the
Guarantor of the transactions contemplated by this Agreement or the
Indenture, as supplemented by the Supplemental Indentures, except
the registration of the Notes and the related Guarantees 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;
(l) 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, the Guarantor nor any of their 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;
(m) The statements set forth in the
Registration Statement, Prospectus or the General Disclosure
Package under the captions "Description of Debt Securities,"
"Description of Notes" and "Certain U.S. Federal Income Tax
Considerations", insofar as they purport to constitute a summary of
the terms of the Notes and the related Guarantees, 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;
(n) Other than as set forth in the
Registration Statement, Prospectus or the General Disclosure
Package, there are no legal or governmental proceedings pending to
which the Company, the Guarantor or any of their subsidiaries is a
party or of which any property of the Company, the Guarantor or any
of their subsidiaries is the subject which, if determined adversely
to the Company, the Guarantor or any of their subsidiaries, would
individually or in the aggregate have a Material Adverse Effect;
and, to the best knowledge of the Company and the Guarantor, no
such proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(o) Neither the Company nor the
Guarantor is and, after giving effect to the offering and sale of
the Notes and the application of the proceeds thereof as described
in the Registration Statement, Prospectus or the General Disclosure
Package, neither the Company nor the Guarantor will 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 ");
(p) Except as set forth in the
Registration Statement, Prospectus and the General Disclosure
Package, the Guarantor and its subsidiaries and the Guarantor's
Board of Directors (the " Board ") are in compliance in all
material respects with Sarbanes-Oxley and all applicable Exchange
Rules. The Guarantor maintains a system of internal controls,
including, but not limited to, disclosure controls and procedures,
internal controls over accounting matters and financial reporting,
an internal audit function and legal and regulatory compliance
controls (collectively, " Internal Controls ") that comply
with the Securities Laws and are sufficient to provide reasonable
assurances that (i) transactions are executed in accordance with
management's general or specific authorizations, (ii) transactions
are recorded as necessary to permit preparation of financial
statements in conformity with accounting principles generally
accepted in the United States and to maintain accountability for
assets, (iii) access to assets is permitted only in accordance with
management's general or specific authorization, (iv) the recorded
accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect
to any differences and (v) the Guarantor has adopted and applies
corporate governance guidelines. The Internal Controls are,
or upon consummation of the offering of the Notes will be, overseen
by the Audit Committee (the " Audit Committee ") of the
Board in accordance with Exchange Rules in all material respects.
The Guarantor has not publicly disclosed or reported to the Audit
Committee or the Board, and within the next 90 days the Guarantor
does not reasonably expect to publicly disclose or report to the
Audit Committee or the Board, a significant deficiency, material
weakness, change in Internal Controls or fraud involving management
or other employees who have a significant role in Internal Controls
(each, an " Internal Control Event "), any violation of, or
failure to comply with, the Securities Laws, or any matter which,
if determined adversely, would have a Material Adverse Effect;
(q) KPMG LLP, who have certified
certain financial statements of the Guarantor and its subsidiaries
including the Company, are independent public accountants as
required by the Act and the rules and regulations of the Commission
thereunder; and
(r) Deloitte & Touche LLP, who
have certified certain financial statements of The May Department
Stores Company, a Delaware corporation, 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,
(a) at a purchase price of 99.334% of the principal amount thereof,
plus accrued interest, if any, from March 12, 2007 to the Time of
Delivery hereunder, the principal amount of the 2012 Notes set
forth opposite the name of such Underwriter in Schedule A hereto
and (b) at a purchase price of 98.647% of the principal amount
thereof, plus accrued interest, if any, from March 12, 2007 to the
Time of Delivery hereunder, the principal amount of the 2037 Notes
set forth opposite the name of such Underwriter in Schedule A
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 Registration Statement,
Prospectus or the General Disclosure Package.
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 Securities (USA) LLC, 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 Securities
(USA) LLC at DTC. The Company will cause the certificates
representing the Notes to be made available to Credit Suisse
Securities (USA) LLC 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 approximately
10:00 a.m., New York City time, on March 12, 2007 or such other
time and date as Credit Suisse Securities (USA) LLC 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 8 hereof, including the cross-receipt for the
Notes and any additional documents requested by the Underwriters
pursuant to Section 8(j) hereof, will be delivered at the offices
of Shearman & Sterling LLP, 599 Lexington Avenue, New York, NY
10022 (the " Closing Location "), and the Notes will be
delivered at the Designated Office, all at
