Liz Claiborne, Inc.
(euro)350,000,000
6.625 per cent. Notes due 2006
AGENCY AGREEMENT
THIS AGREEMENT is dated 6th August, 2001 and made BETWEEN:
(1) LIZ CLAIBORNE, INC. (the "Issuer");
(2) CITIBANK, N.A. (the "Fiscal Agent"); and
(3) DEXIA BANQUE INTERNATIONALE A LUXEMBOURG
WHEREAS:
(A) The Issuer has agreed to issue (euro)350,000,000 6.625 per cent. Notes due
2006 (the "Notes" which expression shall include, unless the context
otherwise requires, any further Notes issued pursuant to Condition 13 and
forming a single series with the Notes).
(B) The Notes will be issued in bearer form ("Notes") in the denomination of
(euro)1,000, (euro)10,000, (euro)100,000 each with interest coupons
("Coupons") attached.
(C) The Notes will initially be represented by a temporary Global Note (the
"Temporary Global Note") in or substantially in the form set out in Part I
of Schedule 1 which will be exchanged in accordance with its terms for
interests in a permanent Global Note (the "Permanent Global Note" and,
together with the Temporary Global Note, the "Global Notes") in or
substantially in the form set out in Part II of Schedule 1. The Permanent
Global Note will in turn be exchangeable for Notes in definitive form
("Definitive Notes") in the limited circumstances specified in the
Permanent Global Note.
(D) The Global Notes will be delivered to a common depositary (the "Common
Depositary", which expression shall include its lawful successors and
assigns) for Euroclear Bank S.A./N.V., as operator of the Euroclear System
("Euroclear") and Clearstream Banking, societe anonyme ("Clearstream,
Luxembourg").
(E) The definitive Notes and Coupons will be in or substantially in the
respective forms set out in Part I of Schedule 2. The Conditions of the
Notes (the "Conditions") will be in or substantially in the form set out in
Part II of Schedule 2.
NOW IT IS HEREBY AGREED as follows:
1. INTERPRETATION
(1) Words and expressions defined in the Conditions and not otherwise defined
in this Agreement shall have the same meanings when used in this Agreement.
(2) References in this Agreement to principal and/or interest shall include any
additional amounts payable pursuant to Condition 7.
2. DEFINITIONS
As used in this Agreement and in the Conditions:
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"Auditors" means the auditors for the time being of the Issuer or, in the
event of their being unable or unwilling promptly to carry out any action
requested of them as provided in this Agreement or the Conditions, such
other leading firm of accountants as may be nominated or approved by the
Issuer;
"Fiscal Agent", "Paying Agents", "Replacement Agent" and "Agents" mean and
include each Fiscal Agent, Paying Agent, Replacement Agent and Agent from
time to time appointed to exercise the powers and undertake the duties
conferred and imposed upon it by this Agreement and notified to the
Noteholders under clause 23;
"outstanding" means in relation to the Notes all the Notes issued other
than:
(a) those Notes which have been redeemed and cancelled pursuant to
Condition 6 or otherwise pursuant to the Conditions;
(b) those Notes in respect of which the date for redemption under the
Conditions has occurred and the redemption moneys wherefore (including
all interest payable thereon) have been duly paid to the Fiscal Agent
in the manner provided in clause 5 (and, where appropriate, notice to
that effect has been given to the Noteholders under Condition 11) and
remain available for payment against presentation of the relevant
Notes and/or Coupons;
(c) those Notes which have been purchased and cancelled under Condition 6;
(d) those Notes which have become void under Condition 8;
(e) those mutilated or defaced Notes which have been surrendered and
cancelled and in respect of which replacements have been issued
pursuant to Condition 10;
(f) (for the purpose only of ascertaining the principal amount of the
Notes outstanding and without prejudice to the status for any other
purpose of the relevant Notes) those Notes which are alleged to have
been lost, stolen or destroyed and in respect of which replacements
have been issued pursuant to Condition 10; and
(g) the Temporary Global Note to the extent that it has been duly
exchanged for the Permanent Global Note and the Permanent Global Note
to the extent that it has been exchanged for the relative Notes in
definitive form in each case pursuant to their respective provisions,
provided that for each of the following purposes, namely:
(i) the right to attend and vote at any meeting of the Noteholders or
any of them; and
(ii) the determination of how many and which Notes are for the time
being outstanding for the purposes of paragraphs 2, 5, 6 and 9 of
Schedule 3,
those Notes (if any) which are for the time being held by any person
(including but not limited to, the Issuer, or any of its respective
subsidiaries) for the benefit of the Issuer, or any of its respective
subsidiaries shall (unless and until ceasing to be so held) be deemed
not to remain outstanding;
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"specified office" means the offices specified in clause 23 or any other
specified offices as may from time to time be duly notified pursuant to
clause 23.
3. APPOINTMENT OF PAYING AGENTS
(1) The Issuer appoints, on the terms and subject to the conditions of this
Agreement:
(a) Citibank, N.A. as fiscal and principal paying agent (the "Fiscal
Agent") in respect of the Notes; and
(b) Dexia Banque International a Luxembourg as paying agent (together with
the Fiscal Agent, the "Paying Agents") for the payment of principal
of, and interest on, the Notes,
in each case acting at its specified office.
(2) The Fiscal Agent, the other Paying Agents and the Replacement Agent are
together referred to as the "Agents".
4. DELIVERY OF NOTES
(1) The Issuer undertakes that the Permanent Global Note (duly executed on
behalf of the Issuer) will be available to be exchanged for interests in
the Temporary Global Note in accordance with the terms of the Temporary
Global Note and that definitive Notes will be available to be exchanged for
interests in the Permanent Global Note in accordance with its terms.
(2) The Issuer authorises and instructs the Fiscal Agent to authenticate the
Global Notes and any definitive Notes required to be issued in exchange for
the Global Notes.
(3) The Issuer undertakes that it will, if so required in accordance with the
terms of the Permanent Global Note, deliver to, or to the order of, the
Fiscal Agent, not later than the date which is 40 days prior to the date
required by the Permanent Global Note, definitive Notes (with Coupons
attached) in an aggregate principal amount of (euro)350,000,000 or such
lesser amount as is the principal amount of Notes represented by the
Permanent Global Note to be issued in exchange for the Permanent Global
Note. Each definitive Note and Coupon so delivered shall be duly executed
on behalf of the Issuer.
(4) The Issuer authorises and instructs the Fiscal Agent to cause interests in
the Temporary Global Note to be exchanged for interests in the Permanent
Global Note and interests in the Permanent Global Note to be exchanged for
definitive Notes in accordance with their respective terms. Following the
exchange of the last interest in a Global Note, the Fiscal Agent shall
cause the Global Note to be cancelled and delivered to the Issuer or as it
may direct.
(5) Subject to receipt by the Fiscal Agent of definitive Notes in accordance
with sub-clause (2) above, the Fiscal Agent shall, against presentation or
(as the case may be) surrender of the Permanent Global Note and in
accordance with the terms thereof, authenticate or cause to be
authenticated by an agent and delivered definitive Notes in the required
aggregate principal amount to the bearer of the Permanent Global Note,
provided that each definitive Note shall at the time of its delivery have
attached thereto only such Coupons as shall ensure that neither loss nor
gain accrues to the bearer thereof.
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(6) The Fiscal Agent shall cause all Notes delivered to and held by it under
this Agreement to be maintained in safe custody and shall ensure that
interests in the Temporary Global Note are only exchanged for interests in
the Permanent Global Note in accordance with the terms of the Temporary
Global Note and this Agreement and that the definitive Notes are issued
only in accordance with the terms of the Permanent Global Note and this
Agreement.
(7) So long as any of the Notes is outstanding the Fiscal Agent shall, within
seven days of any request by the Issuer, certify to the Issuer the number
of definitive Notes held by it under this Agreement.
5. PAYMENT TO THE FISCAL AGENT
(1) The Issuer shall, not later than 10.00 a.m. (London time) on each date on
which any payment of principal and/or interest in respect of any of the
Notes becomes due and payable or if the due date is not a Business Day in
London on the immediately following such Business Day, transfer to an
account specified by the Fiscal Agent such amount of euros as shall be
sufficient for the purposes of the payment of principal and/or interest in
immediately available funds or in such funds and at such times (being not
later than 10.00 a.m. (London time) on the relevant due date or if the due
date is not a Business Day in London on the immediately following such
Business Day) as may be determined by the Fiscal Agent to be customary for
the settlement of similar transactions. For the purposes of this subclause
(1), "Business Day" means a day on which commercial banks are open for
business and foreign exchange markets settle payments in the relevant place
or places.
(2) The Issuer shall ensure that, not later than the second London Business Day
immediately preceding the date on which any payment is to be made to the
Fiscal Agent pursuant to subclause (1), the Fiscal Agent shall receive a
copy of an irrevocable payment instruction to the bank through which the
payment is to be made. For the purposes of this subclause (2), "London
Business Day" means a day on which banks are open for business in London.
6. NOTIFICATION OF NON-PAYMENT BY THE ISSUER
The Fiscal Agent shall notify by telex each of the other Paying Agents
forthwith:
(a) if it has not by the relevant date specified in clause 5(1) received
unconditionally the full amount in euros required for the payment; and
(b) if it receives unconditionally the full amount of any sum due in
respect of the Notes or Coupons after such date.
The Fiscal Agent shall, at the expense of the Issuer, forthwith upon
receipt of any amount as described in subparagraph (b), cause notice of
that receipt to be published under Condition 11.
7. DUTIES OF THE PAYING AGENTS
(1) Subject to the payments to the Fiscal Agent provided for by clause 5 being
duly made, the Paying Agents shall act as paying agents of the Issuer in
respect of the Notes and pay or cause to be paid on behalf of the Issuer,
on and after each date on which any payment becomes due and payable, the
amounts of principal and/or interest then payable on surrender or, in the
case of a Global Note, endorsement, of Notes or Coupons under the
Conditions and
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this Agreement. If any payment provided for by clause 5 is made late but
otherwise under the terms of this Agreement the Paying Agents shall
nevertheless act as paying agents.
(2) If default is made by the Issuer in respect of any payment, unless and
until the full amount of the payment has been made under the terms of this
Agreement (except as to the time of making the same) or other arrangements
satisfactory to the Fiscal Agent have been made, neither the Fiscal Agent
nor any of the other Paying Agents shall be bound to act as paying agents.
(3) If on presentation of a Note or Coupon the amount payable in respect of the
Note or Coupon is not paid in full (otherwise than as a result of
withholding or deduction for or on account of any Taxes as permitted by the
Conditions) the Paying Agent to whom the Note or Coupon is presented shall
procure that the Note or Coupon is enfaced with a memorandum of the amount
paid and the date of payment.
8. REIMBURSEMENT OF THE PAYING AGENTS
The Fiscal Agent shall charge the account referred to in clause 5 for all
payments made by it under this Agreement and will credit or transfer to the
respective accounts of the other Paying Agents the amount of all payments
made by them under the Conditions immediately upon notification from them,
subject in each case to any applicable laws or regulations.
9. NOTICE OF ANY WITHHOLDING OR DEDUCTION
If the Issuer is, in respect of any payment in respect of the Notes,
compelled to withhold or deduct any amount for or on account of any Taxes
as contemplated by Condition 7, the Issuer shall give notice to the Fiscal
Agent as soon as it becomes aware of the requirement to make the
withholding or deduction and shall give to the Fiscal Agent such
information as the Fiscal Agent shall require to enable it to comply with
the requirement.
10. DUTIES OF THE FISCAL AGENT IN CONNECTION WITH OPTIONAL REDEMPTION AND
REDEMPTION FOR TAXATION REASONS
If the Issuer decides to redeem all the Notes for the time being
outstanding under Condition 6, it shall give notice of the decision to the
Fiscal Agent not less than 30 days nor more than 60 days before the
relevant redemption date.
11. PUBLICATION OF NOTICES
On behalf of and at the request and expense of the Issuer, the Fiscal Agent
shall cause to be published all notices required to be given by the Issuer
under the Conditions.
12. CANCELLATION OF NOTES AND COUPONS
(1) All Notes which are surrendered in connection with redemption, (together
with all unmatured Coupons attached to or delivered with Notes) and all
Coupons which are paid shall be cancelled by the Paying Agent to which they
are surrendered. Each of the Paying Agents shall give to the Fiscal Agent
details of all payments made by it and shall deliver all cancelled Notes
and Coupons to the Fiscal Agent (or as the Fiscal Agent may specify). Where
Notes are purchased by or on behalf of the Issuer or any of its
subsidiaries, the Issuer, shall procure that the Notes (together with all
unmatured Coupons appertaining to the Notes) are promptly cancelled and
delivered to the Fiscal Agent or its authorised agent.
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(2) The Fiscal Agent or its authorised agent shall (unless otherwise instructed
by the Issuer in writing and save as provided in clause 14(1)) destroy all
cancelled Notes and Coupons and furnish the Issuer upon written request
with a certificate of destruction containing written particulars of the
serial numbers of the Notes and the number by maturity date of Coupons so
destroyed.
13. ISSUE OF REPLACEMENT NOTES AND COUPONS
(1) The Issuer shall cause a sufficient quantity of additional forms of Notes
and Coupons to be available, upon request, to the Paying Agent in
Luxembourg (the "Replacement Agent") at its specified office for the
purpose of issuing replacement Notes or Coupons as provided below.
(2) The Replacement Agent shall, subject to and in accordance with Condition 10
and the following provisions of this clause, cause to be authenticated (in
the case only of Replacement Notes) and delivered any replacement Notes or
Coupons which the Issuer may determine to issue in place of Notes or
Coupons which have been lost, stolen, mutilated, defaced or destroyed.
(3) In the case of a mutilated or defaced Note, the Replacement Agent shall
ensure that (unless otherwise covered by such indemnity as the Issuer may
require) any replacement Note only has attached to it Coupons corresponding
to those attached to the mutilated or defaced Note which is presented for
replacement.
(4) The Replacement Agent shall obtain verification, in the case of an
allegedly lost, stolen or destroyed Note or Coupon in respect of which the
serial number is known, that the Note or Coupon has not previously been
redeemed or paid. The Replacement Agent shall not issue a replacement Note
or Coupon unless and until the applicant has:
(a) paid such expenses and costs as may be incurred in connection with the
replacement;
(b) furnished it with such evidence and indemnity as the Issuer may
reasonably require; and
(c) in the case of a mutilated or defaced Note or Coupon, surrendered it
to the Replacement Agent.
(5) The Replacement Agent shall cancel mutilated or defaced Notes or Coupons in
respect of which replacement Notes or Coupons have been issued pursuant to
this clause and all Notes which are so cancelled shall be delivered by the
Replacement Agent to the Fiscal Agent (or as it may specify). The Fiscal
Agent shall upon written request furnish the Issuer with a certificate
stating the serial numbers of the Notes or Coupons received by it and
cancelled pursuant to this clause and shall, unless otherwise requested by
the Issuer, destroy all those Notes and Coupons and furnish the Issuer upon
written request with a destruction certificate containing the information
specified in clause 12(2).
(6) The Replacement Agent shall, on issuing any replacement Note or Coupon,
forthwith inform the Issuer and the other Paying Agents of the serial
number of the replacement Note or Coupon issued and (if known) of the
serial number of the Note or Coupon in place of which the replacement Note
or Coupon has been issued. Whenever replacement Coupons are issued under
this clause, the Fiscal Agent shall also notify the other Paying Agents of
the maturity
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dates of the lost, stolen, mutilated, defaced or destroyed Coupons and of
the replacement Coupons issued.
(7) Whenever a Note or Coupon for which a replacement Note or Coupon has been
issued and the serial number of which is known is presented to a Paying
Agent for payment, the relevant Paying Agent shall immediately send notice
to the Issuer and the Fiscal Agent.
14. RECORDS AND CERTIFICATES
(1) The Fiscal Agent shall:
(a) keep a full and complete record of all Notes and Coupons (other than
serial numbers of Coupons) and of their redemption and/or purchase by
or on behalf of the Issuer or any of its respective subsidiaries
(other than purchases, cancellation or payment (as the case may be)
and of all replacement Notes or Coupons issued in substitution for
lost, stolen, mutilated, defaced or destroyed Notes or Coupons; and
(b) in respect of the Coupons of each maturity, retain until the expiry of
ten years from the Relevant Date in respect of the Coupons either all
paid Coupons of that maturity or a list of the serial numbers of
Coupons of that maturity still remaining unpaid.
The Fiscal Agent shall at all reasonable times make the records and Coupons
(if any) available to the Issuer.
(2) The Fiscal Agent shall give to the Issuer, as soon as possible and in any
event within four months of the date of redemption, purchase, payment or
replacement of a Note or Coupon (as the case may be), a certificate
stating:
(a) the aggregate principal amount of Notes which have been redeemed and
the aggregate amount in respect of Coupons which have been paid;
(b) the serial numbers of those Notes in definitive form;
(c) the total number of each denomination by maturity date of those
Coupons;
(d) the aggregate principal amounts of Notes (if any) which have been
purchased by or on behalf of the Issuer, or any of its respective
subsidiaries and cancelled (subject to delivery of the Notes to the
Fiscal Agent) and the serial numbers of such Notes in definitive form
and the total number of each denomination by maturity date of the
Coupons attached to or surrendered with the purchased Notes;
(e) the aggregate principal amounts of Notes and the aggregate amounts in
respect of Coupons which have been surrendered and replaced and the
serial numbers of those Notes in definitive form and the total number
of each denomination by maturity date of the Coupons surrendered
therewith; and
(f) the total number of each denomination by maturity date of unmatured
Coupons missing from Notes which have been redeemed or surrendered and
replaced and the serial numbers of the Notes in definitive form to
which the missing unmatured Coupons appertained.
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15. COPIES OF THIS AGREEMENT AVAILABLE FOR INSPECTION
The Paying Agents shall hold copies of this Agreement available for
inspection by Noteholders and Couponholders. For this purpose, the Issuer
shall furnish the Paying Agents with sufficient copies of such document.
16. COMMISSIONS, FEES AND EXPENSES
(1) The Issuer shall pay to the Fiscal Agent such commissions and fees in
respect of the services of the Agents under this Agreement as shall be
agreed between the Issuer and the Fiscal Agent. The Issuer shall not be
concerned with the apportionment of payment among the Agents.
(2) The Issuer shall also pay to the Fiscal Agent an amount equal to any value
added tax which may be payable in respect of the commissions or fees
together with all reasonable expenses incurred by the Agents in connection
with their services under this Agreement.
(3) The Fiscal Agent shall arrange for payment of the commissions and fees due
to the other Agents and arrange for the reimbursement of their expenses
promptly after receipt of the relevant moneys from the Issuer.
(4) At the request of the Fiscal Agent, the parties to this Agreement may from
time to time during the continuance of this Agreement review the
commissions and fees agreed initially pursuant to subclause (1) with a view
to determining whether the parties can mutually agree upon any changes to
the commissions or fees.
17. INDEMNITY
(1) The Issuer undertakes to indemnify each of the Agents and their directors,
officers, employees and controlling persons against all losses,
liabilities, costs, claims, actions, damages, expenses or demands which any
of them may incur or which may be made against any of them as a result of
or in connection with the appointment of or the exercise of the powers and
duties by any Agent under this Agreement except as may result from its
wilful default, negligence or bad faith or that of its directors, officers,
employees or controlling persons or any of them, or breach by it of the
terms of this Agreement.
(2) Each of the Agents severally undertakes to indemnify the Issuer and its
directors, officers, employees and controlling persons against all losses,
liabilities, costs, claims, actions, damages, expenses or demands which any
of them may incur or which may be made against any of them as a result of
its wilful default, negligence or bad faith or that of its directors,
officers, employees or controlling persons or any of them, or breach by it
of the terms of this Agreement.
(3) Except in the case of its wilful default, negligence or bad faith, the
Fiscal Agent shall not be liable for any act or omission under this
Agreement or if any Note shall be lost, stolen, destroyed or damaged. Under
no circumstances shall the Fiscal Agent be liable for any consequential or
special loss, howsoever caused or arising.
(4) The indemnities in this clause 17 shall survive the termination or expiry
of this Agreement.
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18. REPAYMENT BY FISCAL AGENT
Sums paid by or by arrangement with the Issuer to the Fiscal Agent pursuant
to the terms of this Agreement shall not be required to be repaid to the
Issuer unless and until any Note or Coupon becomes void under the
provisions of Condition 8 but in that event the Fiscal Agent shall
forthwith repay to the Issuer sums equivalent to the amounts which would
otherwise have been payable in respect of the relevant Note or Coupon.
19. CONDITIONS OF APPOINTMENT
(1) Subject as provided in subclause (3) of this clause the Fiscal Agent shall
be entitled to deal with money paid to it by the Issuer for the purposes of
this Agreement in the same manner as other money paid to a banker by its
customers and shall not be liable to account to the Issuer for any interest
or other amounts in respect of the money. No money held by any Paying Agent
need be segregated except as required by law.
(2) In acting under this Agreement and in connection with the Notes and the
Coupons the Agents shall act solely as agents of the Issuer and will not
assume any obligations towards or relationship of agency or trust for or
with any of the owners or holders of the Notes or the Coupons.
(3) No Paying Agent shall exercise any right of set-off or lien against the
Issuer or any holders of Notes or Coupons in respect of any moneys payable
to or by it under the terms of this Agreement.
(4) Except as ordered by a court of competent jurisdiction or required by law
or otherwise instructed by the Issuer, each of the Agents shall be entitled
to treat the holder of any Note or Coupon as the absolute owner for all
purposes (whether or not the Note or Coupon shall be overdue and
notwithstanding any notice of ownership or other writing on the Note or
Coupon or any notice of previous loss or theft of the Note or Coupon).
(5) The Agents shall be obliged to perform such duties and only such duties as
are set out in this Agreement and the Notes and no implied duties or
obligations shall be read into this Agreement or the Notes against the
Agents.
(6) The Fiscal Agent may consult with legal and other professional advisers and
the opinion of the advisers shall be full and complete protection in
respect of action taken, omitted or suffered under this Agreement in good
faith and in accordance with the opinion of the advisers.
(7) Each of the Agents shall be protected and shall incur no liability for or
in respect of action taken, omitted or suffered in reliance upon any
instruction, request or order from the Issuer or any other Agent, or any
Note or Coupon, or any notice, resolution, direction, consent, certificate,
affidavit, statement, facsimile, telex or other paper or document which it
reasonably believes to be genuine and to have been delivered, signed or
sent by the proper party or parties or upon written instructions from the
Issuer.
(8) Any of the Agents and their affiliates, their officers, directors,
employees or controlling persons, may become the owner of, or acquire any
interest in, Notes or Coupons with the same rights that it or he would have
if the Agent concerned were not appointed under this Agreement, and may
engage or be interested in any financial or other transaction with the
Issuer, and may act on, or as depositary, trustee or agent for, any
committee or body
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of holders of Notes or Coupons or other obligations of the Issuer, as
freely as if the Agent were not appointed under this Agreement.
(9) The Fiscal Agent shall not be under any obligation to take any action under
this Agreement which it expects will result in any expense or liability
accruing to it, the payment of which within a reasonable time is not, in
its opinion, assured to it.
20. COMMUNICATION WITH AGENTS
A copy of all communications relating to the subject matter of this
Agreement between the Issuer and any of the Agents other than the Fiscal
Agent shall be sent to the Fiscal Agent.
21. TERMINATION OF APPOINTMENT
(1) The Issuer may terminate the appointment of any Agent at any time and/or
appoint additional or other Agents by giving to the Agent whose appointment
is concerned and, where appropriate, the Fiscal Agent at least 90 days'
prior written notice to that effect, provided that, so long as any of the
Notes is outstanding:
(a) in the case of a Paying Agent, the notice shall not expire less than
45 days before any due date for the payment of interest; and
(b) notice shall be given to the Noteholders under Condition 11 at least
30 days before the removal or appointment of a Paying Agent.
(2) Notwithstanding the provisions of subclause (1), if at any time an Agent
becomes incapable of acting, or is adjudged bankrupt or insolvent, or files
a voluntary petition in bankruptcy or makes an assignment for the benefit
of its creditors or consents to the appointment of an administrator,
liquidator or administrative or other receiver of all or any substantial
part of its property, or if an administrator, liquidator or administrative
or other receiver of it or of all or a substantial part of its property is
appointed, or it admits in writing its inability to pay or meet its debts
as they may mature or suspends payment of its debts, or if an order of any
court is entered approving any petition filed by or against it under the
provisions of any applicable bankruptcy or insolvency law or if a public
officer takes charge or control of the Agent or of its property or affairs
for the purpose of rehabilitation, administration or liquidation, the
Issuer may forthwith without notice terminate the appointment of the Agent,
in which event notice shall be given to the Noteholders under Condition 11
as soon as is practicable.
(3) The termination of the appointment of an Agent under this Agreement shall
not entitle the Agent to any amount by way of compensation but shall be
without prejudice to any amount then accrued due.
(4) All or any of the Agents may resign their respective appointments under
this Agreement at any time by giving to the Issuer and, where appropriate,
the Fiscal Agent at least 90 days' prior written notice to that effect
provided that, so long as any of the Notes is outstanding, the notice shall
not, in the case of a Paying Agent, expire less than 45 days before any due
date for the payment of interest. Following receipt of a notice of
resignation from a Paying Agent, the Issuer shall promptly, and in any
event not less than 30 days before the resignation takes effect, give
notice to the Noteholders under Condition 11. If the Fiscal Agent shall
resign or be removed pursuant to subclauses (1) or (2) above or in
accordance with this subclause (4), the Issuer shall promptly and in any
event within 30 days appoint a successor (being a leading bank acting
through its office in London). If the Issuer fails to appoint a successor
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within such period, the Fiscal Agent may select a leading bank acting
through its office in London to act as Fiscal Agent hereunder and the
Issuer shall appoint that bank as the successor Fiscal Agent.
(5) Notwithstanding the provisions of subclauses (1), (2) and (4), so long as
any of the Notes is outstanding, the termination of the appointment of an
Agent (whether by the Issuer or by the resignation of the Agent) shall not
be effective unless upon the expiry of the relevant notice there is:
(a) a Fiscal Agent; and
(b) at least two Paying Agents (one of which may be the Fiscal Agent)
having specified offices in separate European cities one of which, so
long as the Notes are listed on the Luxembourg Stock Exchange, shall
be Luxembourg or such other place as the Luxembourg Stock Exchange may
approve; and
(c) so long as the Notes are listed on the Luxembourg Stock Exchange, a
Replacement Agent in Luxembourg.
(6) Any successor Agent shall execute and deliver to its predecessor, the
Issuer and where appropriate, the Fiscal Agent an instrument accepting the
appointment under this Agreement, and the successor Agent, without any
further act, deed or conveyance, shall become vested with all the
authority, rights, powers, trusts, immunities, duties and obligations of
the predecessor with like effect as if originally named as an Agent.
(7) If the appointment of a Paying Agent under this Agreement is terminated
(whether by the Issuer or by the resignation of the Paying Agent), the
Paying Agent shall on the date on which the termination takes effect
deliver to its successor Paying Agent (or, if none, the Fiscal Agent) all
Notes and Coupons surrendered to it but not yet destroyed and all records
concerning the Notes and Coupons maintained by it (except such documents
and records as it is obliged by law or regulation to retain or not to
release) and pay to its successor Paying Agent (or, if none, to the Fiscal
Agent) the amounts (if any) held by it in respect of Notes or Coupons which
have become due and payable but which have not been presented for payment,
but shall have no other duties or responsibilities under this Agreement.
(8) If the Fiscal Agent or any of the other Paying Agents shall change its
specified office, it shall give to the Issuer and, where appropriate, the
Fiscal Agent not less than 45 days' prior written notice to that effect
giving the address of the new specified office. As soon as practicable
thereafter and in any event at least 30 days before the change, the Fiscal
Agent shall give to the Noteholders on behalf of and at the expense of the
Issuer notice of the change and the address of the new specified office
under Condition 11.
(9) A corporation into which any Agent for the time being may be merged or
converted or a corporation with which the Agent may be consolidated or a
corporation resulting from a merger, conversion or consolidation to which
the Agent shall be a party shall, to the extent permitted by applicable
law, be the successor Agent under this Agreement without the execution or
filing of any paper or any further act on the part of any of the parties to
this Agreement. Notice of any merger, conversion or consolidation shall
forthwith be given to the Issuer, and, where appropriate, the Fiscal Agent.
12
22. MEETINGS OF NOTEHOLDERS
(1) The provisions of Schedule 4 shall apply to meetings of the Noteholders and
shall have effect in the same manner as if set out in this Agreement
provided that, so long as any of the Notes are represented by a Global
Note, the expression "Noteholders" shall include the persons for the time
being shown in the records of Euroclear and/or Clearstream, Luxembourg, as
the holders of a particular principal amount of such Notes (each an
"Accountholder") (in which regard a certificate or other document issued by
Euroclear or Clearstream, Luxembourg as to the principal amount of such
Notes standing to the account of any person shall be conclusive and
binding) for all purposes other than with respect to the payment of
principal and interest on such Notes, the right to which shall be vested as
against the Issuer solely in the bearer of each Global Note in accordance
with and subject to its terms, and the expressions "holder" and "holders"
shall be construed accordingly and the expression "Notes" shall mean units
of (euro)1,000, (euro)10,000 and (euro)100,000 principal amount of Notes.
(2) Without prejudice to subclause (1), each of the Paying Agents shall, on the
request of any holder of Notes, issue Voting Certificates and Block Voting
Instructions (as defined in paragraph 1 of Schedule 4) together, if so
required by the Issuer, with reasonable proof satisfactory to the Issuer of
their due execution on behalf of the Paying Agent under the provisions of
Schedule 4 and shall forthwith give notice to the Issuer under Schedule 4
of any revocation or amendment of a Voting Certificate or Block Voting
Instruction. Each Paying Agent shall keep a full and complete record of all
Voting Certificates and Block Voting Instructions issued by it and shall,
not less than 24 hours before the time appointed for holding any meeting or
adjourned meeting, deposit at such place as the Fiscal Agent shall
designate or approve, full particulars of all Voting Certificates and Block
Voting Instructions issued by it in respect of any meeting or adjourned
meeting.
23. NOTICES
Any notice required to be given under this Agreement to any of the parties
shall be delivered in person, sent by pre-paid post (first class if inland,
first class airmail if overseas) or by facsimile or telex addressed to:
The Issuer: Liz Claiborne, Inc.
Xxx Xxxxxxxxx Xxxxxx
Xxxxx Xxxxxx
Xxx Xxxxxx
00000
Facsimile No: + (000) 000 0000
(Attention: General Counsel)
With a copy to:
Liz Claiborne, Inc.
0000 Xxxxxxxx
Xxx Xxxx
XX 00000
Facsimile No: + (000) 000 0000
(Attention: Xxxxxx Xxxx)
13
The Fiscal Agent: Citibank, N.A.
0 Xxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Telex No: 000000 XXXXXX G
Facsimile No: x00 00 0000 0000
(Attention: Agency & Trust)
The Paying Agent: Dexia Banque Internationale a
Luxembourg
00 Xxxxx x'Xxxx
X-0000 Xxxxxxxxxx
Xxxxxxxxx No: + 352 4590 4227
(Attention: New Issues and Listing
Agency)
or such other address of which notice in writing has been given to the
other parties to this Agreement under the provisions of this clause.
Any such notice shall take effect, if delivered in person, at the time of
delivery, if sent by post, three days in the case of inland post or seven
days in the case of overseas post after despatch, and, in the case of telex
or facsimile, 24 hours after the time of despatch, provided that in the
case of a notice given by telex or facsimile transmission such notice shall
forthwith be confirmed by post. The failure of the addressee to receive
such confirmation shall not invalidate the relevant notice given by telex
or facsimile.
If the Issuer uses facsimile to notify the Fiscal Agent of its intention to
exercise any option (including, but not limited to, early redemption) in
relation to any Notes, the Fiscal Agent will confirm receipt of any such
notification to the Issuer by fax no later than 12 noon (London time) on
the London business day following receipt from the Issuer. In the event
that the Issuer does not receive such confirmation of receipt from the
Fiscal Agent, the Issuer will immediately notify the Fiscal Agent by
telephone of the lack of such confirmation. Until such time as the Issuer
has received faxed confirmation of receipt from the Fiscal Agent, no option
exercise notification shall be deemed to have been received by the Fiscal
Agent, however, the Fiscal Agent shall be protected and shall incur no
liability for acting on any option exercise notification irrespective of
whether or not receipt of the same has been confirmed by the Fiscal Agent
to the Issuer.
The Issuer hereby acknowledges that it is fully aware of the risk
associated with transmitting instructions via facsimile, and being aware of
these risks authorises the Fiscal Agent to accept and act upon any
instruction sent to the Fiscal Agent in the Issuer's name or in the name of
one or more appropriate authorised signatories of the Issuer via facsimile.
The Fiscal Agent shall be entitled to the benefit of the provisions of
clause 17 when accepting or acting upon any instructions, communications or
documents transmitted by facsimile, and shall not be liable in the event
any facsimile transmission is not received, or is mutilated, illegible,
interrupted, duplicated, incomplete, unauthorised or delayed for any
reason, including (but not limited to) electronic or telecommunications
failure.
14
24. TAXES
The Issuer agrees to pay any and all stamp and other documentary taxes or
duties which may be payable in connection with the execution, delivery,
performance and enforcement of this Agreement.
25. COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of which,
taken together, shall constitute one and the same agreement and any party
may enter into this Agreement by executing a counterpart. Signed facsimile
copies of this Agreement will legally bind the parties to the same extent
as original documents.
26. DESCRIPTIVE HEADINGS
The descriptive headings in this Agreement are for convenience of reference
only and shall not define or limit the provisions of this Agreement.
27. GOVERNING LAW AND SUBMISSION TO JURISDICTION
(1) The provisions of this Agreement are governed by, and shall be construed in
accordance with, the laws of the State of New York, without regard to
principles of conflicts of law.
(2) Each of the Issuer and the Agents irrevocably consents to the non-exclusive
jurisdiction of the State or Federal courts sitting in the Borough of
Manhattan, the City of New York ("New York Courts") for adjudicating any
dispute which may arise out of or in connection with this Agreement and
that accordingly any suit, action or proceedings arising out of or in
connection with this Agreement (together referred to as "Proceedings") may
be brought in such New York Courts.
(3) Each of the Issuer and the Agents irrevocably waives any objection which it
may have now or hereafter to the laying of the venue of any Proceedings in
any New York Courts and any claim that any Proceedings have been brought in
an inconvenient forum and further irrevocably agrees that a judgment in any
Proceedings brought in the New York Courts shall be conclusive and binding
upon the Issuer, or, as the case may be, the Agents and may be enforced in
the courts of any other jurisdiction.
(4) Nothing in this clause shall limit any right to take Proceedings in any
other court of competent jurisdiction, nor shall the taking of Proceedings
in one or more jurisdictions preclude the taking of Proceedings in any
other jurisdiction, whether concurrently or not.
(5) The Issuer hereby agrees that the process by which any Proceedings in the
New York Courts are begun may be served on it by being delivered to it c/o
General Counsel, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and agrees further
that service of process upon such person shall be deemed in every respect
effective service of process in any such proceedings. If the appointment of
the person appointed to receive process on behalf of the Issuer ceases to
be effective, the Issuer shall forthwith appoint a further person in the
State of New York to accept service of process on its behalf and notify the
name and address of such person to the Fiscal Agent and, failing such
appointment within fifteen days, the Fiscal Agent, on behalf of the Paying
Agents, shall be entitled to appoint such a person by written notice
addressed and delivered to the Issuer.
15
(6) The Issuer:
(a) agrees that failure by any such person appointed to receive process on
behalf of the Issuer to give notice of service of process to the
Issuer shall not impair the validity of such service or of any
judgment based thereon;
(b) consents to the service of process in respect of any Proceedings by
the airmailing of copies, postage prepaid, to the Issuer in accordance
with clause 23; and
(c) agrees that nothing in this Agreement shall affect the right to serve
process in any other manner permitted by law.
28. AMENDMENTS
This Agreement may be amended by all of the parties, without the consent of
any Noteholder or Couponholder, either:
(a) for the purpose of curing any ambiguity or of curing, correcting or
supplementing any defective provision contained in this Agreement so
long as such amendment is not materially prejudicial to the interests
of Noteholders; or
(b) in any manner which the parties may mutually deem necessary or
desirable and which shall not be inconsistent with the Conditions and
shall not be materially prejudicial to the interests of the
Noteholders.
SIGNED by each of the parties (or their duly authorised representatives) on the
date which appears first on page 1.
16
SCHEDULE 1
PART I
- FORM OF THE TEMPORARY GLOBAL NOTE -
LIZ CLAIBORNE, INC.
TEMPORARY GLOBAL NOTE
(euro)350,000,000
6.625 per cent. Notes due 2006
This Temporary Global Note is issued in respect of the (euro)350,000,000 6.625
per cent. Notes due 2006 (the "Notes") of Liz Claiborne, Inc. (the "Issuer").
The Notes are issued subject to and with the benefit of an Agency Agreement (the
"Agency Agreement") dated 6th August, 2001 between, inter alios, the Issuer, and
Citibank, N.A. as Fiscal Agent (the "Fiscal Agent"). The Notes are issued
subject to and with the benefit of the Conditions of the Notes (the
"Conditions") set out in Part II of Schedule 2 to the Agency Agreement.
1. PROMISE TO PAY
Subject as provided in this Temporary Global Note, the Issuer, for value
received, promises to pay the bearer upon presentation and surrender of
this Temporary Global Note such sum as is equal to the principal amount of
the Notes represented by this Temporary Global Note as shown in the title
of this Temporary Global Note or such lesser amount as is shown by the
latest entry in Part I or Part II of the Schedule to this Temporary Global
Note on 7th August, 2006 or on such earlier date as the principal in
respect of this Temporary Global Note may become due under the Conditions
and to pay interest on the principal sum for the time being outstanding at
the rate of 6.625 per cent. per annum from 7th August, 2001 payable
annually in arrear on 7th August in each year until payment of the
principal sum has been made or duly provided for in full together with any
other amounts as may be payable, all subject to and under the Conditions.
2. EXCHANGE FOR PERMANENT GLOBAL NOTE AND PURCHASES
The Permanent Global Note to be issued on exchange for interests in this
Temporary Global Note will be substantially in the form set out in Part II
of Schedule 1 to the Agency Agreement.
Subject as provided below, the Permanent Global Note will only have an
entry made to represent Definitive Notes after the date which is 40 days
after the closing date for the Notes.
Interests in this Temporary Global Note may be exchanged for interests in a
duly executed and authenticated Permanent Global Note without charge and
the Fiscal Agent or such other person as the Fiscal Agent may direct (the
"Exchange Agent") shall make the appropriate entry on Part I of the
Schedule to the Permanent Global Note, in full or partial exchange for
17
this Temporary Global Note, in order that the Permanent Global Note
represents an aggregate principal amount of Notes equal to the principal
amount of this Temporary Global Note submitted for exchange.
Notwithstanding the foregoing, no such entry shall be made on the Permanent
Global Note unless there shall have been presented to the Exchange Agent a
certificate from Euroclear Bank S.A./N.V., as operator of the Euroclear
System ("Euroclear") or Clearstream Banking, societe anonyme ("Clearstream,
Luxembourg") substantially in the form of the certificate attached as
Exhibit A.
Notwithstanding the foregoing, where this Temporary Global Note has been
exchanged in part for the Permanent Global Note pursuant to the foregoing
and Definitive Notes have been issued in exchange for the total amount of
Notes represented by the Permanent Global Note pursuant to its terms,
because Euroclear and/or Clearstream, Luxembourg do not regard the
Permanent Global Note to be fungible with such Definitive Notes, then
interests in this Temporary Global Note will no longer be exchangeable for
interests in the Permanent Global Note but will be exchangeable, in full or
partial exchange, for duly executed and authenticated Definitive Notes,
without charge, in the denomination of (euro)1,000, (euro)10,000 and
(euro)100,000 each with interest coupons attached, such Definitive Notes to
be substantially in the form set out in Part I of Schedule 2 to the Agency
Agreement. Notwithstanding the foregoing, Definitive Notes shall not be so
issued and delivered unless there shall have been presented to the Exchange
Agent a certificate from Euroclear or Clearstream, Luxembourg substantially
in the form of the certificate attached as Exhibit A.
Any person who would, but for the provisions of this Temporary Global Note
and of the Agency Agreement, otherwise be entitled to receive either (i) an
interest in the Permanent Global Note or (ii) Definitive Notes shall not be
entitled to require the exchange of an appropriate part of this Temporary
Global Note for an interest in the Permanent Global Note or Definitive
Notes unless and until he shall have delivered or caused to be delivered to
Euroclear or Clearstream, Luxembourg a certificate in substantially the
form of the certificate attached as Exhibit B (copies of which form of
certificate will be available at the offices of Euroclear in Brussels and
Clearstream, Luxembourg in Luxembourg and the specified offices of each
Paying Agent named in the Agency Agreement).
Upon (a) any exchange of the whole or a part of this Temporary Global Note
for an interest in the Permanent Global Note or for a Definitive Note, (b)
receipt of instructions from Euroclear or Clearstream, Luxembourg that,
following the purchase by or on behalf of the Issuer or any of its
subsidiaries of the whole or a part of this Temporary Global Note, part is
to be cancelled or (c) any redemption of the whole of this Temporary Global
Note, the portion of the principal amount of this Temporary Global Note so
exchanged, cancelled or redeemed shall be entered by or on behalf of the
Fiscal Agent on Part I of the Schedule to this Temporary Global Note,
whereupon the principal amount of this Temporary Global Note shall be
reduced for all purposes by the amount so exchanged, cancelled or redeemed
and entered.
Upon (a) the exchange of the whole of this Temporary Global Note for
interests in the Permanent Global Note and/or Definitive Notes or (b) any
redemption of the whole of this Temporary Global Note, this Temporary
Global Note shall be surrendered to or to the order of the Fiscal Agent and
cancelled and, if the Issuer requests, returned to it together with any
relevant Definitive Notes.
18
3. BENEFITS
Until the entire principal amount of this Temporary Global Note has been
extinguished in exchange for the Permanent Global Note and/or Definitive
Notes, this Temporary Global Note shall in all respects be entitled to the
same benefits as the Definitive Notes referred to above, except that the
holder of this Temporary Global Note shall only be entitled to receive any
payment on this Temporary Global Note on presentation of certificates as
provided below.
4. PAYMENTS
Payments due in respect of Notes for the time being represented by this
Temporary Global Note shall be made to the bearer only upon presentation by
Euroclear or, as the case may be, Clearstream, Luxembourg, to the Fiscal
Agent at its specified office of a certificate, substantially in the form
of the certificate attached as Exhibit A, to the effect that Euroclear, or
as the case may be, Clearstream, Luxembourg, has received a certificate
substantially in the form of the certificate attached as Exhibit B.
Upon any payment in respect of the Notes represented by this Temporary
Global Note, the amount so paid shall be entered by or on behalf of the
Fiscal Agent on Part II of the Schedule to this Temporary Global Note. In
the case of any payment of principal the principal amount of this Temporary
Global Note shall be reduced for all purposes in proportion to the amount
so paid and the remaining principal amount of this Temporary Global Note
shall be entered by or on behalf of the Fiscal Agent on Part II of the
Schedule to this Temporary Global Note.
5. ACCOUNT HOLDERS
For so long as any of the Notes are represented by this Temporary Global
Note, each person who is for the time being shown in the records of
Euroclear and/or Clearstream, Luxembourg as the holder of a particular
principal amount of Notes (each an "Accountholder") shall be treated by the
Issuer as the holder of that principal amount for all purposes (including
but not limited to for the purposes of giving notice to the Issuer pursuant
to Condition 11) other than with respect to the payment of principal and
interest in respect of the Notes, the right to which shall be vested, as
against the Issuer, solely in the bearer of this Temporary Global Note in
accordance with and subject to its terms. Any certificate or other document
issued by Euroclear or Clearstream, Luxembourg as to the principal amount
of Notes standing to the account of any Accountholder shall be conclusive
and binding for all purposes.
Notes represented by this Temporary Global Note are transferable in
accordance with the rules and procedures for the time being of Euroclear or
Clearstream, Luxembourg as appropriate.
The Issuer covenants in favour of each Accountholder that it will make all
payments in respect of the principal amount of Notes for the time being
shown in the records of Euroclear and/or Clearstream, Luxembourg as being
held by the Accountholder and represented by this Temporary Global Note to
the bearer of this Temporary Global Note in accordance with clause 1 above
and acknowledges that each Accountholder may take proceedings to enforce
this covenant and any of the other rights which it has under the first
paragraph of this clause directly against the Issuer.
19
6. NOTICES
So long as any of the Notes are represented by this Temporary Global Note
and this Temporary Global Note is held on behalf of Euroclear or
Clearstream, Luxembourg, notices required to be given to Noteholders may be
given by their being delivered to Euroclear and/or Clearstream, Luxembourg,
as the case may be, for communication to Accountholders, rather than by
publication as required by the Conditions save that, so long as the Notes
are listed on any Stock Exchange, notices will also be published in
accordance with the requirements of any such Stock Exchange.
7. PRESCRIPTION
Claims against the Issuer in respect of principal and interest on the Notes
represented by this Temporary Global Note will be prescribed after 10 years
(in the case of principal) and five years (in the case of interest) from
the Relevant Date (as defined in Condition 7).
8. AUTHENTICATION
This Temporary Global Note shall not become valid or enforceable for any
purpose unless and until it has been authenticated by or on behalf of the
Fiscal Agent.
9. GOVERNING LAW
This Temporary Global Note is governed by, and shall be construed in
accordance with, the laws of the State of New York.
IN WITNESS whereof this Temporary Global Note has been executed as a deed poll
on behalf of the Issuer.
Executed as a deed by )
LIZ CLAIBORNE, INC. )
acting by: )
acting under the authority of that )
company in the presence of: )
Signature:
Name:
Address:
Dated 6th August, 2001
20
CERTIFICATE OF AUTHENTICATION
This is the Temporary Global Note
described in the Agency Agreement
By or on behalf of
CITIBANK, N.A. as Fiscal Agent
(without recourse, warranty or liability)
........................................................
........................................................
THIS TEMPORARY GLOBAL NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"). NEITHER THIS
TEMPORARY GLOBAL NOTE NOR ANY PORTION HEREOF MAY BE OFFERED OR SOLD WITHIN THE
UNITED STATES OR TO ANY U.S. PERSON UNLESS AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT IS AVAILABLE.
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.
IN ADDITION, THOSE LIMITATIONS MAY ALSO APPLY TO ANY OTHER BEARER WHO TAKES INTO
ACCOUNT GAIN OR LOSS WITH RESPECT TO THIS OBLIGATION IN DETERMINING SUCH
BEARER'S INCOME SUBJECT TO UNITED STATES FEDERAL INCOME TAX.
21
THE SCHEDULE
Part I
EXCHANGES FOR THE PERMANENT GLOBAL NOTE
AND CANCELLATIONS
The following exchanges of a part of this Temporary Global Note for interests in
the Permanent Global Note and cancellations of a part of the aggregate principal
amount of this Temporary Global Note have been made:
Part of the aggregate
principal amount of Remaining principal Notation
this Temporary Global Part of the aggregate amount of this made by or
Note exchanged for principal amount of Temporary Global Note on behalf of
Date of exchange interests in the this Temporary Global following exchange or the Fiscal
or cancellation Permanent Global Note Note cancelled cancellation Agent
(euro) (euro) (euro)
__________________ _______________________ _______________________ _______________________ _______________________
__________________ _______________________ _______________________ _______________________ _______________________
__________________ _______________________ _______________________ _______________________ _______________________
__________________ _______________________ _______________________ _______________________ _______________________
__________________ _______________________ _______________________ _______________________ _______________________
__________________ _______________________ _______________________ _______________________ _______________________
__________________ _______________________ _______________________ _______________________ _______________________
__________________ _______________________ _______________________ _______________________ _______________________
__________________ _______________________ _______________________ _______________________ _______________________
__________________ _______________________ _______________________ _______________________ _______________________
__________________ _______________________ _______________________ _______________________ _______________________
__________________ _______________________ _______________________ _______________________ _______________________
__________________ _______________________ _______________________ _______________________ _______________________
__________________ _______________________ _______________________ _______________________ _______________________
__________________ _______________________ _______________________ _______________________ _______________________
__________________ _______________________ _______________________ _______________________ _______________________
__________________ _______________________ _______________________ _______________________ _______________________
__________________ _______________________ _______________________ _______________________ _______________________
__________________ _______________________ _______________________ _______________________ _______________________
__________________ _______________________ _______________________ _______________________ _______________________
__________________ _______________________ _______________________ _______________________ _______________________
__________________ _______________________ _______________________ _______________________ _______________________
22
Part II
PAYMENTS
The following payments in respect of the Notes represented by this Temporary
Global Note have been made:
Notation
Remaining principal made by or
amount of this on behalf of
Amount of principal Temporary Global Note the Fiscal
Date of payment Amount of interest paid paid following payment Agent
(euro) (euro) (euro)
__________________ _______________________ _______________________ _______________________ _______________________
__________________ _______________________ _______________________ _______________________ _______________________
__________________ _______________________ _______________________ _______________________ _______________________
__________________ _______________________ _______________________ _______________________ _______________________
__________________ _______________________ _______________________ _______________________ _______________________
__________________ _______________________ _______________________ _______________________ _______________________
__________________ _______________________ _______________________ _______________________ _______________________
__________________ _______________________ _______________________ _______________________ _______________________
__________________ _______________________ _______________________ _______________________ _______________________
__________________ _______________________ _______________________ _______________________ _______________________
__________________ _______________________ _______________________ _______________________ _______________________
__________________ _______________________ _______________________ _______________________ _______________________
__________________ _______________________ _______________________ _______________________ _______________________
__________________ _______________________ _______________________ _______________________ _______________________
__________________ _______________________ _______________________ _______________________ _______________________
__________________ _______________________ _______________________ _______________________ _______________________
__________________ _______________________ _______________________ _______________________ _______________________
__________________ _______________________ _______________________ _______________________ _______________________
__________________ _______________________ _______________________ _______________________ _______________________
__________________ _______________________ _______________________ _______________________ _______________________
__________________ _______________________ _______________________ _______________________ _______________________
__________________ _______________________ _______________________ _______________________ _______________________
23
EXHIBIT A
LIZ CLAIBORNE, INC.
(euro)350,000,000 6.625 per cent. Notes due 2006
(the "Securities")
This is to certify that, based solely on certifications we have received in
writing, by tested telex or by electronic transmission from member organisations
appearing in our records as persons being entitled to a portion of the principal
amount set forth below (our "Member Organisations") substantially to the effect
set forth in the Agency Agreement, as of the date hereof, [ ]
principal amount of the above-captioned Securities (i) is owned by persons that
are not citizens or residents of the United States, domestic partnerships,
domestic corporations or any estate or trust the income of which is subject to
United States federal income taxation regardless of its source ("United States
persons"), (ii) is owned by United States persons that (a) are foreign branches
of United States financial institutions (as defined in U.S. Treasury Regulations
Section 1.165-12(c)(1)(v)) ("financial institutions") purchasing for their own
account or for resale, or (b) acquired the Securities through foreign branches
of United States financial institutions and who hold the Securities through such
United States financial institutions on the date hereof (and in either case (a)
or (b), each such United States financial institution has agreed, on its own
behalf or through its agent, that we may advise the Issuer or the Issuer's agent
that it will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of
the Internal Revenue Code of 1986, as amended, and the regulations thereunder),
or (iii) is owned by United States or foreign financial institutions for
purposes of resale during the restricted period (as defined in U.S. Treasury
Regulations Section 1.163-5(c)(2)(i)(D)(7)), and to the further effect that
United States or foreign financial institutions described in clause (iii) above
(whether or not also described in clause (i) or (ii)) have certified that they
have not acquired the Securities for purposes of resale directly or indirectly
to a United States person or to a person within the United States or its
possessions.
As used herein, "United States" means the United States of America (including
the States and the District of Columbia); and its "possessions" include Puerto
Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands.
If the Securities are of the category contemplated in Section 230.903(b)(3) of
Regulation S under the Securities Act of 1933, as amended, then this is also to
certify with respect to such principal amount of Securities set forth above
that, except as set forth below, we have received in writing, by tested telex or
by electronic transmission, from our Member Organisations entitled to a portion
of such principal amount, certifications with respect to such portion,
substantially to the effect set forth in the Agency Agreement.
We further certify (i) that we are not making available herewith for exchange
(or, if relevant, exercise of any rights or collection of any interest) any
portion of the Temporary Global Note representing the Securities excepted in
such certifications and (ii) that as of the date hereof we have not received any
notification from any of our Member Organisations to the effect that the
statements made by such Member Organisations with respect to any portion of the
part submitted herewith for exchange (or, if relevant, exercise of any rights or
collection of any interest) are no longer true and cannot be relied upon as of
the date hereof.
24
We understand that this certification is required in connection with certain tax
laws and, if applicable, certain securities laws of the United States. In
connection therewith, if administrative or legal proceedings are commenced or
threatened in connection with which this certification is or would be relevant,
we irrevocably authorise you to produce this certification to any interested
party in such proceedings.
Dated
[Euroclear Bank S.A./N.V.,
as operator of the
Euroclear System] [Clearstream Banking, societe anonyme]
By ...................................
Authorised Signatory
25
EXHIBIT B
LIZ CLAIBORNE, INC.
(euro)350,000,000 6.625 per cent. Notes due 2006
(the "Securities")
This is to certify that as of the date hereof, and except as set forth below,
the above-captioned Securities held by you for our account (i) are owned by
person(s) that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the income of which
is subject to United States federal income taxation regardless of its source
("United States person(s)"), (ii) are owned by United States person(s) that (a)
are foreign branches of United States financial institutions (as defined in U.S.
Treasury Regulations Section 1.165-12(c)(1)(v)) ("financial institutions")
purchasing for their own account or for resale, or (b) acquired the Securities
through foreign branches of United States financial institutions and who hold
the Securities through such United States financial institutions on the date
hereof (and in either case (a) or (b), each such United States financial
institution hereby agrees, on its own behalf or through its agent, that you may
advise the Issuer or the Issuer's agent that it will comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of
1986, as amended, and the regulations thereunder), or (iii) are owned by United
States or foreign financial institution(s) for purposes of resale during the
restricted period (as defined in U.S. Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), and in addition if the owner of the Securities is a
United States or foreign financial institution described in clause (iii) above
(whether or not also described in clause (i) or (ii)) this is further to certify
that such financial institution has not acquired the Securities for the purposes
of resale directly or indirectly to a United States person or to a person within
the United States or its possessions.
If the Securities are of the category contemplated in Section 230.903(b)(3) of
Regulation S under the Securities Act of 1933, as amended (the "Act"), then this
is also to certify that, except as set forth below (i) in the case of debt
securities, the Securities are beneficially owned by (a) non-U.S. person(s) or
(b) U.S. person(s) who purchased the Securities in transactions which did not
require registration under the Act; or (ii) in the case of equity securities,
the Securities are owned by (x) non-U.S. person(s) (and such person(s) are not
acquiring the Securities for the account or benefit of U.S. person(s)) or (y)
U.S. person(s) who purchased the Securities in a transaction which did not
require registration under the Act. If this certification is being delivered in
connection with the exercise of warrants pursuant to Section 230.903(b)(5) of
Regulation S under the Act, then this is further to certify that, except as set
forth below, the Securities are being exercised by and on behalf of non-U.S.
person(s). As used in this paragraph the term "U.S. person" has the meaning
given to it by Regulation S under the Act.
As used herein, "United States" means the United States of America (including
the States and the District of Columbia); and its "possessions" include Puerto
Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the date on
which you intend to submit your certification relating to the Securities held by
you for our account in accordance with your documented procedures if any
applicable statement herein is not correct on such date, and in the absence of
any such notification it may be assumed that this certification applies as of
such date.
26
This certification excepts and does not relate to [ ] of such
interest in the above Securities in respect of which we are not able to certify
and as to which we understand exchange and delivery of Definitive Securities
(or, if relevant, exercise of any rights or collection of any interest) cannot
be made until we do so certify.
We understand that this certification is required in connection with certain tax
laws and, if applicable, certain securities laws of the United States. In
connection therewith, if administrative or legal proceedings are commenced or
threatened in connection with which this certification is or would be relevant,
we irrevocably authorise you to produce this certification to any interested
party in such proceedings.
Dated
By ......................
Qualified Account Holder
27
PART II
- FORM OF THE PERMANENT GLOBAL NOTE -
LIZ CLAIBORNE, INC.
PERMANENT GLOBAL NOTE
(euro)350,000,000 6.625 per cent. Notes due 2006
This Permanent Global Note is issued in respect of the (euro)350,000,000 6.625
per cent. Notes due 2006 (the "Notes") of Liz Claiborne, Inc. (the "Issuer").
The Notes are initially represented by a Temporary Global Note interests in
which will be exchanged in accordance with the terms of the Temporary Global
Note for interests in this Permanent Global Note and, if applicable, Definitive
Notes. The Notes are issued subject to and with the benefit of an Agency
Agreement (the "Agency Agreement") dated 6th August, 2001 between, inter alios,
the Issuer, Citibank, N.A. as Fiscal Agent (the "Fiscal Agent"). The Notes are
issued subject to and with the benefit of the Conditions of the Notes (the
"Conditions") set out in Part II of Schedule 2 to the Agency Agreement.
1. PROMISE TO PAY
Subject as provided in this Permanent Global Note, the Issuer, for value
received, promises to pay the bearer upon presentation and surrender of
this Permanent Global Note the sum of (euro)350,000,000 (three hundred and
fifty million euro) or such lesser sum as is equal to the principal amount
of the Notes represented by this Permanent Global Note as shown by the
latest entry in Part I, Part II or Part III of the Schedule to this
Permanent Global Note on 7th August, 2006 or on such earlier date as the
principal of this Permanent Global Note may become due under the Conditions
and to pay interest on the principal sum for the time being outstanding at
the rate of 6.625 per cent. per annum from 7th August, 2001 payable
annually in arrear on 7th August in each year until payment of the
principal sum has been made or duly provided for in full together with any
other amounts as may be payable, all subject to and under the Conditions.
2. EXCHANGE OF INTERESTS IN THE TEMPORARY GLOBAL NOTE FOR INTERESTS IN THIS
PERMANENT GLOBAL NOTE
Upon any exchange of an interest in the Temporary Global Note representing
the Notes for an interest in this Permanent Global Note, the Fiscal Agent
shall make the appropriate entry in Part I of the Schedule to this
Permanent Global Note in order to indicate the principal amount of Notes
represented by this Permanent Global Note following such exchange.
3. EXCHANGE FOR DEFINITIVE NOTES AND PURCHASES
This Permanent Global Note may be exchanged in whole, but not in part, for
duly executed and authenticated Definitive Notes without charge to the
holder if (i) an event of default
28
under Condition 9 has occurred and is continuing, (ii) either Euroclear
Bank S.A./N.V. as operator of the Euroclear System ("Euroclear") and/or
Clearstream Banking, societe anonyme ("Clearstream, Luxembourg") is closed
for business for a continuous period of 14 days (other than by reason of
holiday, statutory or otherwise) or announces an intention permanently to
cease business or does in fact do so and no successor clearing system is
available, (iii) the Issuer would suffer a material disadvantage in respect
of the Notes as a result of a change in the laws or regulations (taxation
or otherwise) of any Relevant Jurisdiction (as defined in Condition 7) or
as a result of a change in the practice of Euroclear or Clearstream,
Luxembourg which would not be suffered were the Notes in definitive form
and a certificate to such effect signed by two duly authorised officers of
the Issuer is delivered to the Fiscal Agent for display to Noteholders, or
(iv) so requested by a Noteholder. Thereupon (in the case of (i) and (ii)
above) the holder of this Permanent Global Note may give notice to the
Fiscal Agent and the Issuer, and (in the case of (iii) and (iv) above) the
holder of this Permanent Global Note may give notice to the Fiscal Agent
and the Noteholders, of its intention to exchange this Permanent Global
Note for Definitive Notes on or after the Exchange Date (as defined below).
On the Exchange Date the Fiscal Agent or such other person as the Fiscal
Agent may direct (the "Exchange Agent") shall deliver, in full an aggregate
principal amount of duly executed and authenticated Definitive Notes with
Coupons attached equal to the total principal amount of this Permanent
Global Note to be so exchanged.
"Exchange Date" means a day specified in the notice requiring exchange
falling not less than 60 days after that on which such notice is given,
being a day on which banks are open for business in the place in which the
specified office of the Fiscal Agent is located and, except in the case of
exchange pursuant to (ii) above, in the place in which the relevant
clearing system is located.
The Definitive Notes to be issued on exchange will be in bearer form in the
denomination of (euro)1,000, (euro)10,000, (euro)100,000 each with interest
coupons ("Coupons") attached and will be substantially in the form set out
in Part II of Schedule 2 to the Agency Agreement.
Upon (a) any exchange of the whole of this Permanent Global Note for
Definitive Notes, (b) receipt of instructions from Euroclear and
Clearstream, Luxembourg that, following the purchase by or on behalf of the
Issuer or any of its subsidiaries of the whole or a part of this Permanent
Global Note, part is to be cancelled or (c) any redemption of the whole or
a part of this Permanent Global Note, the portion of the principal amount
of this Permanent Global Note so exchanged, cancelled or redeemed shall be
entered by or on behalf of the Fiscal Agent on Part II of the Schedule to
this Permanent Global Note, whereupon the principal amount of this
Permanent Global Note shall be reduced for all purposes by the amount so
exchanged, cancelled or redeemed and entered.
Upon (a) the exchange of the whole of this Permanent Global Note for
Definitive Notes or (b) any redemption of the whole of this Permanent
Global Note, this Permanent Global Note, shall be surrendered to or to the
order of the Fiscal Agent and cancelled and, if the Issuer so requests,
returned to it.
4. BENEFITS
Until the entire principal amount of this Permanent Global Note has been
extinguished in exchange for Definitive Notes or in any other manner
envisaged by the Conditions, this
29
Permanent Global Note shall in all respects be entitled to the same
benefits as the Definitive Notes referred to above.
5. PAYMENTS
Payments due in respect of Notes for the time being represented by this
Permanent Global Note shall be made to the bearer of this Permanent Global
Note.
Upon any payment in respect of the Notes represented by this Permanent
Global Note, the amount so paid shall be entered by or on behalf of the
Fiscal Agent on Part III of the Schedule to this Permanent Global Note. In
the case of any payment of principal the principal amount of this Permanent
Global Note shall be reduced for all purposes by the amount so paid and the
remaining principal amount of this Permanent Global Note shall be entered
by or on behalf of the Fiscal Agent on Part III of the Schedule to this
Permanent Global Note.
6. ACCOUNTHOLDERS
For so long as any of the Notes are represented by this Permanent Global
Note, each person who is for the time being shown in the records of
Euroclear and/or Clearstream, Luxembourg as the holder of a particular
principal amount of Notes (each an "Accountholder") shall be treated by the
Issuer as the holder of that principal amount for all purposes (including
but not limited to for the purposes of giving notice to the Issuer pursuant
to Condition 11) other than with respect to the payment of principal and
interest in respect of the Notes, the right to which shall be vested, as
against the Issuer, solely in the bearer of this Permanent Global Note in
accordance with and subject to its terms. Any certificate or other document
issued by Euroclear or Clearstream, Luxembourg as to the principal amount
of Notes standing to the account of any Accountholder shall be conclusive
and binding for all purposes.
Notes represented by this Permanent Global Note are transferable in
accordance with the rules and procedures for the time being of Euroclear or
Clearstream, Luxembourg as appropriate.
The Issuer covenants in favour of each Accountholder that it will make all
payments in respect of the principal amount of Notes for the time being
shown in the records of Euroclear and/or Clearstream, Luxembourg as being
held by the Accountholder and represented by this Permanent Global Note to
the bearer of this Permanent Global Note in accordance with clause 1 above
and acknowledges that each Accountholder may take proceedings to enforce
this covenant and any of the other rights which it has under the first
paragraph of this clause directly against the Issuer.
7. NOTICES
So long as any of the Notes are represented by this Permanent Global Note
and this Permanent Global Note is held on behalf of Euroclear or
Clearstream, Luxembourg, notices required to be given to Noteholders may be
given by their being delivered to Euroclear and/or Clearstream, Luxembourg,
as the case may be, for communication to Accountholders, rather than by
publication as required by the Conditions save that, so long as the Notes
are listed on any Stock Exchange, notices will also be published in
accordance with the requirements of any such Stock Exchange.
30
8. PRESCRIPTION
Claims against the Issuer in respect of principal and interest on the Notes
represented by this Global Note will be prescribed after 10 years (in the
case of principal) and five years (in the case of interest) from the
Relevant Date (as defined in Condition 7).
9. AUTHENTICATION
This Permanent Global Note shall not become valid or enforceable for any
purpose unless and until it has been authenticated by or on behalf of the
Fiscal Agent.
10. GOVERNING LAW
This Permanent Global Note is governed by, and shall be construed in
accordance with, the laws of the State of New York.
IN WITNESS whereof this Permanent Global Note has been executed as a deed poll
on behalf of the Issuer.
Executed as a deed by )
LIZ CLAIBORNE, INC. )
acting by: )
acting under the authority of that )
company in the presence of: )
Signature:
Name:
Address:
Dated 6th August, 2001
31
CERTIFICATE OF AUTHENTICATION
This is the Permanent Global Note
described in the Agency Agreement
By or on behalf of
CITIBANK, N.A. as Fiscal Agent
(without recourse, warranty or liability)
......................................
......................................
THIS PERMANENT GLOBAL NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"). NEITHER THIS
PERMANENT GLOBAL NOTE NOR ANY PORTION HEREOF MAY BE OFFERED OR SOLD WITHIN THE
UNITED STATES OR TO ANY U.S. PERSON UNLESS AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT IS AVAILABLE.
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.
IN ADDITION, THOSE LIMITATIONS MAY ALSO APPLY TO ANY OTHER BEARER WHO TAKES INTO
ACCOUNT GAIN OR LOSS WITH RESPECT TO THIS OBLIGATION IN DETERMINING SUCH
BEARER'S INCOME SUBJECT TO UNITED STATES FEDERAL INCOME TAX.
32
THE SCHEDULE
Part I
EXCHANGES OF THE TEMPORARY GLOBAL NOTE
The following exchanges of part of the Temporary Global Note for interests in
this Permanent Global Note have been made.
Part of aggregate
principal amount of
the Temporary Global Aggregate principal amount
Note exchanged for of Notes represented by
this Permanent Global this Permanent Global Note Notation made by or on behalf
Date of exchange Note following exchange of the Fiscal Agent
(euro) (euro)
__________________ _______________________ ____________________________ _____________________________
__________________ _______________________ ____________________________ _____________________________
__________________ _______________________ ____________________________ _____________________________
__________________ _______________________ ____________________________ _____________________________
__________________ _______________________ ____________________________ _____________________________
__________________ _______________________ ____________________________ _____________________________
__________________ _______________________ ____________________________ _____________________________
__________________ _______________________ ____________________________ _____________________________
__________________ _______________________ ____________________________ _____________________________
__________________ _______________________ ____________________________ _____________________________
__________________ _______________________ ____________________________ _____________________________
__________________ _______________________ ____________________________ _____________________________
__________________ _______________________ ____________________________ _____________________________
__________________ _______________________ ____________________________ _____________________________
__________________ _______________________ ____________________________ _____________________________
__________________ _______________________ ____________________________ _____________________________
__________________ _______________________ ____________________________ _____________________________
__________________ _______________________ ____________________________ _____________________________
__________________ _______________________ ____________________________ _____________________________
__________________ _______________________ ____________________________ _____________________________
33
Part II
CANCELLATIONS
The following exchanges of a part of this Permanent Global Note for Definitive
Notes and cancellations of a part of the aggregate principal amount of this
Permanent Global Note have been made:
Part of the aggregate Remaining principal
principal amount of this amount of this Permanent
Permanent Global Note Global Note following
cancelled, exchanged or such cancellation, Notation made by or on
Date of cancellation redeemed exchange or redemption behalf of the Fiscal Agent
(euro) (euro)
______________________ __________________________ __________________________ __________________________
______________________ __________________________ __________________________ __________________________
______________________ __________________________ __________________________ __________________________
______________________ __________________________ __________________________ __________________________
______________________ __________________________ __________________________ __________________________
______________________ __________________________ __________________________ __________________________
______________________ __________________________ __________________________ __________________________
______________________ __________________________ __________________________ __________________________
______________________ __________________________ __________________________ __________________________
______________________ __________________________ __________________________ __________________________
______________________ __________________________ __________________________ __________________________
______________________ __________________________ __________________________ __________________________
______________________ __________________________ __________________________ __________________________
______________________ __________________________ __________________________ __________________________
______________________ __________________________ __________________________ __________________________
______________________ __________________________ __________________________ __________________________
______________________ __________________________ __________________________ __________________________
______________________ __________________________ __________________________ __________________________
34
SCHEDULE 2
PART I
- FORM OF DEFINITIVE NOTE AND COUPON -
(Face of Note)
--------------------------------------------------------------------------------
000000 XS0133699412 00 00000
--------------------------------------------------------------------------------
LIZ CLAIBORNE, INC.
(incorporated with limited liability in the State of Delaware, U.S.A.)
(euro)350,000,000
6.625 per cent. Notes due 2006
The issue of the Notes was authorised by a resolution of the Board of Directors
of Liz Claiborne, Inc. (the "Issuer") passed on 15th May, 2001.
This Note forms one of a series of Notes issued as bearer Notes in the
denomination of (euro)1,000, (euro)10,000 and (euro)100,000 each in an aggregate
principal amount of (euro)350,000,000.
The Issuer for value received and subject to and in accordance with the
Conditions endorsed hereon hereby promises to pay to the bearer on 7th August,
2006 (or on such earlier date as the principal sum (as determined under the
Conditions) may become repayable under the said Conditions) the principal sum
of:
(euro)350,000,000 (three hundred and fifty million euro)
together with interest on the principal sum of (euro)350,000,000 at the rate of
6.625 per cent. per annum payable annually in arrear on 7th August and together
with such other amounts as may be payable, all subject to and under the
Conditions.
The Notes are issued pursuant to an Agency Agreement (the "Agency Agreement")
dated 6th August, 2001 between, inter alios, the Issuer and Citbank, N.A. as
Fiscal Agent. The Notes have the benefit of, and are subject to, the provisions
contained in the Agency Agreement, and the Conditions.
Neither this Note nor any of the Coupons relating to this Note shall become
valid or enforceable for any purpose unless and until this Note has been
authenticated by or on behalf of the Fiscal Agent.
35
IN WITNESS WHEREOF this Note and the Coupons relating to this Note have been
executed on behalf of the Issuer.
Dated as of 6th August, 2001
Issued in London, England.
LIZ CLAIBORNE, INC.
By:
-------------------------------------------
CERTIFICATE OF AUTHENTICATION
This is one of the Notes described
in the Agency Agreement.
For and on behalf of
CITIBANK, N.A. as Fiscal Agent
by its attorney [Authenticating Agent].
-------------------------------------------
THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S. SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"). NEITHER THIS NOTE NOR ANY PORTION
HEREOF MAY BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO ANY U.S. PERSON
UNLESS AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT IS
AVAILABLE.
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.
IN ADDITION, THOSE LIMITATIONS MAY ALSO APPLY TO ANY OTHER BEARER WHO TAKES INTO
ACCOUNT GAIN OR LOSS WITH RESPECT TO THIS OBLIGATION IN DETERMINING SUCH
BEARER'S INCOME SUBJECT TO UNITED STATES FEDERAL INCOME TAX.
36
(Reverse of Note)
CONDITIONS OF THE NOTES
(as set out in Part II of this Schedule 2)
FISCAL AND PRINCIPAL PAYING AGENT
CITIBANK, N.A.
0 XXXXXXXXX XXXXXX
Xxxxxx XX0X 0XX
OTHER PAYING AGENT
DEXIA BANQUE INTERNATIONALE A LUXEMBOURG
00 XXXXX X'XXXX
X-0000 XXXXXXXXXX
and/or such other or further Fiscal Agent or Paying Agents and/or specified
offices as may from time to time be appointed by the Issuer and notice of which
has been given to the Noteholders.
37
- FORM OF COUPON -
(Face of Coupon)
LIZ CLAIBORNE, INC.
(euro)350,000,000 6.625 per cent. Notes due 2006
This Coupon relating to a Note
Payable in the denomination Coupon for
of (euro)[1,000/10,000/100,000] (euro)[66.25/662.50/6,625.00]
is payable to bearer, separately due on
negotiable and subject to the 7th August, 200[2/3/4/5/6]
Conditions of the Notes
LIZ CLAIBORNE, INC.
By: ................
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.
IN ADDITION, THOSE LIMITATIONS MAY ALSO APPLY TO ANY OTHER BEARER WHO TAKES INTO
ACCOUNT GAIN OR LOSS WITH RESPECT TO THIS OBLIGATION IN DETERMINING SUCH
BEARER'S INCOME SUBJECT TO UNITED STATES FEDERAL INCOME TAX.
00 000000 XS0133699412 000000
(Reverse of Coupon)
FISCAL AND PRINCIPAL PAYING AGENT:
CITIBANK, N.A.
0 XXXXXXXXX XXXXXX
XXXXXX XX0X 0XX
OTHER PAYING AGENT:
DEXIA BANQUE INTERNATIONALE A
LUXEMBOURG
00 XXXXX X'XXXX
X-0000 XXXXXXXXXX
38
SCHEDULE 2
PART II
CONDITIONS OF THE NOTES
39
40
41
42
43
44
45
46
47
48
49
50
51
52
SCHEDULE 3
- PROVISIONS FOR MEETINGS OF NOTEHOLDERS -
1. As used in this schedule the following expressions shall have the following
meanings unless the context otherwise requires:
(a) "Voting Certificate" shall mean an English language certificate issued
by a Paying Agent and dated in which it is stated:
(i) that on the date of the Voting Certificate Notes (not being Notes
in respect of which a Block Voting Instruction has been issued
and is outstanding in respect of the meeting specified in the
Voting Certificate and any adjourned meeting) were deposited with
the Paying Agent or (to the satisfaction of the Paying Agent)
were held to its order or under its control and that the Notes
will not cease to be so deposited or held until the first to
occur of:
(A) the conclusion of the meeting specified in the Voting
Certificate or, if applicable, any adjourned meeting; and
(B) the surrender of the Voting Certificate to the Paying Agent
who issued the same; and
(ii) that the bearer of the Voting Certificate is entitled to attend
and vote at the meeting and any adjourned meeting in respect of
the Notes represented by the Voting Certificate;
(b) "Block Voting Instruction" shall mean an English language document
issued by a Paying Agent and dated in which:
(i) it is certified that Notes (not being Notes in respect of which a
Voting Certificate has been issued and is outstanding in respect
of the meeting specified in the Block Voting Instruction and any
adjourned meeting) have been deposited with the Paying Agent or
(to the satisfaction of the Paying Agent) were held to its order
or under its control and that the Notes will not cease to be so
deposited or held until the first to occur of:
(A) the conclusion of the meeting specified in the Block Voting
Instruction or, if applicable, any adjourned meeting; and
(B) the surrender to the Paying Agent not less than 48 hours
before the time for which the meeting or any adjourned
meeting is convened of the receipt issued by the Paying
Agent in respect of each deposited Note which is to be
released or (as the case may require) the Note ceasing with
the agreement of the Paying Agent to be held to its order or
under its control and the giving of notice by the Paying
Agent to the Issuer under paragraph 17 of the necessary
amendment to the Block Voting Instruction;
(ii) it is certified that each holder of the Notes has instructed the
Paying Agent that the vote(s) attributable to the Notes so
deposited or held should be cast in a particular way in relation
to the resolution to be put to the meeting or any adjourned
meeting and that all the instructions are, during the period
commencing 48 hours before the time for which the meeting
53
or any adjourned meeting is convened and ending at the conclusion
or adjournment, neither revocable nor capable of amendment;
(iii)the total number, total principal amount and the serial numbers
(if available) of the Notes so deposited or held are listed
distinguishing, with regard to each resolution, between those in
respect of which instructions have been correctly given that the
attributable votes should be cast in favour of the resolution and
those in respect of which instructions have been so given that
the attributable votes should be cast against the resolution; and
(iv) one or more persons named in the Block Voting Instruction (a
"proxy") is or are authorised and instructed by the Paying Agent
to cast the votes attributable to the Notes so listed in
accordance with the instructions referred to in subparagraph
(iii) as set out in the Block Voting Instruction.
The holder of any Voting Certificate or the proxies named in any Block
Voting Instruction shall for all purposes in connection with the relevant
meeting or adjourned meeting of Noteholders be deemed to be the holder of
the Notes to which the Voting Certificate or Block Voting Instruction
relates and the Paying Agent with which the Notes have been deposited or
the person holding the same to the order or under the control of the Paying
Agent shall be deemed for such purposes not to be the holder of those
Notes.
2. The Issuer may at any time and the Issuer shall upon a requisition in
writing signed by the holders of not less than one-tenth in principal
amount of the Notes for the time being outstanding convene a meeting of the
Noteholders and if the Issuer makes default for a period of seven days in
convening a meeting the same may be convened by the requisitionists. Every
meeting shall be held at such place as the Fiscal Agent may reasonably
approve.
3. At least 21 days' notice (exclusive of the day on which the notice is given
and the day on which the meeting is held) specifying the place, day and
hour of meeting shall be given to the Noteholders before any meeting of the
Noteholders in the manner provided by Condition 11. The notice shall state
generally the nature of the business to be transacted at the meeting but
(except for an Extraordinary Resolution) it shall not be necessary to
specify in the notice the terms of any resolution to be proposed. Such
notice shall include a statement to the effect that Notes may be deposited
with Paying Agents for the purpose of obtaining Voting Certificates or
appointing proxies. A copy of the notice shall be sent by post to the
Issuer (unless the meeting is convened by the Issuer).
4. Some person (who may but need not be a Noteholder) nominated in writing by
the Issuer shall be entitled to take the chair at every meeting but if no
nomination is made or if at any meeting the person nominated shall not be
present within fifteen minutes after the time appointed for holding the
meeting the Noteholders present shall choose one of their number to be
Chairman.
5. At any meeting one or more persons present holding Notes or Voting
Certificates or being proxies and holding or representing in the aggregate
not less than one-twentieth of the principal amount of the Notes for the
time being outstanding shall (except for the purpose of passing an
Extraordinary Resolution) form a quorum for the transaction of business and
no business (other than the choosing of a Chairman) shall be transacted at
any meeting unless the requisite quorum be present at the commencement of
business. The quorum at any meeting for passing an Extraordinary Resolution
shall (subject as provided below) be one or more persons present holding
Notes or Voting Certificates or being proxies and holding or representing
in the aggregate more than 50 per cent. in principal amount of the Notes
for the time being outstanding, provided that at any meeting the business
of which includes any of
54
the following matters (each of which shall only be capable of being
effected after having been approved by Extraordinary Resolution) namely:
(a) modification of the date fixed for final maturity of the Notes or
reduction of the amount of principal payable;
(b) reduction or cancellation of the principal payable on the Notes;
(c) reduction of the amount payable or, where applicable, modification of
the method of calculating the amount payable or modification of the
date of payment in respect of any interest;
(d) alteration of the currency in which payments under the Notes and
Coupons are to be made;
(e) alteration of the majority required to pass an Extraordinary
Resolution;
(f) the sanctioning of any scheme or proposal as is described in paragraph
18(f);
(g) alteration of this proviso or the proviso to paragraph 6;
the quorum shall be one or more persons present holding Notes or Voting
Certificates or being proxies and holding or representing in the aggregate
more than 50 per cent. in principal amount of the Notes for the time being
outstanding.
6. If within fifteen minutes after the time appointed for any meeting a quorum
is not present the meeting shall if convened upon the requisition of
Noteholders be dissolved. In any other case it shall stand adjourned to the
same day in the next week (or if the day is a public holiday the next
succeeding business day) at the same time and place (except in the case of
a meeting at which an Extraordinary Resolution is to be proposed in which
case it shall stand adjourned for the period being not less than 14 days
nor more than 42 days, and at such place as may be appointed by the
Chairman and reasonably approved by the Fiscal Agent) and at the adjourned
meeting one or more persons present holding Notes or Voting Certificates or
being proxies (whatever the principal amount of the Notes so held or
represented by them) shall (subject as provided below) form a quorum and
shall (subject as provided below) have power to pass any Extraordinary
Resolution or other resolution and to decide upon all matters which could
properly have been dealt with at the meeting from which the adjournment
took place had the requisite quorum been present, provided that at any
adjourned meeting the business of which includes any of the matters
specified in the proviso to paragraph 5, the quorum shall be one or more
persons present holding Notes or Voting Certificates or being proxies and
holding or representing in the aggregate not less than one quarter of the
principal amount of the Notes for the time being outstanding.
7. Notice of any adjourned meeting at which an Extraordinary Resolution is to
be submitted shall be given in the same manner as notice of an original
meeting but as if 10 were substituted for 21 in paragraph 3 and the notice
shall (except in cases where the proviso to paragraph 6 shall apply when it
shall state the relevant quorum) state that the persons present holding
Notes or Voting Certificates or being proxies at the adjourned meeting
whatever the principal amount of the Notes held or represented by them will
form a quorum. Subject as provided above it shall not be necessary to give
any notice of an adjourned meeting.
8. Every question submitted to a meeting shall be decided in the first
instance by a show of hands and in case of equality of votes the Chairman
shall both on a show of hands and on a poll have a casting vote in addition
to any votes to which he may be entitled as a Noteholder or as a holder of
a Voting Certificate or as a proxy.
55
9. At any meeting unless a poll is (before or on the declaration of the result
of the show of hands) demanded by the Chairman or the Issuer or by one or
more persons present holding Notes or Voting Certificates or being proxies
and holding or representing in the aggregate not less than one-fiftieth of
the principal amount of the Notes for the time being outstanding a
declaration by the Chairman that a resolution has been carried or carried
by a particular majority or lost or not carried by a particular majority
shall be conclusive evidence of the fact without proof of the number or
proportion of the votes recorded in favour of or against the resolution.
10. Subject to paragraph 12, if at any meeting a poll is demanded it shall be
taken in such manner and, subject as provided below, either at once or
after an adjournment, as the Chairman may direct and the result of the poll
shall be deemed to be the resolution of the meeting at which the poll was
demanded as at the date of the taking of the poll. The demand for a poll
shall not prevent the continuance of the meeting for the transaction of any
business other than the motion on which the poll has been demanded.
11. The Chairman may with the consent of (and shall if directed by) any meeting
adjourn the same from time to time and from place to place but no business
shall be transacted at any adjourned meeting except business which might
lawfully (but for lack of required quorum) have been transacted at the
meeting from which the adjournment took place.
12. Any poll demanded at any meeting on the election of a Chairman or on any
question of adjournment shall be taken at the meeting without adjournment.
13. Any director or officer of the Issuer and the lawyers and financial
advisers of either of them may attend and speak at any meeting. Save as
provided above but without prejudice to the proviso to the definition of
"outstanding" in clause 2 no person shall be entitled to attend and speak
nor shall any person be entitled to vote at any meeting of the Noteholders
or join with others in requesting the convening of a meeting unless he
either produces the Note of which he is the holder or a Voting Certificate
or is a proxy. Neither the Issuer, nor any of its subsidiaries shall be
entitled to vote at any meeting in respect of Notes held by it for the
benefit of any such company. Nothing contained in this Agreement shall
prevent any of the proxies named in any Block Voting Instruction from being
a director, officer of or otherwise connected with the Issuer.
14. Subject as provided in paragraph 13 at any meeting:
(a) on a show of hands every person who is present in person and produces
a Note or Voting Certificate or is a proxy shall have one vote; and
(b) on a poll every person who is so present shall have one vote in
respect of each (euro)1,000 in principal amount of the Notes so
produced or represented by the Voting Certificate so produced or in
respect of which he is a proxy or in respect of which he is the
Noteholder.
Without prejudice to the obligations of the proxies named in any Block
Voting Instruction any person entitled to more than one vote need not use
all his votes or cast all the votes to which he is entitled in the same
way.
15. The proxies named in any Block Voting Instruction need not be Noteholders.
16. Each Block Voting Instruction together (if so requested by the Issuer) with
reasonable proof satisfactory to the Issuer of its due execution on behalf
of the relevant Paying Agent shall be deposited at such place as the Fiscal
Agent shall approve not less than 24 hours before the
56
time appointed for holding the meeting or adjourned meeting at which the
proxies named in the Block Voting Instruction propose to vote and in
default the Block Voting Instruction shall not be treated as valid unless
the Chairman of the meeting decides otherwise before the meeting or
adjourned meeting proceeds to business. A notarially certified copy of each
Block Voting Instruction shall (if so requested by the Issuer) be deposited
with the Fiscal Agent before the commencement of the meeting or adjourned
meeting but the Fiscal Agent shall not be obliged to investigate or be
concerned with the validity of or the authority of the proxies named in any
Block Voting Instruction.
17. Any vote given in accordance with the terms of a Block Voting Instruction
shall be valid notwithstanding the previous revocation or amendment of the
Block Voting Instruction or of any of the Noteholders' instructions
pursuant to which it was executed, provided that no intimation in writing
of the revocation or amendment shall have been received from the relevant
Paying Agent by the Issuer at its registered office (or such other place as
may have been reasonably approved by the Fiscal Agent for the purpose) by
the time being 24 hours before the time appointed for holding the meeting
or adjourned meeting at which the Block Voting Instruction is to be used.
18. A meeting of the Noteholders shall in addition to the powers provided above
have the following powers exercisable by Extraordinary Resolution (subject
to the provisions relating to quorum contained in paragraphs 5 and 6) only
namely:
(a) power to sanction any compromise or arrangement proposed to be made
between the Issuer, and the Noteholders and Couponholders or any of
them;
(b) power to sanction any abrogation, modification, compromise or
arrangement in respect of the rights of the Noteholders and
Couponholders against the Issuer or against any of its property
whether the rights shall arise hereunder or otherwise;
(c) power to assent to any modification of the provisions contained in the
Conditions, the Notes or the Coupons which shall be proposed by the
Issuer, or any Noteholder;
(d) power to give any authority or sanction which under the Notes or
hereunder is required to be given by Extraordinary Resolution;
(e) power to appoint any persons (whether Noteholders or not) as a
committee to represent the interests of the Noteholders and to confer
upon the committee any powers or discretions which the Noteholders
could themselves exercise by Extraordinary Resolution; and
(f) power to sanction any scheme or proposal for the exchange or sale of
the Notes for or the conversion of the Notes into or the cancellation
of the Notes in consideration of shares, stock, notes, bonds,
debentures, debenture stock and/or other obligations and/or securities
of the Issuer or any other company formed or to be formed, or for or
into or in consideration of cash, or partly for or into or in
consideration of the shares, stock, notes, bonds, debentures,
debenture stock and/or other obligations and/or securities as provided
above and partly for or into or in consideration of cash.
19. Any resolution passed at a meeting of the Noteholders duly convened and
held hereunder shall be binding upon all the Noteholders whether present or
not present at the meeting and whether or not voting and upon all
Couponholders and each of them shall be bound to give effect to the
resolution accordingly and the passing of any resolution shall be
conclusive evidence that the circumstances justify the passing of the
resolution. Notice of any resolution duly passed by the Noteholders shall
be published under Condition 11 by the Issuer within
57
14 days of the passing of the resolution, provided that the non-publication
of the notice shall not invalidate the resolution.
20. The expression "Extraordinary Resolution" when used in this Schedule and in
the Conditions means a resolution passed at a meeting of the Noteholders
duly convened and held in accordance with the provisions contained in this
Agreement by a majority consisting of not less than two-thirds of the
persons voting thereat upon a show of hands or if a poll shall be duly
demanded then by a majority consisting of not less than two-thirds of the
votes given on the poll.
21. Minutes of all resolutions and proceedings at every meeting shall be made
and duly entered in books to be from time to time provided for that purpose
by the Issuer and any Minutes purporting to be signed by the Chairman of
the meeting at which the resolutions were passed or proceedings had shall
be conclusive evidence of the matters contained in the Minutes and until
the contrary is proved every meeting in respect of the proceedings of which
Minutes have been made shall be deemed to have been duly held and convened
and all resolutions passed or proceedings had to have been duly passed or
had.
58
LIZ CLAIBORNE, INC.
By: /s/ Xxxxxxx Xxxxxx
CITIBANK, N.A.
By: /s/ Xxxxx Xxxxx
DEXIA BANQUE INTERNATIONALE A LUXEMBOURG
By: /s/ Xxxxx Xxxxx
Note
Without prejudice to the foregoing execution of the Agreement by the parties to
this Agreement, Dexia Banque Internationale a Luxembourg expressly and
specifically confirms its agreement with the provisions of clause 28 of this
Agreement for the purposes of Article 1 of the Protocol annexed to the
Convention on jurisdiction and the enforcement of judgments in civil and
commercial matters signed at Brussels on 27th September, 1968.
By:
ICM:515297.7
Dated 6th August, 2001
LIZ CLAIBORNE, INC.
(euro)350,000,000
6.625 per cent. Notes due 2006
------------------------------
AGENCY AGREEMENT
------------------------------
XXXXX & XXXXX
London
INDEX
Clause Page No.
1. Interpretation........................................................1
2. Definitions...........................................................1
3. Appointment of Paying Agents..........................................3
4. Delivery of Notes.....................................................3
5. Payment to the Fiscal Agent...........................................4
6. Notification of Non-Payment by the Issuer.............................4
7. Duties of the Paying Agents...........................................4
8. Reimbursement of the Paying Agents....................................5
9. Notice of any Withholding or Deduction................................5
10. Duties of the Fiscal Agent in connection with Optional Redemption
and Redemption for Taxation Reasons...................................5
11. Publication of Notices................................................5
12. Cancellation of Notes and Coupons.....................................5
13. Issue of Replacement Notes and Coupons................................6
14. Records and Certificates..............................................7
15. Copies of this Agreement Available for Inspection.....................8
16. Commissions, Fees and Expenses........................................8
17. Indemnity.............................................................8
18. Repayment by Fiscal Agent.............................................9
19. Conditions of Appointment.............................................9
20. Communication with Agents............................................10
21. Termination of Appointment...........................................10
22. Meetings of Noteholders..............................................12
23. Notices..............................................................12
24. Taxes................................................................14
25. Counterparts.........................................................14
26. Descriptive Headings.................................................14
27. Governing Law and Submission to Jurisdiction.........................14
28. Amendments...........................................................15
Schedules
1. Part I - Form of Temporary Global Note...............................16
Part II - Form of the Permanent Global Note..........................27
2. Part I - Form of Definitive Note and Coupon..........................34
Part II - Conditions of the Notes....................................38
4. Provisions for Meetings of Noteholders...............................52
