Exhibit 4.2


 




 





 


WATERFORD WEDGWOOD PLC


 


as the issuer,


 


THE GUARANTORS


 


named herein,


 


THE BANK OF NEW YORK, LONDON


 


as Trustee, Registrar, Transfer Agent and


Principal Paying Agent,


 


KREDIETBANK S.A. LUXEMBOURGEOISE


 


as Luxembourg Paying Agent and Transfer Agent


 


-and-


 


The entities from time to time that are Additional Guarantors


 












 


MEZZANINE INDENTURE


 


Dated as of December 1, 2003


 












 


€166,028,000
97/8  % Mezzanine Notes due 2010


 




 





 

















 


TABLE OF CONTENTS


 


	
  ARTICLE
  I

  
	
   

  	
   

  
	
  DEFINITIONS AND INCORPORATION BY REFERENCE

  
	
   

  	
   

  	
   

  
	
  SECTION
  1.1.

  	
  Definitions

  	
   

  
	
  SECTION
  1.2.

  	
  Rules
  of Construction

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  II

  
	
   

  	
   

  
	
  THE
  NOTES

  
	
   

  	
   

  
	
  SECTION
  2.1.

  	
  Form
  and Dating

  	
   

  
	
  SECTION
  2.2.

  	
  Execution
  and Authentication

  	
   

  
	
  SECTION
  2.3.

  	
  Registrar
  and Paying Agent

  	
   

  
	
  SECTION
  2.4.

  	
  Paying
  Agent To Hold Assets in Trust

  	
   

  
	
  SECTION
  2.5.

  	
  List
  of Holders

  	
   

  
	
  SECTION
  2.6.

  	
  Book-Entry
  Provisions for Global Notes

  	
   

  
	
  SECTION
  2.7.

  	
  Registration
  of Transfer and Exchange

  	
   

  
	
  SECTION
  2.8.

  	
  Replacement
  Notes

  	
   

  
	
  SECTION
  2.9.

  	
  Outstanding
  Notes

  	
   

  
	
  SECTION
  2.10.

  	
  Treasury
  Notes

  	
   

  
	
  SECTION
  2.11.

  	
  Temporary
  Notes

  	
   

  
	
  SECTION
  2.12.

  	
  Cancellation

  	
   

  
	
  SECTION
  2.13.

  	
  Defaulted
  Interest

  	
   

  
	
  SECTION
  2.14.

  	
  CUSIP,
  ISIN and Common Code Numbers

  	
   

  
	
  SECTION
  2.15.

  	
  Deposit
  of Moneys

  	
   

  
	
  SECTION
  2.16.

  	
  Certain
  Matters Relating to Global Notes

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  III

  
	
   

  	
   

  
	
  REDEMPTION

  
	
   

  	
   

  
	
  SECTION
  3.1.

  	
  Special
  Mandatory Redemption; Notice

  	
   

  
	
  SECTION
  3.2.

  	
  Optional
  Redemption

  	
   

  
	
  SECTION
  3.3.

  	
  Notices
  to Trustee

  	
   

  
	
  SECTION
  3.4.

  	
  Selection
  of Notes to Be Redeemed

  	
   

  
	
  SECTION
  3.5.

  	
  Notice
  of Redemption

  	
   

  
	
  SECTION
  3.6.

  	
  Effect
  of Notice of Redemption

  	
   

  
	
  SECTION
  3.7.

  	
  Deposit
  of Redemption Price

  	
   

  
	
  SECTION
  3.8.

  	
  Notes
  Redeemed in Part

  	
   

  



 


i

















 


	
  ARTICLE
  IV

  
	
   

  	
   

  
	
  COVENANTS

  
	
   

  	
   

  
	
  SECTION
  4.1.

  	
  Payment
  of Notes

  	
   

  
	
  SECTION
  4.2.

  	
  Maintenance
  of Office or Agency

  	
   

  
	
  SECTION
  4.3.

  	
  Limitation
  on Incurrence of Additional Indebtedness

  	
   

  
	
  SECTION
  4.4.

  	
  Limitation
  on Layering

  	
   

  
	
  SECTION
  4.5.

  	
  Limitation
  on Restricted Payments

  	
   

  
	
  SECTION
  4.6.

  	
  Limitation
  on Asset Sales

  	
   

  
	
  SECTION
  4.7.

  	
  Limitation
  on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries

  	
   

  
	
  SECTION
  4.8.

  	
  Limitation
  on Preferred Stock of Restricted Subsidiaries

  	
   

  
	
  SECTION
  4.9.

  	
  Limitation
  on Liens

  	
   

  
	
  SECTION
  4.10.

  	
  Limitation
  on Sale and Leaseback Transactions

  	
   

  
	
  SECTION
  4.11.

  	
  Limitations
  on Transactions with Affiliates

  	
   

  
	
  SECTION
  4.12.

  	
  Limitation
  of Guarantees by Restricted Subsidiaries

  	
   

  
	
  SECTION
  4.13.

  	
  Conduct
  of Business

  	
   

  
	
  SECTION
  4.14.

  	
  Reports
  to Holders

  	
   

  
	
  SECTION
  4.15.

  	
  Change
  of Control

  	
   

  
	
  SECTION
  4.16.

  	
  Additional
  Amounts

  	
   

  
	
  SECTION
  4.17.

  	
  Corporate
  Existence

  	
   

  
	
  SECTION
  4.18.

  	
  Investment
  Company Status

  	
   

  
	
  SECTION
  4.19.

  	
  Compliance
  Certificate; Notice of Default

  	
   

  
	
   

  	
   

  
	
  ARTICLE
  V

  
	
   

  	
   

  
	
  SUCCESSOR CORPORATION

  
	
   

  	
   

  
	
  SECTION
  5.1.

  	
  Merger,
  Consolidation and Sale of Assets

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  VI

  
	
   

  	
   

  
	
  DEFAULT AND REMEDIES

  
	
   

  	
   

  
	
  SECTION
  6.1.

  	
  Events
  of Default

  	
   

  
	
  SECTION
  6.2.

  	
  Acceleration

  	
   

  
	
  SECTION
  6.3.

  	
  Other
  Remedies

  	
   

  
	
  SECTION
  6.4.

  	
  The
  Trustee May Enforce Claims Without Possession of Securities

  	
   

  
	
  SECTION
  6.5.

  	
  Rights
  and Remedies Cumulative

  	
   

  
	
  SECTION
  6.6.

  	
  Delay
  or Omission Not Waiver

  	
   

  
	
  SECTION
  6.7.

  	
  Waiver
  of Past Defaults

  	
   

  
	
  SECTION
  6.8.

  	
  Control
  by Majority

  	
   

  
	
  SECTION
  6.9.

  	
  Limitation
  on Suits

  	
   

  
	
  SECTION
  6.10.

  	
  Rights
  of Holders to Receive Payment

  	
   

  
	
  SECTION
  6.11.

  	
  Collection
  Suit by Trustee

  	
   

  



 


ii

















 


	
  SECTION
  6.12.

  	
  Trustee
  May File Proofs of Claim

  	
   

  
	
  SECTION
  6.13.

  	
  Priorities

  	
   

  
	
  SECTION
  6.14.

  	
  Restoration
  of Rights and Remedies

  	
   

  
	
  SECTION
  6.15.

  	
  Undertaking
  for Costs

  	
   

  
	
   

  	
   

  
	
  ARTICLE
  VII

  
	
   

  	
   

  
	
  TRUSTEE

  
	
   

  	
   

  
	
  SECTION
  7.1.

  	
  Duties
  of Trustee

  	
   

  
	
  SECTION
  7.2.

  	
  Rights
  of Trustee

  	
   

  
	
  SECTION
  7.3.

  	
  Individual
  Rights of Trustee

  	
   

  
	
  SECTION
  7.4.

  	
  Trustee’s
  Disclaimer

  	
   

  
	
  SECTION
  7.5.

  	
  Notice
  of Default

  	
   

  
	
  SECTION
  7.6.

  	
  Compensation
  and Indemnity

  	
   

  
	
  SECTION
  7.7.

  	
  Replacement
  of Trustee

  	
   

  
	
  SECTION
  7.8.

  	
  Successor
  Trustee by Merger, etc.

  	
   

  
	
  SECTION
  7.9.

  	
  Corporate
  Trustee Required; Eligibility

  	
   

  
	
  SECTION
  7.10.

  	
  Disqualification;
  Conflicting Interests

  	
   

  
	
  SECTION
  7.11.

  	
  Preferential
  Collection of Claims Against the Company

  	
   

  
	
  SECTION
  7.12.

  	
  Force
  Majeure

  	
   

  
	
   

  	
   

  
	
  ARTICLE
  VIII

  
	
   

  	
   

  
	
  DEFEASANCE AND SATISFACTION AND DISCHARGE
  OF INDENTURE

  
	
   

  	
   

  
	
  SECTION
  8.1.

  	
  Option
  to Effect Legal Defeasance or Covenant Defeasance

  	
   

  
	
  SECTION
  8.2.

  	
  Legal
  Defeasance and Discharge

  	
   

  
	
  SECTION
  8.3.

  	
  Covenant
  Defeasance

  	
   

  
	
  SECTION
  8.4.

  	
  Conditions
  to Legal or Covenant Defeasance

  	
   

  
	
  SECTION
  8.5.

  	
  Satisfaction
  and Discharge of Indenture

  	
   

  
	
  SECTION
  8.6.

  	
  Application
  of Trust Moneys

  	
   

  
	
  SECTION
  8.7.

  	
  Repayment
  to the Company; Unclaimed Money

  	
   

  
	
  SECTION
  8.8.

  	
  Reinstatement

  	
   

  
	
   

  	
   

  
	
  ARTICLE
  IX

  
	
   

  	
   

  
	
  AMENDMENTS,
  SUPPLEMENTS AND WAIVERS

  
	
   

  	
   

  
	
  SECTION
  9.1.

  	
  Without
  Consent of Holders of Notes

  	
   

  
	
  SECTION
  9.2.

  	
  With
  Consent of Holders of Notes

  	
   

  
	
  SECTION
  9.3.

  	
  Revocation
  and Effect of Consents

  	
   

  
	
  SECTION
  9.4.

  	
  Notation
  on or Exchange of Notes

  	
   

  
	
  SECTION
  9.5.

  	
  Trustee
  to Sign Amendments, etc

  	
   

  



 


iii

















 


	
  ARTICLE
  X

  
	
   

  	
   

  
	
  SUBORDINATION OF THE NOTES

  
	
   

  	
   

  
	
  SECTION
  10.1.

  	
  Agreement
  To Subordinate

  	
   

  
	
  SECTION
  10.2.

  	
  Standstill

  	
   

  
	
  SECTION
  10.3.

  	
  Liquidation,
  Dissolution, Bankruptcy

  	
   

  
	
  SECTION
  10.4.

  	
  Turnover

  	
   

  
	
  SECTION
  10.5.

  	
  Payment
  Blockage

  	
   

  
	
  SECTION
  10.6.

  	
  Subrogation

  	
   

  
	
  SECTION
  10.7.

  	
  Acceleration
  of Payment of Securities

  	
   

  
	
  SECTION
  10.8.

  	
  Relative
  Rights

  	
   

  
	
  SECTION
  10.9.

  	
  Subordination
  May Not Be Impaired by the Company

  	
   

  
	
  SECTION 10.10.

  	
  Rights of Trustee and Paying Agent

  	
   

  
	
  SECTION 10.11.

  	
  Article X Not To Prevent Events of Default or Limit Right To
  Accelerate

  	
   

  
	
  SECTION 10.12.

  	
  Trust Moneys Not Subordinated

  	
   

  
	
  SECTION 10.13.

  	
  Trustee Entitled To Rely

  	
   

  
	
  SECTION 10.14.

  	
  Trustee To Effectuate Subordination

  	
   

  
	
  SECTION 10.15.

  	
  Trustee Not Fiduciary for Holders of Senior Debt

  	
   

  
	
  SECTION 10.16.

  	
  Reliance by Holders of Senior Debt on Subordination Provisions

  	
   

  
	
   

  	
   

  
	
  ARTICLE
  XI

  
	
   

  	
   

  
	
  GUARANTEES

  
	
   

  	
   

  
	
  SECTION
  11.1.

  	
  Additional
  Guarantors

  	
   

  
	
  SECTION
  11.2.

  	
  Guarantees

  	
   

  
	
  SECTION
  11.3.

  	
  Limitation
  on Liability

  	
   

  
	
  SECTION
  11.4.

  	
  No
  Subrogation

  	
   

  
	
  SECTION
  11.5.

  	
  Release

  	
   

  
	
   

  	
   

  
	
  ARTICLE
  XII

  
	
   

  	
   

  
	
  SUBORDINATION OF GUARANTEES

  
	
   

  	
   

  
	
  SECTION
  12.1.

  	
  Agreement
  To Subordinate

  	
   

  
	
  SECTION
  12.2.

  	
  Standstill

  	
   

  
	
  SECTION
  12.3.

  	
  Liquidation,
  Dissolution, Bankruptcy

  	
   

  
	
  SECTION
  12.4.

  	
  Turnover

  	
   

  
	
  SECTION
  12.5.

  	
  Payment
  Blockage

  	
   

  
	
  SECTION
  12.6.

  	
  Subrogation

  	
   

  
	
  SECTION
  12.7.

  	
  [Reserved]

  	
   

  
	
  SECTION
  12.8.

  	
  Relative
  Rights

  	
   

  
	
  SECTION
  12.9.

  	
  Subordination
  May Not Be Impaired by the Guarantors

  	
   

  
	
  SECTION
  12.10.

  	
  Rights
  of Trustee and Paying Agent

  	
   

  



 


iv

















 


	
  SECTION 12.11.

  	
  Articles XI and XII Not To Prevent Events of Default or Limit Right
  To Accelerate

  	
   

  
	
  SECTION 12.12.

  	
  Trust Moneys Not Subordinated

  	
   

  
	
  SECTION 12.13.

  	
  Trustee Entitled To Rely

  	
   

  
	
  SECTION 12.14.

  	
  Trustee To Effectuate Subordination

  	
   

  
	
  SECTION 12.15.

  	
  Trustee Not Fiduciary for Holders of Senior Debt of the Guarantors

  	
   

  
	
  SECTION 12.16.

  	
  Reliance by Holders of Senior Debt of the Guarantors on Subordination
  Provisions

  	
   

  
	
   

  	
   

  
	
  ARTICLE
  XIII

  
	
   

  	
   

  
	
  SECURITY DOCUMENTS AND COLLATERAL

  
	
   

  	
   

  
	
  SECTION
  13.1.

  	
  Security
  Documents

  	
   

  
	
  SECTION
  13.2.

  	
  Recordings
  and Opinions

  	
   

  
	
  SECTION
  13.3.

  	
  Possession,
  Use and Release of Collateral

  	
   

  
	
  SECTION
  13.4.

  	
  Suits
  To Protect Collateral

  	
   

  
	
  SECTION
  13.5.

  	
  Purchasers
  Protected

  	
   

  
	
  SECTION
  13.6.

  	
  Powers
  Exercisable by Receiver or Trustee

  	
   

  
	
  SECTION
  13.7.

  	
  Determinations
  Relating to Collateral

  	
   

  
	
  SECTION
  13.8.

  	
  Certificates
  of the Company and the Guarantors

  	
   

  
	
  SECTION
  13.9.

  	
  Termination
  of Security Interest

  	
   

  
	
  SECTION
  13.10.

  	
  Reinstatement
  of First Priority Parties

  	
   

  
	
   

  	
   

  
	
  ARTICLE
  XIV

  
	
   

  	
   

  
	
  MISCELLANEOUS

  
	
   

  	
   

  
	
  SECTION
  14.1.

  	
  Notices

  	
   

  
	
  SECTION
  14.2.

  	
  Communications
  by Holders with Other Holders

  	
   

  
	
  SECTION
  14.3.

  	
  Certificate
  and Opinion as to Conditions Precedent

  	
   

  
	
  SECTION
  14.4.

  	
  Statements
  Required in Certificate or Opinion

  	
   

  
	
  SECTION
  14.5.

  	
  Rules
  by Trustee, Paying Agent (Including Principal Paying Agent), Registrar

  	
   

  
	
  SECTION
  14.6.

  	
  Legal
  Holidays

  	
   

  
	
  SECTION
  14.7.

  	
  Governing
  Law

  	
   

  
	
  SECTION
  14.8.

  	
  Submission
  to Jurisdiction; Appointment of Agent for Service

  	
   

  
	
  SECTION
  14.9.

  	
  Acts
  of Holders

  	
   

  
	
  SECTION
  14.10.

  	
  No
  Personal Liability of Directors, Officers and Others

  	
   

  
	
  SECTION
  14.11.

  	
  Currency
  Indemnity

  	
   

  
	
  SECTION
  14.12.

  	
  Currency
  Calculation

  	
   

  
	
  SECTION
  14.13.

  	
  Information

  	
   

  
	
  SECTION
  14.14.

  	
  Successors

  	
   

  
	
  SECTION
  14.15.

  	
  Counterpart
  Originals

  	
   

  
	
  SECTION
  14.16.

  	
  Severability

  	
   

  



 


v

















 


	
  SECTION
  14.17.

  	
  Table
  of Contents, Headings, etc.

  	
   

  
	
  SECTION
  14.18.

  	
  Prescription

  	
   

  
	
  SECTION
  14.19.

  	
  Benefits
  of Indenture

  	
   

  
	
  SECTION
  14.20.

  	
  Waiver
  of Jury Trial

  	
   

  



 


 


	
  EXHIBITS

  	
   

  
	
   

  	
   

  
	
  Exhibit A -

  	
  Form of Initial Global Note

  
	
  Exhibit B -

  	
  Form of Initial Definitive Note

  
	
  Exhibit C -

  	
  Form of Transfer Certificate for Transfer
  from Rule 144A Global Note to Regulation S Global Note

  
	
  Exhibit D -

  	
  Form of Transfer Certificate for Transfer
  from Regulation S Global Note to Rule 144A Global Note

  
	
  Exhibit E -

  	
  Form of Supplemental Indenture

  
	
   

  	
   

  
	
  NOTE:  This Table of Contents shall not, for any
  purpose, be deemed to be part of this Mezzanine Indenture.

  



 


vi

















 


MEZZANINE
INDENTURE, dated as of December 1, 2003 (this “Indenture” or the “Mezzanine Indenture”), among (i) Waterford Wedgwood plc,
a public limited company incorporated under the laws of Ireland as of the date
hereof and having its registered office at Kilbarry, Waterford, Ireland as of
the date hereof (the “Company”), (ii) the Guarantors (as defined
herein), (iii) The Bank of New York, London, as Trustee, Registrar, Principal
Paying Agent and transfer agent, (iv) Kredietbank S.A. Luxembourgeoise, as
Luxembourg Paying Agent and transfer agent, and (v) such additional entities
that from time to time are designated as Additional Guarantors (as defined
herein) and deliver a supplemental indenture hereto.


 


The Company
has duly authorized the execution and delivery of this Indenture by it to
provide for the issuance of the Notes (as defined herein).  Except as otherwise provided herein, €166,028,000
in aggregate principal amount of Notes shall be initially issued on the date
hereof.


 


Each party hereto agrees as
follows for the benefit of the other parties and for the equal and ratable
benefit of the Holders of the Notes:


 


ARTICLE I


 


DEFINITIONS AND INCORPORATION BY
REFERENCE


 


SECTION 1.1.   Definitions.  For purposes of this Indenture, unless
otherwise specifically indicated herein, the term “consolidated” with respect
to any Person refers to such Person consolidated with its Restricted Subsidiaries,
and excludes from such consolidation any Unrestricted Subsidiary as if such
Unrestricted Subsidiary were not an Affiliate of such Person.  In addition, for purposes of the following
definitions and this Indenture generally, all ratios and computations based on
GAAP shall be made in accordance with GAAP and shall be based upon the
consolidated financial statements of the Company and its subsidiaries prepared
in conformity with GAAP.  As used in
this Indenture, the following terms shall have the following meanings:


 


“Acquired Indebtedness” means Indebtedness of a Person or
any of its Subsidiaries existing at the time such Person becomes a Restricted
Subsidiary of the Company or at the time it merges or consolidates with or into
the Company or any of its Restricted Subsidiaries or assumed in connection with
the acquisition of assets from such Person and in each case not incurred by
such Person in connection with, or in anticipation or contemplation of, such
Person becoming a Restricted Subsidiary of the Company or such acquisition,
merger or consolidation.


 


“Additional Amounts”  shall have the meaning assigned to it in
Section 4.16.


 


“Additional Guarantee”  shall have the meaning assigned to it in
Section 11.1.


 


“Additional Guarantor”  shall have the meaning assigned to it in
Section 11.1.


 


“Additional Notes”  means any notes originally issued under
the terms of this Indenture after the Issue Date in addition to the Original
Notes (but, for the avoidance of doubt, excluding any Notes issued pursuant to
Section 2.6(b), 2.6(c), 2.8, 2.11 or 3.8).


 


1

















 


“Admission”  means the date on which the
rights to subscribe for the Company’s stock units will be listed and commence
trading on the Irish Stock Exchange and London Stock Exchange.


 


“Affiliate”means, with respect to any specified Person, any other Person who
directly or indirectly through one or more intermediaries controls, or is
controlled by, or is under common control with, such specified Person.  The term “control” means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of a Person, whether through the ownership of voting
securities, by contract or otherwise; and the terms “controlling” and “controlled”
have meanings correlative of the foregoing.


 


“Affiliate Transaction”  has the meaning assigned to
it in Section 4.11.


 


“Agent”
means the Principal Paying Agent, any Registrar, Paying Agent, Transfer Agent,
Authenticating Agent or co-Registrar.


 


“Agent Members”
shall have the meaning assigned to it in Section 2.16.


 


“Asset Acquisition” means (1) an Investment
by the Company or any Restricted Subsidiary of the Company in any other Person
pursuant to which such Person shall become a Restricted Subsidiary of the
Company or any Restricted Subsidiary of the Company, or shall be merged with or
into the Company or any Restricted Subsidiary of the Company, or (2) the
acquisition by the Company or any Restricted Subsidiary of the Company of the
assets of any Person (other than a Restricted Subsidiary of the Company) which
constitute all or substantially all of the assets of such Person or comprises
any division or line of business of such Person or any other properties or
assets of such Person other than in the ordinary course of business.


 


“Asset Sale”
means any direct or indirect sale, issuance, conveyance, transfer, lease (other
than operating leases entered into in the ordinary course of business),
assignment or other transfer for value by the Company or any of its Restricted
Subsidiaries (including any Sale and Leaseback Transaction) to any Person other
than the Company or a Wholly Owned Restricted Subsidiary of the Company of: (1)
any Capital Stock of any Restricted Subsidiary of the Company; or (2) any other
property or assets of the Company or any Restricted Subsidiary of the Company
other than in the ordinary course of business; provided, however, that asset sales or other
dispositions shall not include: (a) a transaction or series of related
transactions for which the Company or its Restricted Subsidiaries receive
aggregate consideration of less than €500,000; (b) the sale, lease, conveyance, disposition or other
transfer of all or substantially all of the assets of the Company as permitted
under Section 5.1; (c) any Restricted Payment permitted by Section 4.5 or that
constitutes a Permitted Investment; (d) the sale or discount, in each case
without recourse, of accounts receivable arising in the ordinary course of
business, but only in connection with the compromise or collection thereof; and
(e) disposals or replacements of obsolete or worn out equipment.


 


“Attributable Indebtedness”
in respect of a Sale and Leaseback Transactions means, as at the time of
determination, the present value (discounted at the interest rate borne by the
Notes, compounded semi-annually) of the total obligations of the lessee for
rental payments during the


 


2

















 


remaining term of the lease
included in such Sale and Leaseback Transaction (including any period for which
such lease has been extended).


 


“Authenticating
Agent” shall have the meaning assigned to it in Section 2.2.


 


“Bankruptcy
Law” means, any bankruptcy, insolvency or other similar statute
(including, without limitation, the relevant provisions of the Companies Act
1963-2001 of Ireland and the court protection and other provisions of the
Companies (Amendment) Act, 1990 (as amended) of Ireland, and any similar
statute), regulation or provision of any jurisdiction in which the Company is
incorporated or conducting business.


 


“Board of
Directors” means, as to any Person, the board of directors (or
similar governing body) of such Person or any duly authorized committee
thereof.


 


“Board
Resolution” means, with respect to any Person, a copy of a
resolution certified by the Secretary or an Assistant Secretary of such Person
to have been duly adopted by the Board of Directors of such Person and to be in
full force and effect on the date of such certification, and delivered to the
Trustee.


 


“Book-Entry
Depositary” means a book-entry depositary under a Depositary
Agreement.


 


“Book-Entry
Interests” means individual book-entry interests in a Depositary
Interest in a Global Note.


 


“Business Day”
means each day that is not a Saturday, Sunday or other day on which banking
institutions in Luxembourg City, Luxembourg, London, United Kingdom or New
York, New York are authorized or required by law to close.


 


“Capital
Stock” means


 


(1)                                  with respect to any
Person that is a company or corporation, any and all shares, interests,
participations or other equivalents (however designated and whether or not
voting) of corporate stock, including each class of Common Stock and Preferred
Stock of such Person, and all options, warrants or other rights to purchase or
acquire any of the foregoing; and


 


(2)                                  with respect to any
Person that is not a corporation, any and all partnership, membership or other
equity interests of such Person, and all options, warrants or other rights to
purchase or acquire any of the foregoing.


 


“Capitalized
Lease Obligation” means, as to any Person, the obligations of such
Person under a lease that are required to be classified and accounted for as
capital lease obligations under GAAP and, for purposes of this definition, the
amount of such obligations at any date shall be the capitalized amount of such
obligations at such date, determined in accordance with GAAP.


 


3

















 


“Cash
Equivalents” means:


 


(1)                                  securities issued or
directly and fully guaranteed or insured by the United States Government or a
member state of the European Union on the date of this Indenture or any agency
or instrumentality of either thereof (provided that the full faith and credit of the United States or such
member state is pledged in support thereof), having maturities of not more than
one year from the date of acquisition;


 


(2)                                  certificates of
deposit, time deposits, eurodollar time deposits, overnight bank deposits or
bankers’ acceptances having maturities of not more than one year from the date
of acquisition thereof issued by any lender party to the Credit Agreement or by
any bank or trust company (x) the long-term debt of which is rated at the time
of acquisition thereof at least “A” or the equivalent thereof by Standard &
Poor’s Ratings Services, or “A-2” or the equivalent thereof by Moody’s
Investors Service, Inc. (or if at the time neither is issuing comparable
ratings, then a comparable rating of another internationally recognized rating
agency), or (y) having combined capital and surplus in excess of  €500
million;


 


(3)                                  repurchase obligations with a term of not
more than seven days for underlying securities of the types described in
clauses (1) and (2) entered into with any bank meeting the qualifications
specified in clause (2) above;


 


(4)                                  commercial paper rated at the time of
acquisition thereof at least “A-2” or the equivalent thereof by Standard &
Poor’s Ratings Services or “P-2” or the equivalent thereof by Moody’s Investors
Service, Inc., or carrying an equivalent rating by an internationally
recognized rating agency, if both of the two named rating agencies cease
publishing ratings of investments, and in any case maturing within one year
after the date of acquisition thereof; and


 


(5)                                  interests in any investment company or money
market fund which invests 95% or more of its assets in instruments of the type
specified in clauses (1) through (4) above.


 


“Change in
Tax Law” has the meaning assigned to it in Paragraph 9 of any
Initial Note.


 


“Change of
Control” means the occurrence of one or more of the following
events:


 


(1)                                  any sale, lease, exchange or other transfer
(in one transaction or a series of related transactions) of all or
substantially all of the assets of the Company and its Subsidiaries to any
Person or group of related Persons for purposes of Section 13(d) of the
Exchange Act (a “Group”), together with any Affiliates thereof (whether or not
otherwise in compliance with the provisions of this Indenture) other than to
the Permitted Holders;


 


(2)                                  the approval by the holders of Capital Stock
of the Company of any plan or proposal for the liquidation or dissolution of
the Company (whether or not otherwise in compliance with the provisions of the
Indenture);


 


4

















 


(3)                                  any
Person or Group (other than the Permitted Holders and any entity formed by the
Permitted Holders for the purpose of owning, or through which the Permitted
Holders, directly or indirectly, own, Capital Stock of the Company) shall
become the owner, directly or indirectly, beneficially or of record, of shares
representing more than 50% of the aggregate ordinary voting power represented
by the issued and outstanding Capital Stock of the Company; or


 


(4)                                  the
replacement of a majority of the Board of Directors of the Company over a
two-year period from the directors who constituted the Board of Directors of
the Company at the beginning of such period, and such replacement shall not
have been approved by a vote of at least a majority of the Board of Directors
of the Company, then still in office who either were members of such Board of
Directors at the beginning of such period or whose election as a member of such
Board of Directors was previously so approved.


 


“Change of
Control Offer” has the meaning assigned to it in Section 4.15.


 


“Change of
Control Payment” has the meaning assigned to it in Section 4.15.


 


“Change of
Control Payment Date” has the meaning assigned to it in Section
4.15.


 


“Clearing
Agency” means one or more of Euroclear, Clearstream, or the
successor of either of them, in each case acting directly, or through a
custodian, nominee or depositary, as holder of Depositary Interests in the
Global Notes.


 


“Clearstream”
means Clearstream Banking, société anonyme.


 


“Code”
means the United States Internal Revenue Code of 1986, as amended.


 


“Collateral”
means, collectively, (i) the assets and property of the Company or any
Guarantor that from time to time are subject to a Lien securing the Obligations
of the Company and/or any Guarantor under any Security Documents.


 


“Common
Depositary” means the common depositary for Euroclear and
Clearstream, or its nominee and their respective successors or, as applicable,
such other nominee of or custodian for Euroclear and/or Clearstream, as
applicable, as may be acceptable to the Company and named or otherwise
appointed in accordance with the customary practices or policies of such Common
Depositary or Common Depositaries.


 


“Common Stock”
of any Person means any and all shares, interests or other participations in,
and other equivalents (however designated and whether voting or non-voting) of
such Person’s common stock, whether outstanding on the Issue Date or issued
after the Issue Date, and includes, without limitation, all series and classes
of such common stock.


 


“Company”
means the party named as such in this Indenture until any successor replaces it
in accordance with the terms of this Indenture and thereafter means any such
successor.


 


5

















 


“Company
Order” means a written order or request signed in the name of the
Company by an Officer of the Company or a member of the Board of Directors of
the Company.


 


“Consolidated
EBITDA” means, with respect to any Person, for any period, the sum
(without duplication) of:


 


(1)                                  Consolidated
Net Income; and


 


(2)                                  to
the extent Consolidated Net Income has been reduced thereby,


 


(a)                                  all
income taxes of such Person and its Restricted Subsidiaries, paid or accrued in
accordance with GAAP for such period (other than income taxes attributable to
extraordinary, unusual or nonrecurring gains or losses or taxes attributable to
sales or dispositions outside the ordinary course of business);


 


(b)                                 Consolidated
Interest Expense; and


 


(c)                                  Consolidated
Non-cash Charges less any non-cash items increasing Consolidated Net Income
for such period, all as determined on a consolidated basis for such Person and
its Restricted Subsidiaries in accordance with GAAP for such period.


 


For purposes
of determining Consolidated EBITDA only, the following costs attributed to the
2003 Restructuring Program shall be excluded during the periods specified: (x) €35.7
million, for the period ended March 31, 2003, (y) €32.7 million, for the period ended September
30, 2003 and (z) zero, for each period thereafter.


 


“Consolidated Fixed Charge Coverage
Ratio” means, with respect to any Person, the ratio of Consolidated
EBITDA of such Person during the Measurement Period ending prior to the date of
the transaction giving rise to the need to calculate the Consolidated Fixed
Charge Coverage Ratio for which financial statements are available (the
“Transaction Date”) to Consolidated Fixed Charges of such Person for the
Measurement Period.  In addition to and
without limitation of the foregoing, for purposes of this definition,
“Consolidated EBITDA” and “Consolidated Fixed Charges” shall be calculated
after giving effect on a pro forma basis for the period of such
calculation to:


 


(1)                                  the incurrence or repayment of any
Indebtedness of such Person or any of its Restricted Subsidiaries (and the
application of the proceeds thereof) giving rise to the need to make such
calculation and any incurrence or repayment of other Indebtedness (and the
application of the proceeds thereof), other than the incurrence or repayment of
Indebtedness in the ordinary course of business for working capital purposes
pursuant to working capital facilities, occurring during the Measurement Period
or at any time subsequent to the last day of the Measurement Period and on or
prior to the Transaction Date, as if such incurrence or repayment, as the case
may be (and the application of the proceeds thereof), occurred on the first day
of the Measurement Period; and


 


6

















 


(2)                                  any asset sales or other dispositions or
Asset Acquisitions (including, without limitation, any Asset Acquisition giving
rise to the need to make such calculation as a result of such Person or one of
its Restricted Subsidiaries (including any Person who becomes a Restricted
Subsidiary as a result of the Asset Acquisition) incurring, assuming or
otherwise being liable for Acquired Indebtedness and also including any
Consolidated EBITDA (including any pro forma expense and cost reductions
calculated on a basis consistent with Regulation S-X under the Exchange Act)
attributable to the assets which are the subject of the Asset Acquisition or
asset sale or other disposition during the Measurement Period) occurring during
the Measurement Period or at any time subsequent to the last day of the
Measurement Period and on or prior to the Transaction Date, as if such asset
sale or other disposition or Asset Acquisition (including the incurrence,
assumption or liability for any such Acquired Indebtedness) occurred on the
first day of the Measurement Period.  If
such Person or any of its Restricted Subsidiaries directly or indirectly
guarantees Indebtedness of a third Person, the preceding sentence shall give
effect to the incurrence of such guaranteed Indebtedness as if such Person or
any Restricted Subsidiary of such Person had directly incurred or otherwise
assumed such guaranteed Indebtedness.


 


Furthermore, in calculating
“Consolidated Fixed Charges” for purposes of determining the denominator (but
not the numerator) of this “Consolidated Fixed Charge Coverage Ratio”:


 


(1)                                  interest on outstanding Indebtedness
determined on a fluctuating basis as of the Transaction Date and which will
continue to be so determined thereafter shall be deemed to have accrued at a
fixed rate per annum equal to the rate of interest on such Indebtedness in
effect on the Transaction Date; and


 


(2)                                  notwithstanding clause (1) above, interest on
Indebtedness determined on a fluctuating basis, to the extent such interest is
covered by agreements relating to Interest Swap Obligations, shall be deemed to
accrue at the rate per annum resulting after giving effect to the operation of
such agreements.


 


“Consolidated Fixed Charges” means, with respect to any Person for any
period, the sum, without duplication, of:


 


(1)                                  Consolidated Interest Expense; plus


 


(2)                                  the product of (x) the amount of all dividend
payments on any series of Preferred Stock of such Person (other than dividends
paid in Qualified Capital Stock and other than dividends paid by a Restricted
Subsidiary of such Person to such Person or to a Wholly Owned Restricted
Subsidiary of such Person) paid, accrued or scheduled to be paid or accrued
during such period times (y) a fraction, the numerator of which is one and the
denominator of which is one minus the then current effective consolidated
national, state and local income tax rate of such Person, expressed as a
decimal.


 


“Consolidated Interest Expense” means, with respect to any Person for any
period, the sum of, without duplication:


 


7

















 


(1)                                  the aggregate of the interest expense of such
Person and its Restricted Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP, including without limitation: (a)
any amortization of debt discount and amortization or write-off of deferred
financing costs; (b) the net costs under Interest Swap Obligations; (c) all capitalized
interest; and (d) the interest portion of any deferred payment obligation; and


 


(2)                                  the interest component of Capitalized Lease
Obligations paid, accrued and/or scheduled to be paid or accrued by such Person
and its Restricted Subsidiaries during such period as determined on a
consolidated basis in accordance with GAAP.


 


“Consolidated Net Income”
means, with respect to any Person, for any period, the aggregate net income (or
loss) of such Person and its Restricted Subsidiaries for such period on a consolidated
basis, determined in accordance with GAAP; provided that there shall be excluded
therefrom


 


(1)                                  after-tax gains from Asset Sales (without
regard to the euro limitation set forth in clause (a) of the definition
thereof) or abandonments or reserves relating thereto;


 


(2)                                  after-tax items classified as extraordinary
or nonrecurring gains;


 


(3)                                  the net income of any Person acquired in a
“pooling of interests” transaction accrued prior to the date it becomes a
Restricted Subsidiary of the referent Person or is merged or consolidated with
the referent Person or any Restricted Subsidiary of the referent Person;


 


(4)                                  the net income (but not loss) of any
Restricted Subsidiary of the referent Person to the extent that the declaration
of dividends or similar distributions by that Restricted Subsidiary of that
income is restricted by a contract, operation of law or otherwise;


 


(5)                                  the net income of any Person, other than a
Restricted Subsidiary of the referent Person, except to the extent of cash
dividends or distributions paid to the referent Person or to a Wholly Owned
Restricted Subsidiary of the referent Person by such Person;


 


(6)                                  any restoration to income of any contingency
reserve, except to the extent that provision for such reserve was made out of
Consolidated Net Income accrued at any time following the Issue Date;


 


(7)                                  income or loss attributable to discontinued
operations (including, without limitation, operations disposed of during such
period whether or not such operations were classified as discontinued); and


 


8

















 


(8)                                  in the case of a successor to the referent
Person by consolidation or merger or as a transferee of the referent Person’s
assets, any earnings of the successor corporation prior to such consolidation,
merger or transfer of assets.


 


“Consolidated Non-cash Charges”
means, with respect to any Person, for any period, the aggregate depreciation,
amortization and other non-cash expenses of such Person and its Restricted
Subsidiaries reducing Consolidated Net Income of such Person and its Restricted
Subsidiaries for such period, determined on a consolidated basis in accordance
with GAAP (excluding any such charges constituting an extraordinary item or
loss or any such charge which requires an accrual of or a reserve for cash
charges for any future period).


 


“Corporate Trust Office”
means an office of the Trustee at which at any time its corporate trust
business shall be administered, which office at the date hereof is located at
One Canada Square, London E14 5AL, United Kingdom, Attention: Corporate Trust
Administration, or such other address as the Trustee may designate from time to
time by notice to the Holders and the Company, or the principal corporate trust
office of any successor Trustee (or such other address as such successor
Trustee may designate from time to time by notice to the Holders and the
Company).


 


“Covenant Defeasance” has the
meaning assigned to it in Section 8.3.


 


“Credit Agreement” means the
Credit Agreement dated as of November 29, 1999, as amended and restated under
the Amendment and Restatement Agreement dated March 4, 2002 by and among the
Company, the lenders party thereto in their capacities as lenders thereunder
and National Westminster Bank plc, as agent, together with the related
documents thereto (including, without limitation, any guarantee agreements and
security documents), in each case as such agreements may be amended (including
any amendment and restatement thereof), supplemented or otherwise modified from
time to time.


 


“Currency Agreement” means
any foreign exchange contract, currency swap agreement or other similar
agreement or arrangement.


 


“Custodian” means any
receiver, trustee, assignee, liquidator, examiner, administrator, sequestrator
or similar official under any Bankruptcy Law.


 


“Deadline” means December 6,
2003, or such earlier date as the Company shall determine that Admission will
not occur.


 


“Default” means an event or
condition the occurrence of which is, or with the lapse of time or the giving
of notice or both would be, an Event of Default.


 


“Default Interest Payment Date”
has the meaning assigned to it in Section 2.13.


 


“Definitive Notes” means
Notes in definitive registered form substantially in the form of Exhibit B
hereto.


 


9

















 


“Deposit Agreement” means the
deposit and custody agreement dated as of the date hereof relating to the
Global Notes among the Company, the Book-Entry Depositary in respect of the
Notes, the custodian therefor and the owners from time to time of Depositary
Interests.


 


“Depositary Interest” means
an interest in a Global Note issued by a Book-Entry Depositary to the Common
Depositary in respect of a Global Note in accordance with the Deposit
Agreement.


 


“Designated Senior Agents” means
(a) in relation to the Credit Agreement and the Private Placement Notes, the
agent appointed under the Intercreditor Agreement (or any successor agent
appointed thereunder) and (b) in relation to any other Designated Senior Debt,
any agent or representative which has been designated as a “Designated Senior
Agent” in any document or instrument evidencing such Designated Senior Debt.


 


“Designated Senior Debt”
means (i) Indebtedness under or in respect of the Credit Agreement and the
Private Placement Notes and (ii) any other Indebtedness constituting Senior
Debt of the Company or a Guarantor which, at the time of determination, has an
aggregate principal amount of at least €50.0 million and is specifically
designated in the instrument evidencing such Senior Debt as “Designated Senior
Debt” by the Company.


 


“Directive” has the meaning
assigned to it in Section 4.16.


 


“Disinterested Director”
means, with respect to any Affiliate Transaction, a member of the Board of
Directors of the Company having no material direct or indirect financial
interest in or with respect to such Affiliate Transaction.  A member of the Board of Directors of the
Company shall not be deemed to have such a financial interest by reason of such
member’s holding Capital Stock of the Company or any Parent or any options,
warrants or other rights in respect of such Capital Stock or being an officer
or employee of the Company, or any Restricted Subsidiary of the Company.


 


“Disqualified Capital Stock”
means that portion of any Capital Stock which, by its terms (or by the terms of
any security into which it is convertible or for which it is exchangeable at
the option of the holder thereof), or upon the happening of any event (other
than an event which would constitute a Change of Control), matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or
is redeemable at the sole option of the holder thereof (except, in each case,
upon the occurrence of a Change of Control) on or prior to the final maturity
date of the Notes.


 


“Escrow Agent” means the
Trustee, as escrow agent, under the Escrow Agreement.


 


“Escrow Agreement” means, the
Escrow Agreement, dated as of the date hereof, between the Company, the Escrow
Agent and J&E Davy.


 


“Escrowed Property” means the
amount in euro equal to the gross proceeds of the offering of the Notes
deposited with the Escrow Agent pursuant to the terms of the Escrow Agreement.


 


10

















 


“Euroclear” means Euroclear
Bank S.A./N.V.


 


“Euro Equivalent” means (i)
with respect to any monetary amount in euro, such amount and (ii) with respect
to any monetary amount in a currency other than euro, at any time of
determination thereof, the amount of euro obtained by translating such other
currency involved in such computation into euro at the spot rate for the
purchase of euro with the applicable other currency as published in the Financial
Times on September
30, 2003.


 


“Event of Default” has the
meaning assigned to it in Section 6.1.


 


“Exchange Act” means the
Securities Exchange Act of 1934, as amended, or any successor statute or
statutes thereto.


 


“Excluded Assets” means (i)
Alexandra Factory Car Park in Tunstall, (ii) Alexandra Factory in Tunstall,
(iii) Coalport Manufacturing Facility, (iv) Midwinter land parcel, (v) Stuart
Crystal Manufacturing Facility in Stourbridge, (vi) Dungarvan land parcel,
(vii) Eagle Factory in Stoke-on-Trent, and (viii) Mason’s Ironstone
Manufacturing Facility in Hanley.


 


“fair market value” means,
with respect to any asset or property, the price which could be negotiated in
an arm’s-length, free market transaction, for cash, between a willing seller
and a willing and able buyer, neither of whom is under undue pressure or
compulsion to complete the transaction. 
Fair market value shall be determined by the Board of Directors of the
Company acting reasonably and in good faith and shall be evidenced by a Board
Resolution of the Board of Directors of the Company delivered to the Trustee.


 


“First Priority Parties”
means each of (i) the Designated Senior Agent on behalf of itself, the lenders
under the Credit Agreement, the holders of the Private Placement Notes and the
holders of the other Senior Debt which are secured by the Security Documents on
the Issue Date and (ii) the holders from time to time of any other Senior Debt
which is secured and the duly authorized representative of such holders, if
any; provided,
in each case, that such Person or its duly authorized representative shall have
become a party to the Intercreditor Agreement.


 


“GAAP” means generally
accepted accounting principles in Ireland as in effect as of the date hereof; provided,
however, that all reports and other financial information provided
by the Company to the Holders, the Trustees and/or the Commission shall be
prepared in accordance with Irish GAAP as in effect on the date of such report
or other financial information.  All
ratios and computations based on GAAP contained herein will be computed in
conformity with Irish GAAP.


 


“Global Note” shall mean one
or more Regulation S Global Notes or Rule 144A Global Notes.


 


“Guarantee” means a guarantee
of the Notes by a Guarantor.


 


“Guarantor” means (1)
Waterford Wedgwood UK plc, Waterford Crystal Limited, All-Clad Holdings, Inc.,
Waterford Wedgwood USA, Inc., Wedgwood Limited, Waterford Crystal


 


11

















 


(Manufacturing) Limited, Waterford Wedgwood
GmbH, Statum Limited, Waterford Wedgwood Retail Limited, Waterford Wedgwood
Japan Limited, Josiah Wedgwood & Sons Limited, WW Inc., Waterford Wedgwood
Finance, Inc., Waterford Wedgwood Holdings, Waterford Wedgwood, Inc., Stuart
& Sons Limited, Josiah Wedgwood & Sons (Exports) Limited, All-Clad
Metal Crafters LLC, Clad Metals LLC and Clad Holdings Corp.; and (2) each of
the Company’s Restricted Subsidiaries that in the future executes a
supplemental indenture in which such Restricted Subsidiary agrees to be bound
by the terms of this Indenture as a Guarantor; provided
that any Person constituting a Guarantor as described above shall cease to
constitute a Guarantor when its respective Guarantee is released in accordance
with the terms of this Indenture.


 


“Holder” or “holder”
means, for so long as the Notes are represented by global notes, the bearer
thereof, which shall initially be the relevant Book-Entry Depositary and, in
the event that Definitive Notes are issued, each Person in whose name the Notes
are registered on the Registrar’s books.


 


“Indebtedness” means with
respect to any Person, without duplication,


 


(1)                                  all Obligations of such Person for borrowed
money;


 


(2)                                  all Obligations of such Person evidenced by
bonds, debentures, notes or other similar instruments;


 


(3)                                  all Capitalized Lease Obligations of such
Person;


 


(4)                                  all Obligations of such Person issued or
assumed as the deferred purchase price of property, all conditional sale
obligations and all Obligations under any title retention agreement (but
excluding trade accounts payable and other accrued liabilities arising in the
ordinary course of business that are not overdue by 90 days or more or are
being contested in good faith by appropriate proceedings promptly instituted
and diligently conducted);


 


(5)                                 all Obligations for the reimbursement of any
obligor on any letter of credit, banker’s acceptance or similar credit transaction;


 


(6)                                 guarantees and other contingent obligations
of such Person in respect of Indebtedness referred to in clauses (1) through
(5) above and clause (8) below;


 


(7)                                 all Obligations of any other Person of the
type referred to in clauses (1) through (6) which are secured by any lien on
any property or asset of such Person, the amount of such Obligation being
deemed to be the lesser of the fair market value of such property or asset or
the amount of the Obligation so secured;


 


(8)                                 all Obligations under currency agreements and
interest swap agreements of such Person; and


 


12

















 


(9)                                  all Disqualified Capital Stock issued by such
Person with the amount of Indebtedness represented by such Disqualified Capital
Stock being equal to the greater of its voluntary or involuntary liquidation
preference and its maximum fixed repurchase price, but excluding accrued
dividends, if any.


 


For purposes hereof, the
“maximum fixed repurchase price” of any Disqualified Capital Stock which does
not have a fixed repurchase price shall be calculated in accordance with the
terms of such Disqualified Capital Stock as if such Disqualified Capital Stock
were purchased on any date on which Indebtedness shall be required to be
determined pursuant to the Indenture, and if such price is based upon, or
measured by, the fair market value of such Disqualified Capital Stock, such
fair market value shall be determined reasonably and in good faith by the Board
of Directors of the issuer of such Disqualified Capital Stock.


 


“Indenture”
means this Indenture, as amended, modified or supplemented from time to time in
accordance with the terms hereof.


 


“Independent Financial Advisor” means a
firm (1) which does not, and whose directors, officers and employees or
Affiliates do not, have a direct or indirect financial interest in the Company;
and (2) which, in the judgment of the Board of Directors of the Company, is
otherwise independent and qualified to perform the task for which it is to be
engaged.


 


“Initial Global Notes” means the Regulation
S Global Note and the Rule 144A Global Note.


 


“Initial Notes” means Waterford Wedgwood plc’s 97/8% Mezzanine
Notes due 2010 issued on the Issue Date (and any Notes issued in respect
thereof pursuant to Section 2.6(b), 2.6(c), 2.7, 2.8, 2.11 or 3.8).


 


“Initial Purchasers” means the initial purchasers named as such in the Subscription
Agreement, dated November 26, 2003, among the Company and such initial
purchasers.


 


“Intercreditor Agreement”
means the intercreditor deed entered into by, amongst others, the lenders under
the Credit Agreement and the holders of the Private Placement Notes regarding
repayment of certain of the Designated Senior Debt (as the same may be amended,
amended and restated, supplemented or otherwise modified or replaced from time
to time).


 


“Interest Swap Obligations” means the obligations of any Person
pursuant to any arrangement with any other Person, whereby, directly or
indirectly, such Person is entitled to receive from time to time periodic payments
calculated by applying either a floating or a fixed rate of interest on a
stated notional amount in exchange for periodic payments made by such other
Person calculated by applying a fixed or a floating rate of interest on the
same notional amount and shall include, without limitation, interest rate
swaps, caps, floors, collars and similar agreements.


 


“Investment” means, with respect to any Person, any direct or indirect loan or
other extension of credit (including, without limitation, a guarantee) or capital
contribution to (by means


 


13

















 


of any transfer of cash or
other property to others or any payment for property or services for the
account or use of others), or any purchase or acquisition by such Person of any
Capital Stock, bonds, notes, debentures or other securities or evidences of
Indebtedness issued by, any other Person. “Investment” shall exclude extensions
of trade credit by the Company and its Restricted Subsidiaries on commercially
reasonable terms in accordance with normal trade practices of the Company or
such Restricted Subsidiary, as the case may be.  If the Company or any Restricted Subsidiary of the Company sells
or otherwise disposes of any Common Stock of any direct or indirect Restricted
Subsidiary of the Company such that, after giving effect to any such sale or
disposition, the Company no longer owns, directly or indirectly, greater than
50% of the outstanding Common Stock of such Restricted Subsidiary, the Company
shall be deemed to have made an Investment on the date of any such sale or
disposition equal to the fair market value of the Common Stock of such
Restricted Subsidiary not sold or disposed of.


 


“Irish GAAP” means accounting principles and
practices which are:


 


generally accepted
in Ireland as of the date of determination; and


 


consistent with the accounting principles applied by the Company, and
any variation to these accounting principles and practices which is not
material.


 


“Issue Date” means December 1, 2003, the date on
which Notes are first issued hereunder.


 


“Legal
Defeasance” has the
meaning assigned to it in Section 8.2.


 


“Lien”
means any lien, mortgage, deed of trust, pledge, security assignment, security
interest, charge or encumbrance of any kind (including any conditional sale or
other title retention agreement, any lease in the nature thereof and any
agreement to give any security interest).


 


“Measurement
Period” means the most recently completed two half-yearly periods
prior to any Transaction Date for which accounts have been delivered to the
Trustee; provided, however, that during any four quarter
period in which the Company has delivered to the Trustee and made publicly
available quarterly financial information, “Measurement Period” shall mean such
four quarter period.


 


“Net Cash Proceeds” means, with respect to
any Asset Sale, the proceeds in the form of cash or Cash Equivalents including
payments in respect of deferred payment obligations when received in the form
of cash or Cash Equivalents (other than the portion of any such deferred
payment constituting interest) received by the Company or any of its Restricted
Subsidiaries from such Asset Sale net of:


 


(1)                                  reasonable
out-of-pocket expenses and fees relating to such Asset Sale (including, without
limitation, legal, accounting and investment banking fees and sales
commissions);


 


14

















 


(2)                                  taxes
paid or payable after taking into account any reduction in consolidated tax
liability due to available tax credits or deductions and any tax sharing
arrangements;


 


(3)                                  repayment
of Indebtedness that is secured by the property or assets that are the subject
of such Asset Sale; and


 


(4)                                  appropriate
amounts to be provided by the Company or any Restricted Subsidiary, as the case
may be, as a reserve, in accordance with GAAP, against any liabilities
associated with such Asset Sale and retained by the Company or any Restricted
Subsidiary, as the case may be, after such Asset Sale, including, without
limitation, pension and other post-employment benefit liabilities, liabilities
related to environmental matters and liabilities under any indemnification
obligations associated with such Asset Sale.


 


“Note Issue Date” means, with respect to the issuance of any Note that is an
Initial Note or an Additional Note, the date of issuance of such Note.


 


“Notes” means the Initial Notes and any Additional Notes (and any
Notes issued pursuant to Sections 2.6(b), 2.6(c), 2.7, 2.8, 2.11 or 3.8).


 


“Obligations” means all obligations for principal, premium, interest,
penalties, fees, indemnifications, reimbursements, damages and other
liabilities payable under the documentation governing any Indebtedness.


 


“Officer” means, with respect to any Person, (x) the Chairman of the
Board, the Chief Executive Officer, the President, the Chief Financial Officer,
any Vice President, the Treasurer or the Secretary (a) of such Person or (b) if
such Person is owned or managed by a single entity, of such entity or, or (y)
any other individual designated as an “Officer” for the purposes of this
Indenture by the Board of Directors of such Person.


 


“Officer’s Certificate” means, with respect to any Person,
a certificate signed by one Officer of such Person.


 


“Opinion of Counsel” means a written opinion in form and substance reasonably
satisfactory to the Trustee from legal counsel who is reasonably acceptable to
the Trustee.  The counsel may be an
employee of or counsel to the Company.


 


“Pari Passu Indebtedness” means any Indebtedness of the
Company or any Guarantor that ranks pari
passu in right of payment with the Notes or such Guarantor’s
Guarantee, as the case may be.


 


“Paying Agent” means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Notes on behalf of the
Company.


 


“Payor” has the meaning assigned to it in Section 4.16.


 


15

















 


“Permitted Holders” means, collectively, (i) Sir Anthony O’Reilly and Peter John
Goulandris, and (ii) any Affiliate or Related Person of any Permitted Holder
described in the preceding clause (i), and any successor to any such Permitted
Holder, Affiliate or Related Person.


 


“Permitted Investments” means


 


(1)                                  Investments
by the Company or any Restricted Subsidiary of the Company in any Person that
is or will become immediately after such Investment a Restricted Subsidiary of
the Company or that will merge or consolidate into the Company or a Restricted
Subsidiary of the Company;


 


(2)                                  Investments
in the Company by any Restricted Subsidiary of the Company; provided that
any Indebtedness evidencing such Investment and held by a Restricted Subsidiary
that is not a Guarantor is unsecured and subordinated, pursuant to a written
agreement, to the Company’s obligations under the Notes and this Indenture;


 


(3)                                  Investments
in cash and Cash Equivalents;


 


(4)                                  payroll,
travel and other advances and loans to employees, directors and officers of the
Company and its Restricted Subsidiaries in the ordinary course of business for
bona fide business purposes not in excess of €3.0 million at any one time
outstanding;


 


(5)                                  Currency
Agreements and Interest Swap Obligations entered into in the ordinary course of
the Company’s or its Restricted Subsidiaries’ businesses and otherwise in
compliance with this Indenture;


 


(6)                                  additional
Investments not to exceed €25.0 million at any one time outstanding;


 


(7)                                  Investments
in assets, securities or other obligations of trade creditors, suppliers or
customers received: (i) pursuant to any plan of reorganization or similar
arrangement upon the bankruptcy or insolvency of such trade creditors,
suppliers or customers or in good faith settlement of delinquent obligations of
such trade creditors, suppliers or customers or (ii) in settlement or
satisfaction of a final judgment;


 


(8)                                  Investments
made by the Company or its Restricted Subsidiaries as a result of consideration
received in connection with an Asset Sale made in compliance with Section 4.6;


 


(9)                                  Investments
represented by guarantees that are otherwise permitted under the Indenture;


 


(10)                            deposits
made in the ordinary course of business related to investments in negotiable
instruments held for collection, leases, utilities,
workers’ compensation and unemployment and similar legislation related, and
performance and other similar deposits;


 


16

















 


(11)                            receivables
owing to the Company or a Restricted Subsidiary, if created or acquired in the
ordinary course of business and payable or dischargeable in accordance with
customary trade terms; provided, however, that such trade terms
may include such concessionary trade terms as the Company or such Restricted
Subsidiary deems reasonable under the circumstances;


 


(12)                            Investments
in existence on the Issue Date;


 


(13)                            loans
or advances to vendors, contractors, suppliers or distributors, including
advance payments for finished goods, raw materials, supplies, services,
equipment or machinery made to the manufacturer, supplier or distributor
thereof by the Company or any Restricted Subsidiaries in the ordinary course of
business and payable or dischargeable in accordance with customary trade terms;
and


 


(14)                            Investments
the payment for which is Qualified Capital Stock of the Company.


 


“Permitted Junior Securities” means Capital Stock in the Company
or debt securities that are unsecured and are subordinated to all Senior Debt
(and any debt securities issued in exchange for Senior Debt) to substantially
the same extent as, or to a greater extent than, the Notes are subordinated to
Senior Debt pursuant to Article X of this Indenture (without limiting the
foregoing, such securities shall have no required principal payments until
after the final maturity of all Senior Debt).


 


“Permitted Liens” means the following types of Liens:


 


(1)                                  Liens
for taxes, assessments or governmental charges or claims either (a) not
delinquent or (b) contested in good faith by appropriate proceedings and as to
which the Company or its Restricted Subsidiaries shall have set aside on its
books such reserves as may be required pursuant to GAAP;


 


(2)                                  statutory
Liens of landlords and Liens of carriers, warehousemen, mechanics, suppliers,
materialmen, repairmen and other Liens imposed by law incurred in the ordinary
course of business for sums not yet delinquent or being contested in good faith,
if such reserve or other appropriate provision, if any, as shall be required by
GAAP shall have been made in respect thereof;


 


(3)                                  Liens
incurred or deposits made in the ordinary course of business in connection with
workers’ compensation, unemployment insurance and other types of social
security, including any Lien securing letters of credit issued in the ordinary
course of business consistent with past practice in connection therewith, or to
secure the performance of tenders, statutory obligations, surety and appeal
bonds, bids, leases, government contracts, performance and return-of-money
bonds and other similar obligations (exclusive of obligations for the payment
of borrowed money);


 


17

















 


(4)                                  judgment
Liens not giving rise to an Event of Default so long as such Lien is adequately
bonded and any appropriate legal proceedings which may have been duly initiated
for the review of such judgment shall not have been finally terminated or the
period within which such proceedings may be initiated shall not have expired;


 


(5)                                  minor
survey exceptions, minor encumbrances, easements, rights-of-way, zoning
restrictions and other similar charges or encumbrances in respect of real
property not interfering in any material respect with the ordinary conduct of
the business of the Company or any of its Restricted Subsidiaries;


 


(6)                                  any
interest or title of a lessor under any Capitalized Lease Obligation; provided that such Liens do not extend to
any property or assets which is not leased property subject to such Capitalized
Lease Obligation;


 


(7)                                  Liens
securing Purchase Money Indebtedness incurred or in the ordinary course of
business; provided, however, that (a) such Purchase Money
Indebtedness shall not exceed the purchase price or other cost of such property
or equipment and shall not be secured by any property or equipment of the
Company or any Restricted Subsidiary of the Company other than the property and
equipment so acquired and (b) the Lien securing such Purchase Money
Indebtedness shall be created within 90 days of such acquisition;


 


(8)                                  Liens
upon specific items of inventory or other goods and proceeds of any Person
securing such Person’s obligations in respect of bankers’ acceptances issued or
created for the account of such Person to facilitate the purchase, shipment or
storage of such inventory or other goods;


 


(9)                                  Liens
securing reimbursement obligations with respect to commercial letters of credit
which encumber documents and other property relating to such letters of credit
and products and proceeds thereof;


 


(10)                            Liens
encumbering deposits made to secure obligations arising from statutory,
regulatory, contractual, or warranty requirements of the Company or any of its
Restricted Subsidiaries, including rights of offset and set-off;


 


(11)                            Liens
securing Interest Swap Obligations which Interest Swap Obligations relate to
Indebtedness that is otherwise permitted under the Indenture;


 


(12)                            Liens
securing Indebtedness under Currency Agreements;


 


(13)                            Liens
securing Acquired Indebtedness incurred in accordance with Section 4.3; provided
that:


 


(a)                                  such
Liens secured such Acquired Indebtedness at the time of and prior to the
incurrence of such Acquired Indebtedness by the Company or a Restricted
Subsidiary of the Company and were not granted in connection


 


18

















 


with, or in
anticipation of, the incurrence of such Acquired Indebtedness by the Company or
a Restricted Subsidiary of the Company; and


 


(b)                                 such
Liens do not extend to or cover any property or assets of the Company or of any
of its Restricted Subsidiaries other than the property or assets that secured
the Acquired Indebtedness prior to the time such Indebtedness became Acquired
Indebtedness of the Company or a Restricted Subsidiary of the Company and are
no more favorable to the lienholders than those securing the Acquired
Indebtedness prior to the incurrence of such Acquired Indebtedness by the
Company or a Restricted Subsidiary of the Company;


 


(14)                            Liens
on assets of a Restricted Subsidiary of the Company that is not a Guarantor to
secure Indebtedness of such Restricted Subsidiary that is otherwise permitted
under the Indenture;


 


(15)                            leases,
subleases, licenses and sublicenses granted to others that do not materially
interfere with the ordinary course of business of the Company and its
Restricted Subsidiaries;


 


(16)                            banker’s
Liens, rights of setoff and similar Liens with respect to cash and Cash
Equivalents on deposit in one or more bank accounts in the ordinary course of
business;


 


(17)                            Liens
arising from filing Uniform Commercial Code financing statements regarding
leases;


 


(18)                            Liens
in favor of customs and revenue authorities arising as a matter of law to
secure payments of custom duties in connection with the importation of goods;


 


(19)                            Liens
in existence on the Issue Date; and


 


(20)                            Other
than as specified in clauses (1) through (19) above, Liens incurred in the
ordinary course of business of the Company or any Restricted Subsidiary of the
Company with respect to Indebtedness that do not, in the aggregate, exceed €5.0 million at any one time
outstanding.


 


“Person” means an individual, partnership, company, corporation,
unincorporated organization, trust or joint venture, or a governmental agency
or political subdivision thereof.


 


“Preferred Stock” of any Person means any Capital Stock of such Person that has
preferential rights to any other Capital Stock of such Person with respect to
dividends or redemptions or upon liquidation.


 


“Principal Paying Agent” means The Bank of
New York, London, acting in that capacity.


 


“Private Placement Legend” has the meaning assigned to it in
Section 2.7(g).


 


19

















 


“Private Placement Notes” means $95.0
million aggregate principal amount of the 8.75% Secured Senior Notes (together
with any additional notes that may be issued to capitalize make-whole amounts
owing thereunder from time to time) due November 18, 2008 of Waterford Wedgwood
Finance, Inc. issued pursuant to separate note purchase agreements, dated as of
November 18, 1998, as such agreements may be amended (including any amendment
and restatement thereof), supplemented or otherwise modified from time to time.


 


“Public Debt” means any bonds, debentures,
notes or other similar debt securities issued in a public offering or a private
placement to institutional investors.


 


“Public Equity Offering” ” means an
offering by the Company of its Qualified Capital Stock where such Qualified
Capital Stock is listed or quoted on a recognized securities exchange or inter
dealer quotation system in any current member of the European Union or the
United States.


 


“Purchase Money Indebtedness” means
Indebtedness of the Company and its Restricted Subsidiaries incurred in the
normal course of business for the purpose of financing all or any part of the purchase
price, or the cost of installation, construction or improvement, of property or
equipment.


 


“Qualified Capital Stock” means any Capital
Stock that is not Disqualified Capital Stock.


 


“Qualified Institutional Buyer” or “QIB” has the meaning assigned to it by
Rule 144A under the Securities Act.


 


“Record Date” shall mean a date which is 15
days before any Interest Payment Date (as defined in the Note).


 


“Redemption Date” when used with respect to
any Note to be redeemed, means the date fixed for such redemption pursuant to
this Indenture and Paragraph 8 of the Initial Notes.


 


“Redemption Price” when used with respect
to any Note to be redeemed, means the price fixed for such redemption pursuant
to this Indenture and Paragraphs 8 and 9 of the Initial Notes.


 


“Refinance” means, in respect of any
security or Indebtedness, to refinance, extend, renew, refund, repay, prepay,
redeem, defease or retire, or to issue a security or Indebtedness in exchange
or replacement for, such security or Indebtedness in whole or in part.
“Refinanced” and “Refinancing” shall have correlative meanings.


 


“Refinancing Indebtedness” means any
Refinancing by the Company or any Restricted Subsidiary of the Company of
Indebtedness incurred in accordance with Section 4.3 (other than pursuant to
clause (2), (4), (5), (6), (7), (8), (9), (10), (12) or (13) of paragraph (b)
thereof), in each case that does not:


 


(1)                                  result
in an increase in the aggregate principal amount of Indebtedness of such Person
as of the date of such proposed Refinancing (plus the amount of any premium,


 


20

















 


make-whole or
accrued interest required to be paid under the terms of the instrument
governing such Indebtedness and plus the amount of reasonable expenses incurred
by the Company in connection with such Refinancing); or


 


(2)                                  create
Indebtedness with: (a) a Weighted Average Life to Maturity that is less than
the Weighted Average Life to Maturity of the Indebtedness being Refinanced; or
(b) a final maturity earlier than the final maturity of the Indebtedness being
Refinanced; provided
that (x) if such Indebtedness being Refinanced is Indebtedness
solely of the Company (and is not otherwise guaranteed by a Restricted
Subsidiary of the Company), then such Refinancing Indebtedness shall be
Indebtedness solely of the Company and (y) if such Indebtedness being
Refinanced is subordinate or junior to the Notes or any Guarantee, then such
Refinancing Indebtedness shall be subordinate to the Notes or such Guarantee,
as the case may be, at least to the same extent and in the same manner as the
Indebtedness being Refinanced.


 


“Registrar” has the meaning assigned to it
in Section 2.3.


 


“Regulation S” means Regulation S
(including any successor regulation thereto) under the Securities Act, as it
may be amended from time to time.


 


“Regulation S Global Note” has the meaning assigned to it in
Section 2.1.


 


“Regulation S Note” has the meaning
assigned to it in Section 2.1.


 


“Related Person” with respect to any
Permitted Holder means:


 


(1)                                  any
controlling equityholder or majority (or more) owned Subsidiary of such Person;
or


 


(2)                                  in
the case of an individual, any spouse, family member or relative of such
individual, any trust or partnership for the benefit of one or more of such
individual and any such spouse, family member or relative, or the estate,
executor, administrator, committee or beneficiaries of any thereof; or


 


(3)                                  any
trust, corporation, partnership or other Person for which one or more of the
Permitted Holders and other Related Persons or any thereof constitute the
beneficiaries, stockholders, partners or owners thereof; or Persons
beneficially holding in the aggregate a majority (or more) controlling interest
therein.


 


“Release” means the release of the Escrowed
Property to the Company pursuant to the terms of the Escrow Agreement.


 


“Relevant Taxing Jurisdiction” has the
meaning assigned to it in Section 4.16.


 


“Responsible Officer” shall mean, when used
with respect to the Trustee, any officer within the corporate trust department
of the Trustee, including any vice president, assistant vice president,
assistant treasurer, responsible officer or any other officer of the Trustee
who customarily


 


21

















 


performs functions similar to
those performed by the Persons who at the time shall be such officers,
respectively, or to whom any corporate trust matter is referred because of such
person’s knowledge of and familiarity with the particular subject and who shall
have direct responsibility for the administration of this Indenture.


 


“Restricted Global Note”
means a Global Note required to bear the Private Placement Legend pursuant to
the terms of this Indenture.


 


“Restricted Investment” means any
Investment other than a Permitted Investment.


 


“Restricted Payment” has the meaning
assigned to it in Section 4.5.


 


“Restricted Period” has the meaning
assigned to it in Section 2.7(c).


 


“Restricted Subsidiary” of any Person means
any Subsidiary of such Person which at the time of determination is not an
Unrestricted Subsidiary.


 


“Rights Offering” means the Company’s
conditional rights offering.


 


“Rule 144” means Rule 144 (including any
successor regulation thereto) under the Securities Act, as it may be amended
from time to time.


 


“Rule 144A” means Rule 144A (including any
successor regulation thereto) under the Securities Act, as it may be amended
from time to time.


 


“Rule 144A Global Note” has the meaning
assigned to it in Section 2.1.


 


“Rule 144A Notes” has the meaning assigned
to it in Section 2.1.


 


“Sale and Leaseback Transaction” means any
direct or indirect arrangement with any Person or to which any such Person is a
party, providing for the leasing to the Company or a Restricted Subsidiary of
any property, whether owned by the Company or any Restricted Subsidiary at the
Issue Date or later acquired, which has been or is to be sold or transferred by
the Company or such Restricted Subsidiary to such Person or to any other Person
from whom funds have been or are to be advanced by such Person on the security
of such Property.


 


“SEC” means the United States Securities
and Exchange Commission or any successor agency.


 


“Second Priority Parties” means (i) each of
the Trustee on behalf of itself and the Holders of the Notes (including any
Additional Notes subsequently issued under and in compliance with the terms of
this Indenture) and (ii) the holders from time to time of any other Pari Passu
Indebtedness and the duly authorized representative of such holders, if any; provided, in each case, that such Person
or its duly authorized representative shall have become a party to the
Intercreditor Agreement.


 


22

















 


 


“Securities Act” means the United States
Securities Act of 1933, as amended, and the rules and regulations of the SEC
promulgated thereunder.


 


“Security Agent” means the Person
designated as security agent under the Security Documents.


 


“Security Documents” means the security
agreements and related documents which assets on the Issue Date are secured in
favor of the Security Agent as security for, among others (i) borrowings under
the Credit Agreement, (ii) obligations under the Private Placement Notes and
(iii) obligations under the Notes and Guarantees (including, without
limitation, the Intercreditor Agreement) and any other security agreements or
other instruments by which any of the Company’s or a Guarantor’s Obligations
hereunder (or under the Notes or the Guarantees) are secured by a Lien (whether
pursuant to Section 13.01(c), 13.10 or otherwise) as such agreements may be
amended from time to time.


 


“Senior Debt” of any Person means the
principal of, premium, if any, and interest (including any interest accruing
subsequent to the filing of a petition of bankruptcy at the rate provided for
in the documentation with respect thereto, whether or not such interest is an
allowed claim under applicable law) on any Indebtedness of such Person, whether
outstanding on the Issue Date or thereafter created, incurred or assumed,
unless, in the case of any particular Indebtedness, the instrument creating or
evidencing the same or pursuant to which the same is outstanding expressly
provides that such Indebtedness shall not be senior in right of payment to the
Notes.  Without limiting the generality
of the foregoing, “Senior Debt” shall also include the principal of, premium,
if any, interest (including any interest accruing subsequent to the filing of a
petition of bankruptcy at the rate provided for in the documentation with
respect thereto, whether or not such interest is an allowed claim under
applicable law) on, and all other amounts owing in respect of, (x) all monetary
obligations of every nature of the Company under the Credit Agreement and the
Private Placement Notes, including, without limitation, obligations to pay
principal, make-whole amounts (including to the extent capitalized by the
issuance of additional notes and subsequent increases in the aggregate
outstanding principal amount thereof by way of further capitalization of
make-whole amounts under the Private Placement Notes) and interest (including
interest on any notes issued to capitalize make-whole amounts owing under the
Private Placement Notes), reimbursement obligations under letters of credit,
fees, expenses and indemnities, (y) all Interest Swap Obligations and (z) all
obligations under Currency Agreements, in each case whether outstanding on the
Issue Date or thereafter incurred. 
Notwithstanding the foregoing, “Senior Debt” shall not include (i) any
Indebtedness of the Company to a Subsidiary of the Company, (ii) Indebtedness
to, or guaranteed on behalf of, any shareholder, director, officer or employee
of the Company or any Subsidiary of the Company (including, without limitation,
amounts owed for compensation), (iii) Indebtedness to trade creditors and other
amounts incurred in connection with obtaining goods, materials or services,
(iv) Indebtedness represented by Disqualified Capital Stock, (v) any liability
for taxes (including national or local taxes) owed or owing by the Company,
(vi) Indebtedness incurred in violation of Section 4.3 of this Indenture, (vii)
Indebtedness which, when incurred, is without recourse to the Company and
(viii) any Indebtedness which is, by its express terms, subordinated in right
of payment to any other Indebtedness of the Company.


 


23

















 


“Significant Subsidiary” with respect to
any Person, means any Restricted Subsidiary of such Person that satisfies the
criteria for a “significant subsidiary” set forth in Rule 1.02(w) of Regulation
S-X under the Exchange Act.


 


“Special Mandatory Redemption” has the
meaning assigned to it in Section 3.1.


 


“Special Mandatory Redemption Date” has the
meaning assigned to it in Section 3.1.


 


“Special Mandatory Redemption Price” has
the meaning assigned to it in Section 3.1.


 


“Stated Maturity” means, with respect to
any security, the date specified in such security as the fixed date on which
the payment of principal of such security is due and payable, including
pursuant to any mandatory redemption provision, but shall not include any
contingent obligations to repay, redeem or repurchase any such principal prior
to the date originally scheduled for the payment thereof.


 


“Subordinated Indebtedness” means
Indebtedness of the Company or any Guarantor that is subordinated or junior in
right of payment to the Notes or the Guarantee of such Guarantor, as the case
may be.


 


“Subsidiary”, with respect to any Person,
means:


 


(1)                                  any
corporation of which the outstanding Capital Stock having at least a majority
of the votes entitled to be cast in the election of directors under ordinary
circumstances shall at the time be owned, directly or indirectly, by such
Person; or


 


(2)                                  any
other Person of which at least a majority of the voting interest under ordinary
circumstances is at the time, directly or indirectly, owned by such Person.


 


“Successor Company” has the meaning assigned to it in Section 5.1(1).


 


“Taxes” means all present and future taxes,
levies, imposts, deductions, charges, duties and withholdings and any charges
of a similar nature (including interest, penalties and other liabilities with
respect thereto) that are imposed by any government or other taxing authority.


 


“Tax Redemption Date” when used with
respect to any Note to be redeemed, means the date fixed for such redemption
pursuant to this Indenture and Paragraph 9 of the Initial Notes.


 


“TIA” means the Trust Indenture Act of 1939
(15 U.S.C. Sections 77aaa-77bbbb), as it may be amended from time to time.


 


“Trustee” means the party named as such in
this Indenture until a successor replaces it in accordance with the provisions
of this Indenture and thereafter means such successor.


 


“U.S. Person” means a “US person” as
defined in Rule 902 under the Securities Act or any successor rule.


 


24

















 


“Unrestricted Global Note” shall mean any
Global Note that is not a Restricted Global Note.


 


“Unrestricted Subsidiary” of any Person
means:


 


(1)                                  any
Subsidiary of such Person that at the time of determination shall be or
continue to be designated an Unrestricted Subsidiary by the Board of Directors
of such Person in the manner provided below; and


 


(2)                                  any
Subsidiary of an Unrestricted Subsidiary.


 


The Board of
Directors may designate any Subsidiary (including any newly acquired or newly
formed Subsidiary) to be an Unrestricted Subsidiary unless such Subsidiary owns
any Capital Stock of, or owns or holds any Lien on any property of, the Company
or any other Subsidiary of the Company that is not a Subsidiary of the Subsidiary
to be so designated; provided that:


 


(1)                                  the
Company certifies to the Trustee that such designation complies with Section
4.5; and


 


(2)                                  each
Subsidiary to be so designated and each of its Subsidiaries has not at the time
of designation, and does not thereafter, create, incur, issue, assume,
guarantee or otherwise become directly or indirectly liable with respect to any
Indebtedness pursuant to which the lender has recourse to any of the assets of
the Company or any of its Restricted Subsidiaries.


 


For purposes
of making the determination of whether any such designation of a Subsidiary as
an Unrestricted Subsidiary complies with Section 4.5, the portion of the fair
market value of the net assets of such Subsidiary of the Company at the time
that such Subsidiary is designated as an Unrestricted Subsidiary that is
represented by the interest of the Company and its Restricted Subsidiaries in
such Subsidiary, in each case as determined in good faith by the Board of
Directors of the Company, shall be deemed to be an Investment.  Such designation will be permitted only if
such Investment would be permitted at such time under Section 4.5.


 


The Board of
Directors may designate any Unrestricted Subsidiary to be a Restricted
Subsidiary only if:


 


(1)                                  immediately
after giving effect to such designation, the Company is able to incur at least €1.00 of additional Indebtedness pursuant to
paragraph (a) of Section 4.3; and


 


(2)                                  immediately before and immediately after
giving effect to such designation, no Default or Event of Default shall have
occurred and be continuing.  Any such
designation by the Board of Directors shall be evidenced to the Trustee by
promptly filling with the Trustee a copy of the Board Resolution giving effect
to such designation and


 


25

















 


an officers’
certificate certifying that such designation complied with the foregoing
provisions.


 


“Weighted
Average Life to Maturity” means, when applied to any Indebtedness at
any date, the number of years (calculated to the nearest one-twelfth) obtained
by dividing (a) the then outstanding aggregate principal amount of such
Indebtedness into (b) the sum of the total of the products obtained by
multiplying (i) the amount of each then remaining installment, sinking fund,
serial maturity or other required payment of principal, including payment at
final maturity, in respect thereof, by (ii) the number of years (calculated to
the nearest one-twelfth) which will elapse between such date and the making of
such payment.


 


“Wholly Owned
Restricted Subsidiary” of any Person means any Wholly Owned Subsidiary
of such Person which at the time of determination is a Restricted Subsidiary of
such Person.


 


“Wholly Owned
Subsidiary” of any Person means any Subsidiary of such Person of
which all the outstanding voting securities (other than directors’ qualifying shares
or an immaterial amount of shares required to be owned by other Persons
pursuant to applicable law) are owned by such Person or any Wholly Owned
Subsidiary of such Person.


 


SECTION 1.2.   Rules of Construction.  Unless the context otherwise requires:


 


(a)                                  a
term defined in this Indenture has the meaning assigned to it in this
Indenture;


 


(b)                                 an
accounting term not otherwise defined in this Indenture has the meaning
assigned to it in accordance with GAAP;


 


(c)                                  “or”
is not exclusive;


 


(d)                                 words
in the singular include the plural, and words in the plural include the
singular;


 


(e)                                  “herein,”
“hereof” and “hereunder” and other words of similar import refer to this
Indenture as a whole and not to any particular Article, Section or other
subdivision.


 


(f)                                    all
references to “€” or “euro” are
to the lawful currency of the participating member states of the Third Stage of
European Economic and Monetary Union of the Treaty Establishing the European
Community;


 


(g)                                 any
reference to “Section” or “Article” refers to a “Section”
or “Article” of this Indenture; and


 


(h)                                 unless
otherwise specified or the context otherwise requires, references to “Board of
Directors”, “Board Resolution”, “Officer”, “Officer’s Certificate”, “Restricted
Subsidiary”, “Subsidiary”, “Unrestricted Subsidiary”, “Wholly Owned Restricted
Subsidiary” and “Wholly Owned Subsidiary” mean the Board of Directors, a Board
Resolution,


 


26

















 


an Officer, an
Officer’s Certificate, a Restricted Subsidiary, a Subsidiary, an Unrestricted
Subsidiary, a Wholly Owned Restricted Subsidiary and a Wholly Owned Subsidiary,
respectively, of the Company.


 


ARTICLE II


 


THE NOTES


 


SECTION 2.1.   Form and Dating.  i) 
The Initial Notes, Additional Notes and the notation thereon relating to
the Trustee’s certificate of authentication thereof, shall be substantially in
the form of Exhibits A or B, as applicable.  The Notes may have such appropriate insertions, omissions,
substitutions, notations, legends, endorsements, identifications and other
variations as are required or permitted by law, stock exchange rule or Clearing
Agency rule or usage, any agreements to which the Company or any Guarantors are
subject, if any, or any other customary usage, or as may consistently herewith
be determined by an Officer of the Company, as evidenced by the execution of
such Notes (provided
always that any such notation, legend, endorsement, identification
or variation is in a form acceptable to the Company).  Each Note shall be dated the date of its issuance and shall show
the date of its authentication.


 


The terms and
provisions contained in the Notes, annexed hereto as Exhibits A and B, shall
constitute, and are hereby expressly made, a part of this Indenture and, to the
extent applicable, the Company, each Guarantor, the Trustee and the Principal
Paying Agent, by their execution and delivery of this Indenture, expressly
agree to such terms and provisions and to be bound thereby.  The Notes will initially be represented by
the Initial Global Notes.  Global Notes
shall be issuable only in bearer form and Definitive Notes, if any, shall be
issuable only in registered form.  The
Global Notes shall be deposited with the Book-Entry Depositary or a custodian
therefor in accordance with the Deposit Agreement.


 


(a)                                  Notes
offered and sold in their initial distribution in reliance on Regulation S
shall be initially issued in global form without interest coupons,
substantially in the form of Exhibit A hereto, with such applicable
legends as are provided in Exhibit A hereto, except as otherwise
permitted herein.  Such Global Notes
shall be referred to collectively herein as the “Regulation S Global Note.”  The aggregate principal amount of the
Regulation S Global Note may from time to time be increased or decreased by
adjustments made on the records of the Trustee, as hereinafter provided (or by
the issue of further Regulation S Global Notes), in connection with a
corresponding decrease or increase in the aggregate principal amount of the
Rule 144A Global Note (as defined below), or in consequence of the issue of
Definitive Notes or additional Regulation S Notes, as hereinafter
provided.  The Regulation S Global Note
and all other Initial Notes that are not Rule 144A Notes (as defined below)
shall collectively be referred to herein as the “Regulation S Notes.”


 


(b)                                 Notes
offered and sold in their initial distribution in reliance on Rule 144A shall
be initially issued in global form without interest coupons, substantially in
the form of Exhibit A hereto, with such applicable legends as are
provided in Exhibit A, except as otherwise permitted herein.  Such Global Notes shall be referred to
collectively herein as the “Rule 144A Global Note.”  The aggregate principal amount of the Rule
144A Global Note may from time to time be


 


27

















 


increased or decreased by
adjustments made on the records of the Trustee, as hereinafter provided (or by
the issue of further Rule 144A Global Notes), in connection with a
corresponding decrease or increase in the aggregate principal amount of the
Regulation S Global Note, or in consequence of the issue of Definitive Notes or
additional Rule 144A Notes, as hereinafter provided.  The Rule 144A Global Note and all other Initial Notes offered and
sold in their initial distribution in reliance on Rule 144A under the
Securities Act shall collectively be referred to herein as the “Rule 144A
Notes.”


 


As long as the
Notes are in global form, the Principal Paying Agent (in lieu of the Trustee)
shall be responsible for:


 


(i)                                     paying
sums due on the Global Notes; and


 


(ii)                                  arranging
on behalf of and at the expense of the Company for notices in respect of Notes
to be communicated to Holders of Notes in accordance with the terms of this
Indenture.  Each reference in this
Indenture to the performance of duties set forth in clauses (i) and (ii),
above, by the Trustee includes performance of such duties by the Principal
Paying Agent in respect of Notes.


 


SECTION 2.2.   Execution and Authentication.  One Officer of the Company shall sign, or
one member of the Board of Directors of the Company shall sign, the Notes by
manual or facsimile signature.


 


If an Officer
or member of the Board of Directors of the Company whose signature is on a Note
was an Officer or member of the Board of Directors of the Company at the time
of such execution but no longer holds that office or position at the time the
Trustee authenticates the Note, the Note shall be valid nevertheless.


 


A Note shall
not be valid until an authorized signatory of the Trustee manually signs the
certificate of authentication on the Note. 
The signature shall be conclusive evidence that the Note has been
authenticated under this Indenture.


 


Except as
otherwise provided herein, the aggregate principal amount of Notes which may be
outstanding at any time under this Indenture is not limited in amount.  The Trustee shall authenticate such Notes
which shall consist of (i) Initial Notes for original issue on the Issue Date
in an aggregate principal amount not to exceed €166,028,000, and (ii)
Additional Notes from time to time for issuance after the Issue Date to the
extent otherwise permitted hereunder (including, without limitation, under
Section 4.3), in each case upon receipt of a Company Order in the form of an
Officer’s Certificate.  Additional Notes
will be treated as the Original Notes for all purposes under this Indenture,
including, without limitation, for purposes of waivers, amendments, redemptions
and offers to purchase.  Such Company
Order shall specify the aggregate principal amount of Notes to be
authenticated, the date on which the Notes are to be authenticated, the issue
price and the date from which interest on such Notes shall accrue, whether the
Notes are to be Original Notes or Additional Notes, whether the Notes are to be
issued as Definitive Notes or Global Notes and whether or not the Notes shall
bear the Private Placement Legend, or such other information as the Trustee may
reasonably request.  In authenticating
the


 


28

















 


Notes, the Trustee shall be
entitled to receive, and shall be fully protected in relying upon, an Opinion
of Counsel to the effect that the conditions precedent provided for in this
Indenture which relate to the authentication and delivery of the Notes have
been satisfied.  Upon receipt of a
Company Order, the Trustee shall authenticate Notes in substitution of Notes
originally issued to reflect any name change of the Company.


 


The Trustee
may appoint an authenticating agent (“Authenticating Agent”), at the Company’s
expense, reasonably acceptable to the Company to authenticate Notes.  Unless otherwise provided in the
appointment, an Authenticating Agent may authenticate Notes whenever the
Trustee may do so.  Each reference in
this Indenture to authentication by the Trustee includes authentication by such
Authenticating Agent.  An Authenticating
Agent has the same rights as an Agent to deal with the Company and Affiliates
of the Company.


 


The Notes
shall be issuable only in denominations of €1,000 and any
integral multiples thereof.


 


SECTION 2.3.   Registrar and Paying Agent.  The Company shall maintain an office or
agency in London, England, where (a) Definitive Notes, if any, may be presented
or surrendered for registration of transfer or for exchange (such office or
agency, the “Registrar”) (b) Global Notes (and Definitive Notes, if
issued) may be presented or surrendered for payment (such office or agency, the
“Paying
Agent”) and (c) notices and demands in respect of such Global Notes
(and Definitive Notes, if issued) and this Indenture may be served.  In the event that Definitive Notes
representing Notes are issued, (a) Definitive Notes may be presented or
surrendered for registration of transfer or for exchange, (b) Definitive Notes
may be presented or surrendered for payment and (c) notices and demands in
respect of such Definitive Notes and this Indenture may be served at an office
of the Registrar or Principal Paying Agent, as applicable, in London, England.  The Registrar shall keep a register of the
Definitive Notes, if any, and of their transfer and exchange.


 


In addition,
for so long as any Notes are listed on the Luxembourg Stock Exchange and the
rules of such stock exchange so require, the Company shall have appointed a
Person located in Luxembourg which is reasonably acceptable to the Trustee as
an additional paying agent and transfer agent for the relevant series of
Notes.  The Company will, to the extent
practicable, maintain a paying agent in a European Union member state that will
not be obliged to withhold or deduct tax pursuant to the Directive.


 


The Company
may change the Paying Agent or Registrar for the Notes without prior notice to
the Holders of such Notes.  However, if
and for so long as the Notes are listed on the Luxembourg Stock Exchange and
the rules of such exchange so require, the Company will publish notice of the
change in the Paying Agent and Registrar in a daily newspaper with general
circulation in Luxembourg (which is expected to be the Luxemburger Wort) or (in the case of Definitive
Notes) in addition to such publication, mailed by first-class mail to each
Holder’s registered address.


 


The Company,
upon written notice to the Trustee, may appoint one or more co-Registrars and
one or more additional Paying Agents reasonably acceptable to the Trustee.  The term “Registrar”


 


29

















 


includes any co-Registrar and
the term “Paying Agent” includes any additional Paying Agent.  The Company initially appoints (i) The Bank
of New York, London, as Registrar and Principal Paying Agent, and (ii)
Kredietbank S.A. Luxembourgeoise as an additional Paying Agent and transfer
agent, in each case until such time as either such entity has resigned or a
successor has been appointed.


 


In respect of
Definitive Notes, if any, payment of principal will be made upon the surrender
of such Definitive Notes at the office of the Paying Agent, including, if any,
the Paying Agent in Luxembourg.  In the
case of a transfer of a Definitive Note in part, upon surrender of the
Definitive Note to be transferred, a Definitive Note shall be issued to the
transferee in respect of the principal amount transferred and a Definitive Note
shall be issued to the transferor in respect of the balance of the principal amount
of the transferred Definitive Note at the office of any transfer agent,
including, if any, the transfer agent in Luxembourg.  In all circumstances, the Company shall ensure that the Paying
Agents shall be located outside Ireland.


 


For the
avoidance of doubt, upon the issuance of Definitive Notes, if any, Holders will
be able to receive principal on the Notes and will be able to transfer
Definitive Notes at the Luxembourg office of such paying and transfer agent,
subject to the right of the Company to mail payments in accordance with the
terms of this Indenture.


 


SECTION 2.4.   Paying Agent To Hold Assets in Trust.  The Company shall require each Paying Agent
other than the Trustee, the Principal Paying Agent and the Luxembourg Paying
Agent to agree in writing that each Paying Agent shall hold in trust for the
benefit of Holders or the Trustee all assets held by the Paying Agent for the
payment of principal of, Additional Amounts, if any, premium, if any, or
interest on, the Notes, and shall notify the Trustee of any Default by the
Company or any Guarantor in making any such payment.  The Company at any time may require a Paying Agent to distribute
all assets held by it to the Trustee and account for any assets disbursed and
the Trustee may at any time during the continuance of any payment Default, upon
written request to a Paying Agent, require such Paying Agent to distribute all
assets held by it to the Trustee and to account for any assets
distributed.  Upon distribution to the
Trustee of all assets that shall have been delivered by the Company to the
Paying Agent, the Paying Agent shall have no further liability for such assets.


 


SECTION 2.5.   List of Holders.  In the event that Definitive Notes are
issued, the Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Holders of Notes.  If the Trustee is not
the Registrar, the Company shall furnish to the Trustee before each Record Date
and at such other times as the Trustee may request in writing a list as of such
date and in such form as the Trustee may reasonably require of the names and
addresses of Holders of Notes, which list may be conclusively relied upon by
the Trustee.


 


SECTION 2.6.   Book-Entry Provisions for Global Notes.  ii) The Global Notes initially shall (i) be
issued in bearer form, (ii) be delivered to the relevant Book-Entry Depositary
or its custodian as described in Section 2.1 and (iii) bear legends to the
extent required by Section 2.7(g).


 


30

















 


(a)                                  Notwithstanding
any other provisions of this Indenture, the relevant Deposit Agreement will
provide that Global Notes may not be transferred except (i) as a whole by the
relevant Book-Entry Depositary to a nominee or custodian of such Book-Entry
Depositary or by a nominee or custodian of such Book-Entry Depositary to such
Book-Entry Depositary or, in each case, to another successor of such Book-Entry
Depositary or a nominee or custodian of such successor and (ii) in connection
with transfers, exchanges and cancellations pursuant to Sections 2.7, 2.8 or
2.12 hereof or in accordance with the relevant Deposit Agreement.  The Deposit Agreement, as agreed by the
parties thereto, provide that transfer of all or any portion of the Depositary
Interests may only be made through the book-entry system maintained by the
relevant Book-Entry Depositary and, unless and until the relevant Book-Entry
Interests are exchanged for Definitive Notes, the Depositary Interests held by
a Clearing Agency (including, where relevant, through the Common Depositary)
may not be transferred except as a whole by a Clearing Agency to a nominee of a
Clearing Agency or by a nominee of a Clearing Agency to a Clearing Agency or
another nominee of a Clearing Agency or by a Clearing Agency or any nominee to
a successor of a relevant Clearing Agency or a nominee of the successor.  Global Notes may be transferred or exchanged
for Definitive Notes in accordance with the rules and procedures of the
relevant Clearing Agency and the provisions of this Section 2.6.  All Global Notes shall be exchanged by the
Company (with authentication by the Trustee upon receipt of a Company Order)
for one or more Definitive Notes, if (a) any Clearing Agency notifies the Company
at any time that it is unwilling or unable to continue as depositary for
Depositary Interests representing the Global Notes and a successor depositary
is not appointed within 90 days of such notification, (b) the Book-Entry
Depositary notifies the Company at any time that it is unwilling or unable to
continue as book-entry depositary and a successor book-entry depositary is not
appointed by the Company within 90 days, (c) any Clearing Agency so requests
following an Event of Default hereunder or (d) in whole (but not in part) at
any time if the Company in its sole discretion determines and notifies the
Trustee in writing that it elects to cause the issuance of Definitive
Notes.  If an Event of Default occurs
and is continuing, the Company shall, at the written request of the Holder
thereof, exchange all or part of a Global Note for one or more Definitive Notes
(with authentication by the Trustee upon receipt of a Company Order); provided,
however, that the principal amount at maturity of such Definitive Notes
and such Global Note after such exchange shall be, in each case, €1,000 or integral multiples
thereof.  Whenever all of a Global Note
is exchanged for one or more Definitive Notes, it shall be surrendered by the
Holder thereof to the Trustee for cancellation.  Whenever a part of a Global Note is exchanged for one or more
Definitive Notes, the Global Note shall be surrendered by the Holder thereof to
the Trustee who shall cause an adjustment to be made to Schedule A of such
Global Note such that the principal amount of such Global Note will be equal to
the portion of such Global Note not exchanged and shall thereafter return such
Global Note to such Holder.  Exchanges
of Global Notes for Definitive Notes shall be made at no expense to holders of
Book-Entry Interests or the Trustee.  A
Global Note may not be exchanged for a Definitive Note other than as provided
in this Section 2.6(b).  Every Note
authenticated and delivered in exchange for or in lieu of a Global Note, or any
portion thereof, pursuant to Section 2.8, 2.11 or 3.8 or otherwise, shall be
authenticated and delivered in the form of, and shall be, a Global Note.


 


(b)                                 In
connection with the transfer of a Global Note as an entirety to beneficial
owners pursuant to paragraph (b) of this Section 2.6, a Global Note shall be
deemed to be surrendered


 


31

















 


to the Trustee for
cancellation, and the Company shall execute, and the Trustee shall upon written
instructions from the Company authenticate and make available for delivery, to
each beneficial owner identified by the relevant Book-Entry Depositary in
exchange for its beneficial interest in the Global Notes, an equal aggregate
principal amount of Definitive Notes of authorized denominations.


 


(c)                                  Transfer
and exchange of Global Notes shall be by delivery, but each Global Note issued
and authenticated hereunder shall be in bearer form and shall initially be
delivered to the Book-Entry Depositary or its custodian, and each such Global
Note shall constitute a single note for all purposes of this Indenture.  In all cases, Definitive Notes delivered in
exchange for any Depositary Interests representing Global Notes will be
registered in the names, and issued in any approved denominations, requested by
or on behalf of the relevant Clearing Agency or its nominee in accordance with its
customary procedures.  In no event will
Definitive Notes in bearer form be issued.


 


(d)                                 Any
Definitive Note delivered in exchange for an interest in a Global Note Pursuant
to paragraph (b) of this Section 2.6 shall, except as otherwise provided by
Section 2.8, bear the Private Placement Legend.


 


SECTION 2.7.   Registration of Transfer and Exchange.  iii) Notwithstanding any provision to the
contrary herein, so long as a Note remains outstanding, transfers of beneficial
interests in Global Notes or transfers of Definitive Notes, in whole or in
part, shall be made only in accordance with this Section 2.7.


 


(a)                                  If
a holder of a Book-Entry Interest in a Rule 144A Global Note wishes at any time
to exchange its interest in such Rule 144A Global Note for an interest in the
Regulation S Global Note, or to transfer its interest in such Rule 144A Global
Note to a Person who wishes to take delivery thereof in the form of an interest
in such Regulation S Global Note, such holder may, subject to the rules and
procedures of the relevant Clearing Agency, to the extent applicable, and
subject to the requirements set forth in the following sentence, exchange or
cause the exchange or transfer or cause the transfer of such interest for an
equivalent Book-Entry Interest in such Regulation S Global Note.  Upon (1) written instructions given in
accordance with the procedures of the Clearing Agency, to the extent
applicable, from or on behalf of a holder of a Book-Entry Interest in the relevant
Rule 144A Global Note, directing the credit of a Book-Entry Interest in the
corresponding Regulation S Global Note in an amount equal to the Book-Entry
Interest in the Rule 144A Global Note to be exchanged or transferred, (2) a
written order given in accordance with the procedures of the Clearing Agency,
to the extent applicable, containing information regarding the account to be
credited with such increase and the name of such account and (3) receipt by the
relevant Book-Entry Depositary of a certificate in the form of Exhibit C
given by the holder of such Book-Entry Interest stating that the exchange or
transfer of such interest has been made pursuant to and in accordance with Rule
903 or Rule 904 of Regulation S or with Rule 144 under the Securities Act, the
Book-Entry Depositary shall present the relevant Initial Global Notes to the
Trustee or its agent to reduce the principal amount of the relevant Rule 144A
Global Note and to increase the principal amount of the corresponding
Regulation S Global Note by the principal amount of the beneficial interest in
the Rule 144A Global Note to be so transferred or exchanged by annotation
thereon or in the records of the Trustee (and an appropriate


 


32

















 


notation shall be made by the
Trustee thereon or in the records of the Trustee).  The Trustee or its agent shall then promptly deliver appropriate
instructions to the Clearing Agency to reduce or reflect on its records a
reduction of the Book-Entry Interests in the relevant Rule 144A Global Note by
the aggregate principal amount of the interest in such Rule 144A Global Note to
be so exchanged or transferred from the relevant participant, and the Trustee
shall promptly deliver appropriate instructions to the Clearing Agency
concurrently with such reduction, to increase or reflect on its records an
increase of the principal amount of Book-Entry Interests in such Regulation S
Global Note by the aggregate principal amount of the interests in such Rule
144A Global Note to be so exchanged or transferred, and to credit or cause to
be credited to the account of the Person specified in such instructions a
Book-Entry Interest in such Regulation S Global Note equal to the reduction in
the principal amount of such Book-Entry Interests in the relevant Rule 144A
Global Note.


 


(b)                                 If
a holder of a Book-Entry Interest in a Regulation S Global Note wishes at any
time to exchange its interest in such Regulation S Global Note for an interest
in the Rule 144A Global Note, or to transfer its interest in such Regulation S
Global Note to a Person who wishes to take delivery thereof in the form of an
interest in such Rule 144A Global Note, such holder may, subject to the rules
and procedures of the relevant Clearing Agency, to the extent applicable, and
to the requirements set forth in the following sentence, exchange or cause the
exchange or transfer or cause the transfer of such interest for an equivalent
Book-Entry Interest in such Rule 144A Global Note.  Upon (1) written instructions given in accordance with the
procedures of the Clearing Agency, to the extent applicable, from or on behalf
of a holder of a Book-Entry Interest in the relevant Regulation S Global Note
directing the credit of a Book-Entry Interest in the corresponding Rule 144A
Global Note in an amount equal to the Book-Entry Interest in the Regulation S
Global Note to be exchanged or transferred, (2) a written order given in
accordance with the procedures of the Clearing Agency, to the extent
applicable, containing information regarding the account to be credited with such
increase and the name of such account and (3) if during the period prior to or
on the 40th day after the later of the commencement of the offering of the
Notes and the relevant Note Issue Date (the “Restricted Period”), receipt
by the relevant Book-Entry Depositary of a certificate in the form of Exhibit
D given by the holder of such Book-Entry Interest and stating that the
Person transferring such interest in such Regulation S Global Note reasonably
believes that the Person acquiring such interest in such Rule 144A Global Note
is a Qualified Institutional Buyer and is obtaining such Book-Entry Interest in
a transaction meeting the requirements of Rule 144A and any applicable
securities laws of any state of the United States or any other jurisdiction, the
Book-Entry Depositary shall present the relevant Initial Global Notes to the
Trustee or its agent to reduce the principal amount of the relevant Regulation
S Global Note and to increase the principal amount of the corresponding Rule
144A Global Note by the principal amount of the beneficial interest in the
Regulation S Global Note to be so transferred or exchanged by annotation
thereon (and an appropriate notation shall be made thereon by the
Trustee).  The Trustee or its agent
shall then promptly deliver appropriate instructions to the Clearing Agency to
reduce or reflect on its records a reduction of the Book-Entry Interests in the
relevant Regulation S Global Note by the aggregate principal amount of the
interest in such Regulation S Global Note to be exchanged or transferred, and
the Trustee shall promptly deliver appropriate instructions to the Clearing
Agency concurrently with such reduction, to increase or reflect on its records
an increase of the principal amount of Book-Entry


 


33

















 


Interests in such Rule 144A
Global Note by the aggregate principal amount of the interest in such
Regulation S Global Note to be so exchanged or transferred, and to credit or
cause to be credited to the account of the Person specified in such
instructions a Book-Entry Interest in such Rule 144A Global Note equal to the
reduction in the principal amount of such Book-Entry Interests in the
Regulation S Global Note.  After the
expiration of the Restricted Period, the certification requirement set forth in
clause (3) of the second sentence of this Section 2.7(c) will no longer apply
to such transfers.


 


(c)                                  Any
Book-Entry Interest in one of the Global Notes that is transferred to a Person
who takes delivery in the form of an interest in another Global Note will, upon
transfer, cease to be an interest in such Global Note and become an interest in
the other Global Note and, accordingly, will thereafter be subject to all
transfer restrictions and other procedures applicable to Book-Entry Interests
in such other Global Note for as long as it remains such an interest.


 


(d)                                 In
the event that a Global Note is exchanged for Definitive Notes, pursuant to
Section 2.6(b), or a Definitive Note is exchanged for another such Definitive
Note, or a Definitive Note is exchanged for a Book-Entry Interest in a Global
Note, such Notes may be exchanged or transferred for one another only in
accordance with (i) such procedures as are substantially consistent with the
provisions of Sections 2.7(b) and (c) above (including the certification
requirements intended to ensure that such exchanges or transfers comply with
Rule 144, Rule 144A or Regulation S, as the case may be) and as may be from
time to time adopted by the Company and the Trustee.


 


(e)                                  Prior
to the expiration of the Restricted Period, beneficial interests in the
Regulation S Global Note may not be transferred to a U.S. Person or for the
account or benefit of a U.S. Person except to a person whom the transferor
reasonably believes is purchasing or acquiring such beneficial interest for its
own account or for the account or accounts as to which it exercises sole
investment discretion and is a QIB and otherwise in a transaction meeting the
requirements of Rule 144A and in accordance with all applicable securities laws
of any state of the United States or any other jurisdiction and in accordance
with the requirements of this Indenture. 
Until the expiration of the Restricted Period, Book-Entry Interests in
the Regulation S Global Notes may only be held through Euroclear and
Clearstream.


 


(f)                                    Each
Initial Note issued hereunder, including each Note issued in exchange therefor,
unless such Note is sold or exchanged pursuant to an effective registration
statement under the Securities Act, shall, upon issuance, bear the following
legend (the “Private Placement Legend”):


 


“THIS NOTE OF
WATERFORD WEDGWOOD PLC HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE “U.S. SECURITIES ACT”), OR ANY OTHER SECURITIES LAWS OF
ANY STATE OR OTHER JURISDICTION. 
NEITHER THIS NOTE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED
OF IN THE ABSENCE OF SUCH REGISTRATION UNLESS THE TRANSACTION IS EXEMPT FROM,
OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE U.S. SECURITIES ACT.


 


34

















 


THE HOLDER OF
THIS NOTE BY ITS ACCEPTANCE HEREOF (1) AGREES THAT IT WILL NOT PRIOR TO (X) THE
DATE WHICH IS TWO YEARS (OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE
144(k) UNDER THE U.S. SECURITIES ACT OR ANY SUCCESSOR PROVISION THEREUNDER)
AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF (OR OF ANY PREDECESSOR OF
THIS NOTE) OR THE LAST DAY ON WHICH WATERFORD WEDGWOOD PLC OR ANY AFFILIATE OF
WATERFORD WEDGWOOD PLC WAS THE OWNER OF THIS NOTE (OR ANY PREDECESSOR OF THIS
NOTE) AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW
(THE “RESALE RESTRICTION TERMINATION DATE”), OFFER, SELL OR OTHERWISE TRANSFER
THIS NOTE EXCEPT (A) TO WATERFORD WEDGWOOD PLC, (B) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE U.S. SECURITIES ACT, (C)
FOR SO LONG AS THIS NOTE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
U.S. SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED
INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE U.S. SECURITIES ACT THAT
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A UNDER THE U.S. SECURITIES ACT, (D) PURSUANT TO OFFERS AND SALES TO
NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF
REGULATION S UNDER THE U.S. SECURITIES ACT OR (E) PURSUANT TO ANY OTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE U.S. SECURITIES
ACT, AND (2) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS NOTE IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND; PROVIDED THAT
WATERFORD WEDGWOOD PLC, THE TRUSTEE AND THE REGISTRAR SHALL HAVE THE RIGHT
PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D) PRIOR TO THE
END OF THE 40-DAY DISTRIBUTION COMPLIANCE PERIOD WITHIN THE MEANING OF
REGULATION S UNDER THE U.S. SECURITIES ACT OR PURSUANT TO CLAUSE (E) PRIOR TO
THE RESALE RESTRICTION TERMINATION DATE TO REQUIRE THAT AN OPINION OF COUNSEL,
CERTIFICATIONS AND/OR OTHER INFORMATION SATISFACTORY TO WATERFORD WEDGWOOD PLC,
THE TRUSTEE AND THE REGISTRAR IS COMPLETED AND DELIVERED BY THE TRANSFEROR.  THIS LEGEND WILL BE REMOVED UPON THE REQUEST
OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.  AS USED HEREIN, THE TERMS “OFFSHORE
TRANSACTION”, “UNITED STATES” AND “U.S. PERSON” HAVE THE MEANINGS GIVEN TO THEM
BY REGULATION S UNDER THE U.S. SECURITIES ACT.”


 


The Private
Placement Legend shall not be removed from such Note except as provided in this
Section 2.7(g).  The Private Placement
Legend shall be removed from a Note as provided by and in accordance with the
terms of the penultimate sentence of the Private Placement Legend.  Upon the satisfaction of the terms of such
sentence, the Trustee, upon receipt of a Company Order, shall authenticate and
deliver in exchange for such Note another Note or Notes having an equal aggregate
principal amount that does not bear such legend.  If the Private Placement Legend has been removed from a Note as
provided above, no other Note issued in exchange for all or any part


 


35

















 


of such Note shall bear such
legend, unless the Company has reasonable cause to believe that such other Note
is a “restricted security” within the meaning of Rule 144 and instructs the
Trustee to cause a legend to appear thereon.


 


(g)                                 By
its acceptance of any Note bearing the Private Placement Legend, each Holder of
such a Note acknowledges the restrictions on transfer of such Note set forth in
this Indenture and in the Private Placement Legend and that such restrictions
also apply to transfers of any beneficial interests in these Notes and agrees
that it will transfer such Note only as provided in this Indenture.


 


Neither the
Trustee nor any Agent shall have any obligation or duty to monitor, determine
or inquire as to compliance with any restrictions on transfer imposed under
this Indenture or under applicable law with respect to any transfer of any
interest in any Note (including any transfers between or among Agent Members of
a relevant Clearing Agency or beneficial owners of interests in any Global
Note) other than to require delivery of such certificates and other
documentation or evidence as are expressly required by, and to do so if and
when expressly required by the terms of, this Indenture, and to examine the
same to determine substantial compliance as to form with the express
requirements hereof.


 


The Registrar
and each Book-Entry Depositary shall retain copies of all letters, notices and
other written communications received pursuant to Section 2.6 or this Section
2.7.  The Company shall have the right
to inspect and make copies of all such letters, notices or other written
communications at any reasonable time upon the giving of reasonable written
notice to the Registrar.


 


(h)                                 Definitive
Notes shall be transferable only upon the surrender of a Definitive Note for
registration of transfer.  When a Definitive
Note is presented to the Registrar or a co-registrar with a request to register
a transfer, the Registrar shall register the transfer as requested if its
requirements for such transfers and the requirements of this Indenture are met.  When Definitive Notes are presented to the
Registrar or a co-registrar with a request to exchange them for an equal
principal amount of Definitive Notes of other denominations, the Registrar
shall make the exchange as requested if the same requirements are met.  To permit registration of transfers and
exchanges, the Company shall execute and, upon receipt of a Company Order, the
Trustee shall authenticate Definitive Notes at the Registrar’s or
co-registrar’s request.


 


(i)                                     The
Company shall not be required to make, and the Registrar need not register
transfers or exchanges of, Definitive Notes (i) that have been selected for
redemption (except, in the case of Definitive Notes to be redeemed in part, the
portion thereof not to be redeemed) or (ii) for a period of 15 days prior to a
selection of Definitive Notes to be redeemed.


 


(j)                                     Prior
to the due presentation for registration of transfer of any Definitive Note,
the Company, any Guarantor, the Trustee, the Paying Agent, the Registrar or any
co-registrar may deem and treat the Person in whose name a Definitive Note is
registered as the absolute owner of such Definitive Note for the purpose of
receiving payment of principal, premium, if any, interest, or Additional
Amounts, if any, on such Definitive Note and for all other purposes whatsoever,
whether or not such Definitive Note is overdue, and none of the Company, any
Guarantor, the


 


36

















 


Trustee, the Paying Agent, the
Registrar or any co-registrar shall be affected by notice to the contrary.


 


(k)                                  (A)
A Book-Entry Interest related to any Global Note that is a Restricted Global
Note may be exchanged by any holder thereof for a Book-Entry Interest related
to an Unrestricted Global Note, or transferred to a Person who takes delivery
thereof in the form of a Book-Entry Interest related to an Unrestricted Global
Note only in circumstances where, in relation to such Book-Entry Interests, the
conditions for the removal of the Private Placement Legend set forth in Section
2.7(g) are satisfied.


 


(B)                                If
a holder of a Book-Entry Interest related to a Restricted Global Note wishes at
any time to exchange its interest in such Restricted Global Note for an
interest in an Unrestricted Global Note in accordance with the terms of this
Indenture, or to transfer its interest in such Restricted Global Note to a
Person who wishes to take delivery thereof in the form of an interest in such
Unrestricted Global Note, such holder may, subject to the rules and procedures
of the relevant Clearing Agency, to the extent applicable, and subject to the
requirements set forth in the following sentence, exchange or cause the
exchange or transfer or cause the transfer of such interest for an equivalent
Book-Entry Interest in such Unrestricted Global Note, as applicable.  Upon (1) written instructions given in
accordance with the procedures of the Clearing Agency, to the extent
applicable, from or on behalf of a holder of a Book-Entry Interest in the
relevant Restricted Global Note, directing the credit of a Book-Entry Interest
related to the Unrestricted Global Note in an amount equal to the Book-Entry
Interest related to the Restricted Global Note to be exchanged or transferred,
(2) a written order given in accordance with the provisions of the relevant
Deposit Agreement, the procedures of the Clearing Agency, to the extent
applicable, containing information regarding the account to be credited with
such increase and the name of such account and (3) receipt by the relevant
Book-Entry Depositary of a certificate stating that the exchange or transfer of
such interest has been made pursuant to and in accordance with this Indenture,
the Book-Entry Depositary shall present the relevant Global Notes to the
Trustee or its agent to reduce the principal amount of the relevant Restricted
Global Note and to increase the principal amount of the corresponding
Unrestricted Global Note by the principal amount of the beneficial interest in
the Restricted Global Note to be so transferred by annotation thereon or in the
records of the Trustee (and an appropriate notation shall be made by the
Trustee thereon or in the records of the Trustee).


 


(l)                                     No
service charge will be made for any registration or transfer or exchange of the
Notes, but the Trustee, any Paying Agent and and any transfer agent, including
the transfer agent in Luxembourg, may require payment by a transferor of a sum
sufficient to pay all taxes or other governmental charges in connection with
any transfer or exchange pursuant to this Section 2.7.


 


(m)                               All
Notes issued upon any transfer or exchange pursuant to the terms of this
Indenture will evidence the same debt and will be entitled to the same benefits
under this Indenture as the Notes surrendered upon such transfer or exchange.


 


(n)                                 The
Registrar shall effect and register, upon receipt of a written request from the
Company to do so, a transfer not otherwise provided for by this Section 2.7,
such registration to be done in accordance with the otherwise applicable
provisions of Section 2.7, upon the furnishing


 


37

















 


by the proposed transferor or
transferee to the Company and the Trustee of a written opinion of counsel
(which opinion and counsel are satisfactory to the Company and the Trustee) to
the effect that, and/or such other certifications or information as the Company
and the Trustee may require to confirm that, the proposed transfer is being
made pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act.


 


SECTION 2.8.  Replacement Notes.  If a mutilated Definitive Note is
surrendered to the Registrar, if a mutilated Global Note is surrendered to the
Company or if the Holder of a Note provides evidence to the reasonable
satisfaction of the Company and the Trustee that such Note has been lost,
destroyed or wrongfully taken, the Company shall issue and, upon receipt of a
Company Order, the Trustee shall authenticate a replacement Note in such form
as the Note being replaced if the requirements of the Trustee, the Registrar,
the Company and any Guarantor are met. 
If required by the Trustee, the Registrar or the Company, such Holder
must provide an indemnity bond or other indemnity, sufficient in the judgment
of the Company, the Registrar and the Trustee, to protect the Company and any
Guarantor, the Registrar, the Trustee and any Agent from any loss which any of
them may suffer if a Note is replaced. 
The Company may charge such Holder for any tax or other governmental
charge that may be imposed on or in relation to the issuance of any replacement
Note and for its reasonable, out-of-pocket expenses in replacing a Note,
including reasonable fees and expenses of counsel and of the Trustee.  If any such mutilated, lost, destroyed or wrongfully
taken Note has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a replacement Note, pay such Note.  Every replacement Note is an additional
obligation of the Company and any Guarantor. 
The provisions of this Section 2.8 are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement of mutilated, destroyed, lost or wrongfully taken Notes.


 


SECTION 2.9.  Outstanding Notes.  The Notes outstanding at any time under this
Indenture are all the Notes that have been authenticated by the Trustee except
those cancelled by it, those delivered to it for cancellation, those reductions
in the Global Note effected in accordance with the provisions hereof and those
described in this Section as not outstanding. 
Subject to Section 2.10, a Note does not cease to be outstanding because
the Company or any of its Affiliates holds the Note.


 


If a Note is
replaced pursuant to Section 2.8 (other than a mutilated Note surrendered for
replacement), it ceases to be outstanding unless a Responsible Officer of the
Trustee receives proof satisfactory to it and the Company that the replaced
Note is held by a bona fide purchaser. 
A mutilated Note ceases to be outstanding upon surrender of such Note
and replacement thereof pursuant to Section 2.8.


 


If the
principal amount of any Note is considered paid under Section 4.1, it ceases to
be outstanding and interest and Additional Amounts, if any, on it cease to
accrue.


 


If on a
Redemption Date or the Maturity Date the Paying Agent holds cash in euro
sufficient to pay all of the principal, premium, if any, interest, and
Additional Amounts, if any, due on the Notes payable on that date, then on and
after that date such Notes cease to be outstanding and interest, and Additional
Amounts, if any, on such Notes cease to accrue.


 


38

















 


SECTION 2.10.   Treasury Notes.  In determining whether the Holders of the
required principal amount of Notes have concurred in any direction, waiver or
consent, Notes owned by the Company or its Affiliates shall be disregarded,
except that, for the purposes of determining whether the Trustee shall be
protected in relying on any such direction, waiver or consent, only Notes that
a Responsible Officer of the Trustee actually knows are so owned shall be
disregarded.


 


For purposes
of determining whether such Holders have so concurred, the Trustee may require
an Officer’s Certificate of the Company listing Notes owned by the Company, a
Subsidiary of the Company or (to the Company’s knowledge) an Affiliate of the
Company.


 


SECTION 2.11.   Temporary Notes.  In the event that Definitive Notes become
issuable under the Indenture, until permanent Definitive Notes are ready for
delivery, the Company may prepare and the Trustee shall authenticate temporary
Definitive Notes upon receipt of a Company Order in the form of an Officer’s
Certificate.  The Officer’s Certificate
shall specify the amount of temporary Definitive Notes to be authenticated and
the date on which the temporary Definitive Notes are to be authenticated.  Temporary Definitive Notes shall be
substantially in the form of permanent Definitive Notes but may have variations
that the Company considers appropriate for temporary Definitive Notes.  Without unreasonable delay, the Company
shall prepare and the Trustee shall authenticate upon receipt of a Company
Order pursuant to Section 2.2 permanent Definitive Notes in exchange for
temporary Definitive Notes.  Holders of
temporary Definitive Notes shall be entitled to all of the benefits of this
Indenture.


 


SECTION 2.12.   Cancellation.  The Company at any time may deliver Notes to
the Trustee for cancellation.  The
Registrar and the Paying Agent shall forward to the Trustee any Notes
surrendered to them for transfer, exchange or payment.  The Trustee, or at the direction of the
Trustee, the Registrar or the Paying Agent, and no one else, shall cancel and,
at the written direction of the Company, shall dispose of (subject to the
record retention requirements of the Exchange Act) all Notes surrendered for
transfer, exchange, payment or cancellation; provided, however, that the Trustee may, but shall not be required to, destroy
such canceled Notes.  Subject to Section
2.7, the Company may not issue new Notes to replace Notes that it has paid or
delivered to the Trustee for cancellation. 
If the Company shall acquire any of the Notes, such acquisition shall
not operate as a redemption or satisfaction of the Indebtedness represented by
such Notes unless and until the same are surrendered to the Trustee for
cancellation pursuant to this Section 2.12.


 


SECTION 2.13.   Defaulted Interest.  If the Company defaults in a payment of
interest on the Notes, it shall pay the defaulted interest, plus (to the extent
lawful) any interest payable on the defaulted interest, to the Holders
thereof.  If such default in payment of
interest continues for 30 days, the Company shall (in the case of Definitive
Notes) establish a subsequent special Record Date, which date shall be the
fifteenth day next preceding the date fixed by the Company for the payment of
defaulted interest.  If no special
Record Date is required to be established pursuant to the immediately preceding
sentence, (i) in the case of Definitive Notes, Holders of record on the
original Record Date shall be entitled to such payment of defaulted interest
and any such interest payable on the defaulted interest and (ii) in the case of
Global Notes, Holders on the Default Interest Payment Date (as defined in the
next sentence) shall be entitled to such payment


 


39

















 


of defaulted interest and any
such interest payable on the defaulted interest.  The Company shall notify the Trustee and Paying Agent in writing
of the amount of defaulted interest proposed to be paid on each Note and the
date of the proposed payment (a “Default Interest Payment Date”), and at
the same time the Company shall deposit with the Trustee or Paying Agent an
amount of money equal to the aggregate amount proposed to be paid in respect of
such defaulted interest or shall make arrangements reasonably satisfactory to
the Trustee or Paying Agent for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit of the
Persons entitled to such defaulted interest as provided in this Section 2.13; provided,
however, that in no event shall the Company
deposit monies proposed to be paid in respect of defaulted interest later than
10:00 a.m. London time on the proposed Default Interest Payment Date with
respect to defaulted interest to be paid on the Note.  In the case of Definitive Notes, at least 15 days before the
subsequent special Record Date, if applicable, the Company shall publish, if
and so long as the Notes are listed on the Luxembourg Stock Exchange and the
rules of such stock exchange shall so require, in a leading newspaper having a
general circulation in Luxembourg (which is expected to be the Luxemburger
Wort) and, in addition to such publication, mail by first-class mail
to each Holder’s registered address, with a copy to the Trustee, a notice that
states the subsequent special Record Date, the payment date and the amount of
defaulted interest.  In the case of
Global Notes, at least 15 days before the Default Interest Payment Date, the
Company shall publish if and so long as the Notes are listed on the Luxembourg
Stock Exchange and the rules of such stock exchange shall so require in a
leading newspaper having a general circulation in Luxembourg (which is expected
to be the Luxemburger
Wort), with a copy to the Trustee, a notice that states the Default
Interest Payment Date, the payment date and the amount of defaulted interest to
be paid.


 


SECTION 2.14.   CUSIP, ISIN and Common Code Numbers.  The Company in issuing the Notes may use a
“CUSIP”, “ISIN” or “Common Code” number, and if so, the Trustee may use the
CUSIP, ISIN and Common Code number in notices of redemption or exchange that
are made at the Company’s request as a convenience to Holders; provided,
however, that any
such notice may state that no representation is made as to the correctness or
accuracy of the CUSIP, ISIN and Common Code number printed in the notice or on
the Notes, and that reliance may be placed only on the other identification
numbers printed on the Notes.  The
Company shall promptly notify the Trustee in writing of any change in any
CUSIP, ISIN or Common Code number.


 


SECTION 2.15.   Deposit of Moneys.  On or prior to 10:00 am London time on each
interest payment date and on the Maturity Date, the Company shall deposit with
the Trustee or its designated Paying Agent (which shall be the Principal Paying
Agent unless otherwise notified to the Company by the Trustee) in immediately
available funds money sufficient to make cash payments, if any, due on such
interest payment date or Maturity Date, as the case may be, on all Notes then
outstanding.  Such payments shall be
made by the Company in a timely manner which permits the Paying Agent to remit
payment to the Holders on such interest payment date or Maturity Date, as the
case may be.


 


SECTION 2.16.   Certain Matters Relating to Global Notes.  iv) Neither the Company, any Guarantor nor
the Trustee nor any of their respective agents shall have any responsibility or


 


40

















 


liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Global Note or a Depositary Interest, or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests.  Members of or participants
in a Clearing Agency (“Agent
Members”) shall have
no rights under this Indenture with respect to any Global Note held by the
Book-Entry Depositary or its custodian, or under such Global Note, and the
Book-Entry Depositary or its custodian may be treated by the Company, any
Guarantor, the Trustee and any agent of the Company, any Guarantor or the
Trustee as the absolute owner of such Global Note for all purposes whatsoever.  Notwithstanding the foregoing, nothing
herein shall prevent the Company, any Guarantor, the Trustee or any agent of
the Company, any Guarantor, or the Trustee from giving effect to any written
certification, proxy or other authorization furnished by the Book-Entry
Depositary or impair, as between the Clearing Agency and its Agent Members, the
operation of customary practices governing the exercise of the rights of a
Holder of any Note.


 


(a)                                  The
Holder of any Global Note may grant proxies and otherwise authorize any Person,
including the relevant Clearing Agency and their Agent Members and Persons that
may hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Notes.


 


ARTICLE III


 


REDEMPTION


 


SECTION 3.1.  Special Mandatory Redemption; Notice.  If the Release has not occurred on or before
5:00 p.m., London time, on the Deadline, then the Company will, on a day not
more than 10 Business Days following the Deadline (such date, the “Special Mandatory Redemption Date”), redeem all of the Notes (the “Special Mandatory Redemption”) at a price equal to 99.381% of the
principal amount thereof plus accrued and unpaid interest from the Issue Date
of the Notes (the “Special
Mandatory Redemption Price”).  Notice of the Special Mandatory Redemption
will be made in accordance with the provisions of Section 3.5.  Not later than the first Business Day after
the Deadline, if the Release has not occurred, the Escrow Agent will liquidate
all Escrowed Property held by it to the Trustee.  On or prior to 10 am on the Special Mandatory Redemption Date,
the Company shall pay to the Trustee the difference between the Special
Mandatory Redemption Price and the amount paid by the Escrow Agent to the
Trustee in accordance with the prior sentence. 
On the Special Mandatory Redemption Date, the Company shall cause the
Trustee to pay to each Holder of Notes the Special Mandatory Redemption Price
for such Holder’s Notes.


 


SECTION 3.2.  Optional Redemption.  The Notes may be redeemed, as a whole or
from time to time in part, upon the terms and at the redemption prices set
forth in the Notes.  Any redemption
pursuant to this Section 3.2 shall be made pursuant to the provisions of this
Article III.


 


SECTION 3.3.  Notices to Trustee.  If the Company elects to redeem Initial
Notes pursuant to Paragraph 8 or 9 of such Notes it shall notify the Trustee
and the Principal Paying Agent in writing of the Redemption Date and the
principal amount of Notes to be redeemed at least 30 days but not more than 60
days before the Redemption Date (or such shorter period as the Trustee


 


41

















 


in its sole discretion shall
determine).  The Company shall give
notice of redemption as required under the relevant paragraph of the Notes pursuant
to which such Notes are being redeemed. 
Any redemption and notice may, at the Company’s discretion, be subject
to the satisfaction of one or more conditions precedent.


 


SECTION 3.4.  Selection of Notes to Be Redeemed.  If less than all of the Notes are to be
redeemed at any time, selection of such Notes for redemption will be made by
the Trustee in compliance with the requirements of the principal national
securities exchange, if any, on which such Notes are listed as notified by the
Company to the Trustee, and/or in compliance with the requirements of each
relevant Clearing Agency, or if such Notes are not so listed or such exchange
prescribes no method of selection and the Notes are not held through a Clearing
Agency or such Clearing Agency prescribes no method of selection, on a pro rata basis, by lot or by such other
method as the Trustee shall deem fair and appropriate (and in such manner as
complies with applicable legal and exchange requirements); provided, however, that no Note of €1,000 in aggregate principal amount or less
shall be redeemed in part.  In the event
of partial redemption by lot, the particular Notes to be redeemed shall be
selected, unless otherwise provided herein, not less than 30 nor more than 60
days prior to the Redemption Date by the Trustee from the outstanding Notes not
previously called for redemption.


 


SECTION 3.5.  Notice
of Redemption.  At least 30 days but
not more than 60 days before a Redemption Date, the Company shall, so long as
the Notes are in the form of Global Notes, and are listed on the Luxembourg
Stock Exchange and the rules of such stock exchange shall so require, publish
in a newspaper having a general circulation in Luxembourg (which is expected to
be the Luxemburger
Wort), and in the case of Definitive Notes, in addition to such
publication, mail to Holders by first-class mail, postage prepaid, at their
respective addresses as they appear on the registration books of the Registrar
(any such mailed notice, if mailed in the manner provided in this Section 3.5,
to be conclusively deemed to have been given, whether or not the Holder
receives such notice).  At the Company’s
request made at least 30 days before the Redemption Date (or such shorter
period as the Trustee in its sole discretion shall determine), the Trustee
shall give the notice of redemption in the Company’s name and at the Company’s
expense; provided, however,
that the Company shall deliver to the Trustee an Officer’s Certificate
requesting that the Trustee give such notice and setting forth the information
to be stated in such notice as provided in the following items.  Any defect, other than a material defect, in
any redemption notice shall not affect the validity of the proceedings for the
redemption of any Note.  Each such
notice for redemption shall identify the Notes to be redeemed and shall state:


 


(a)                                  the expected Redemption Date;


 


(b)                                 the Redemption Prices;


 


(c)                                  the name and address of the relevant Paying
Agent or Paying Agents;


 


(d)                                 the place where the Notes called for
redemption must be surrendered to collect the Redemption Price;


 


42

















 


(e)                                  that,
unless the Company does not make the redemption payment (whether because any
conditions to redemption have not been met or otherwise), interest and Additional
Amounts, if any, on Notes called for redemption cease to accrue on and after
the Redemption Date, and the only remaining right of the Holders of such Notes
is to receive payment of the Redemption Price upon surrender to the Paying
Agent of the Notes redeemed;


 


(f)                                    (i)
if any Global Note is being redeemed in part, the portion of the principal
amount of such Note to be redeemed and that, after the Redemption Date,
interest and Additional Amounts, if any, shall cease to accrue on the portion
called for redemption, and upon surrender of such Global Note, the Global Note
with a notation on Schedule A thereof adjusting the principal amount thereof to
be equal to the unredeemed portion, will be returned and (ii) if any Definitive
Note is being redeemed in part, the portion of the principal amount of such
Note to be redeemed, and that, after the Redemption Date, upon surrender of
such Definitive Note, a new Definitive Note or Notes in aggregate principal
amount equal to the unredeemed portion thereof will be issued in the name of
the Holder thereof, upon cancellation of the original Note;


 


(g)                                 if
fewer than all the Notes are to be redeemed, the aggregate principal amount of
Notes to be redeemed and the aggregate principal amount of Notes to be
outstanding after such partial redemption;


 


(h)                                 the
paragraph of the Notes pursuant to which the Notes are to be redeemed;


 


(i)                                     the
CUSIP, ISIN or Common Code number, and that no representation is made as to the
correctness or accuracy of the CUSIP, ISIN or Common Code number, if any,
listed in such notice or printed on the Notes; and


 


(j)                                     the
conditions to redemption, if any, specified by the Company.


 


SECTION 3.6.  Effect of Notice of Redemption.  Subject to the fulfillment of any conditions
to redemption specified in Section 3.5, once notice of redemption is given in
accordance with Section 3.5, Notes called for redemption become due and payable
on the Redemption Date and at the Redemption Price.  Upon surrender to the Trustee or Paying Agent, such Notes called
for redemption shall be paid at the Redemption Price (which shall include
accrued and unpaid interest thereon, if any, and Additional Amounts, if any, to
the Redemption Date), but (in the case of Definitive Notes) installments of
interest, the maturity of which is on or prior to the Redemption Date, shall be
payable to Holders of record at the close of business on the relevant Record
Dates.


 


SECTION 3.7.  Deposit of Redemption Price.  On or prior to 10:00 a.m. London time on the
Redemption Date, the Company shall deposit with the Trustee or its designated
Paying Agent (which shall be the Principal Paying Agent unless otherwise
notified to the Company by the Trustee) cash in euro sufficient to pay the
Redemption Price of all Notes to be redeemed on that date.  The Paying Agent shall promptly return to
the Company any cash so deposited which is not required for that purpose upon
the written request of the Company.


 


43

















 


If the Company
complies with the preceding paragraph, then, unless the Company does not make
the redemption payment (whether because any conditions to redemption have not
been met or otherwise), interest and Additional Amounts on the Notes to be
redeemed will cease to accrue on and after the applicable Redemption Date,
whether or not such Notes are presented for payment.  With respect to Definitive Notes, if a Definitive Note is
redeemed on or after an interest Record Date but on or prior to the related
interest payment date, then any accrued and unpaid interest, and Additional
Amounts, if any, shall be paid to the Person in whose name such Note was
registered at the close of business on such Record Date.  If any Note called for redemption shall not
be so paid upon surrender for redemption because of the failure of the Company
to comply with the preceding paragraph, interest, and Additional Amounts, if
any, shall be paid on the unpaid principal, from the Redemption Date until such
principal is paid, in each case at the rate provided in the Notes and in Section
4.1.


 


SECTION 3.8.  Notes Redeemed in Part.  Upon surrender and cancellation of a
Definitive Note that is redeemed in part (with, if the Company or the Trustee
so requires, the endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing), the Company shall execute
and upon receipt of a Company Order the Trustee shall authenticate for the
Holder without a service charge a new Definitive Note equal in principal amount
to the unredeemed portion of the Definitive Note surrendered and canceled; provided,
however, that each
such Definitive Note shall be in a principal amount at maturity of €1,000 or an integral multiple thereof.  Upon surrender of a Global Note that is
redeemed in part, the Paying Agent shall forward such Global Note to the
Trustee who shall make a notation on Schedule A thereof to reduce the principal
amount of such Global Note to an amount equal to the unredeemed portion of the
Global Note surrendered; provided, however, that each such Global Note shall be in a principal amount at
maturity of €1,000 or an integral multiple thereof.


 


ARTICLE IV


 


COVENANTS


 


SECTION 4.1.  Payment of Notes.  v) The Company shall pay the principal,
premium, if any, interest and Additional Amounts, if any, on the Notes in the
manner provided in such Notes and this Indenture.  An installment of principal of or interest on the Notes shall be
considered paid on the date it is due if the Trustee or Paying Agent (including
the Principal Paying Agent) holds on that date money deposited by the Company
in immediately available funds and designated for, and sufficient to pay the
installment in full.


 


(a)                                  The
Company shall pay, to the extent such payments are lawful, interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
principal and on overdue installments of interest (without regard to any
applicable grace periods), and on any overdue Additional Amounts, from time to
time on demand at the rate borne by the Notes.


 


(b)                                 Interest
will be computed on the basis of a 360-day year comprised of twelve 30-day
months.


 


44

















 


SECTION 4.2.   Maintenance of Office or Agency.  The Company shall maintain the office or
agency (which office may be an office of the Trustee or an affiliate of the
Trustee, Registrar or co-Registrar) required under Section 2.3 where Notes may
be surrendered for registration of transfer or for exchange and where notices
and demands to or upon the Company in respect of the Notes and this Indenture
may be served.  The Company shall give
prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency.  If
at any time the Company shall fail to maintain any such required office or
agency or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
address of the Trustee set forth in Section 14.1.  The Company hereby initially designates the office of The Bank of
New York, London located at One Canada Square, London E14 5AL, United Kingdom,
as its initial office or agency outside of Ireland as required under Section
2.3 hereof.  If the Notes are listed on
the Luxembourg Stock Exchange and the rules of such exchange so require, the
Company will appoint Kredietbank S.A. Luxembourgeoise, or such other Person
located in Luxembourg and reasonably acceptable to the Trustee, as an
additional paying and transfer agent. 
The Company hereby designates the Corporate Trust Office of the Trustee
as one such office or agency of the Company.


 


SECTION 4.3.   Limitation on Incurrence of Additional
Indebtedness.  (a) The Company will
not, and will not permit any of its Restricted Subsidiaries to, directly or
indirectly, create, incur, assume, guarantee, acquire, become liable,
contingently or otherwise, with respect to, or otherwise become responsible for
payment of (collectively, “incur”) any Indebtedness; provided,
however, that if no
Default or Event of Default shall have occurred and be continuing at the time
of or as a consequence of the incurrence of any such Indebtedness, the Company
or any of its Restricted Subsidiaries may incur Indebtedness (including,
without limitation, Acquired Indebtedness) if on the date of the incurrence of
such Indebtedness, after giving effect to the incurrence thereof, the
Consolidated Fixed Charge Coverage Ratio of the Company is greater than 2.0 to
1.0.


 


(b)                                 Section
4.3(a) will not prohibit the incurrence of the following Indebtedness:


 


(1)                                  Indebtedness
under the Notes, the Indenture and the Guarantees;


 


(2)                                  Indebtedness
of (i) (x) the Company and the Guarantors incurred pursuant to the Credit
Agreement in the aggregate principal amount permitted to be drawn thereunder as
in existence on the Issue Date and (y) the Company and its Restricted
Subsidiaries to service their working capital needs (“Working Capital Facilities”) in the aggregate principal amount permitted to be drawn
thereunder as in existence on the Issue Date (in the case of both (x) and (y),
reduced by the amount of all mandatory prepayments actually made) and (ii) the
Company and its Restricted Subsidiaries incurred to service their working
capital needs in an aggregate principal amount at any time outstanding not to
exceed the excess, if any, of the Euro Equivalent of 265.0 million over the
aggregate amounts then outstanding under the agreements referred to in (i) (x)
and (i) (y), less in the case of both (i) and (ii) (without duplication) the
Net Cash Proceeds from any Asset Sales to the extent used to repay amounts
outstanding thereunder;


 


45

















 


(3)                                  Indebtedness
of the Company and its Restricted Subsidiaries (other than Indebtedness
outstanding under the Credit Agreement and Working Capital Facilities)
outstanding on the Issue Date in the case of the Private Placement Notes, from
and after the consummation of the Rights Offering, reduced by any prepayments
actually made from the proceeds thereof;


 


(4)                                  Interest
Swap Obligations of the Company or any Restricted Subsidiary of the Company
covering Indebtedness of the Company or any of its Restricted Subsidiaries; provided,
however, that such
Interest Swap Obligations are entered into to protect the Company and its
Restricted Subsidiaries from fluctuations in interest rates on its outstanding
Indebtedness and the notional principal amount of any such Interest Swap
Obligation does not, at the time of the incurrence thereof, exceed the
principal amount of the Indebtedness to which such Interest Swap Obligation
relates;


 


(5)                                  Indebtedness
under Currency Agreements designed to protect the Company or any Restricted
Subsidiary of the Company against fluctuations in currency values; provided
that in the case of Currency Agreements which relate to Indebtedness, such
Currency Agreements do not increase the Indebtedness of the Company and its
Restricted Subsidiaries outstanding other than as a result of fluctuations in
foreign currency exchange rates or by reason of fees, indemnities and
compensation payable thereunder;


 


(6)                                  Indebtedness
of a Restricted Subsidiary of the Company to the Company or to a Wholly Owned
Restricted Subsidiary of the Company for so long as such Indebtedness is held
by the Company or a Wholly Owned Restricted Subsidiary of the Company, in each
case subject to no Lien held by a Person other than the Company or a Wholly
Owned Restricted Subsidiary of the Company or the holder of a Lien permitted
under the Indenture; provided
that if as of any date any Person other than the Company or a Wholly Owned
Restricted Subsidiary of the Company or the holder of a Lien permitted under
the Indenture owns or holds any such Indebtedness or holds a Lien in respect of
such Indebtedness, such date shall be deemed the incurrence of Indebtedness not
constituting Indebtedness permitted under this Section 4.3(b)(6);


 


(7)                                  Indebtedness
of the Company to a Wholly Owned Restricted Subsidiary of the Company for so
long as such Indebtedness is held by a Wholly Owned Restricted Subsidiary of
the Company subject to no Lien other than a Lien permitted under the Indenture;
provided that (a) any
Indebtedness of the Company to any Wholly Owned Restricted Subsidiary of the
Company that is not a Guarantor is unsecured and subordinated, pursuant to a
written agreement, to the Company’s obligations under the Indenture and the
Notes and (b) if as of any date any Person other than a Wholly Owned Restricted
Subsidiary of the Company owns or holds any such Indebtedness or any Person
holds a Lien in respect of such Indebtedness, such date shall be deemed the
incurrence of Indebtedness not constituting Indebtedness permitted under this
Section 4.3(b)(7);


 


(8)                                  Indebtedness
arising from the honoring by a bank or other financial institution of a check,
draft or similar instrument inadvertently (except in the case of daylight


 


46

















 


overdrafts)
drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness
is extinguished within two business days of incurrence;


 


(9)                                  Indebtedness
of the Company or any of its Restricted Subsidiaries in respect of performance
bonds, bankers’ acceptances, workers’ compensation claims or claims or
liabilities arising under similar legislation, surety or appeal bonds, payment
obligations in connection with self-insurance or similar obligations, and bank
overdrafts (and letters of credit in respect thereof) in the ordinary course of
business;


 


(10)                            Refinancing
Indebtedness;


 


(11)                            Indebtedness
of the Company or any Restricted Subsidiary consisting of guarantees,
indemnities, earnouts or obligations in respect of purchase price adjustments
in connection with the acquisition or disposition of business, assets or
Capital Stock;


 


(12)                            customer
deposits and advance payments received from customers for goods and services
sold in the ordinary course of business;


 


(13)                            Indebtedness
incurred in certain receivables transactions that are non-recourse to the
Company and its Subsidiaries and their assets (other than with respect to
representations, warranties, covenants and indemnities customary for such
transaction); and


 


(14)                            additional
Indebtedness of the Company and any Restricted Subsidiary in an aggregate
principal amount not to exceed €25.0
million at any one time outstanding (which amount may, but need not, be
incurred in whole or in part under the Credit Agreement).


 


(c)                                  For
purposes of determining compliance with this Section 4.3, in the event that an
item of Indebtedness meets the criteria of more than one of the categories
described in Sections 4.3 (b)(1) through (14) above or is entitled to be
incurred pursuant to paragraph (a) above, the Company shall, in its sole
discretion, classify (or later reclassify) such item of Indebtedness in any
manner that complies with this covenant;
provided that all Indebtedness outstanding under the Credit
Agreement up to the maximum amount permitted under clause (2) above shall be
deemed to have been incurred pursuant to clause (2).  Accrual of interest, accretion or amortization of original issue
discount, the payment of interest on any Indebtedness in the form of additional
Indebtedness with the same terms, and the payment of dividends on Disqualified
Capital Stock in the form of additional shares of the same class of
Disqualified Capital Stock will not be deemed to be an incurrence of
Indebtedness or an issuance of Disqualified Capital Stock for purposes of this
Section 4.3.


 


SECTION 4.4.   Limitation on Layering.  The Company will not incur any Indebtedness
if such Indebtedness is expressly subordinate in right of payment to any Senior
Debt unless such Indebtedness is pari passu in right of payment with or is
subordinate in right of payment to the Notes. 
No Guarantor will incur any Indebtedness if such Indebtedness is
expressly subordinate in right of payment to such Guarantor’s Senior Debt
unless such Indebtedness is pari passu in


 


47

















 


right of payment with or is
subordinate in right of payment to the Guarantee of such Guarantor.  Unsecured Indebtedness is not deemed to be
subordinate or junior to secured Indebtedness merely because it is unsecured,
and Indebtedness that is not Guaranteed by a particular Person is not deemed to
be subordinate or junior to Indebtedness that is so Guaranteed merely because
it is not so Guaranteed.


 


SECTION 4.5.   Limitation on Restricted Payments.
(a) The Company will not, and will not cause or permit any of its Restricted
Subsidiaries to, directly or indirectly:


 


(1)                                  declare
or pay any dividend or make any distribution (other than dividends or
distributions payable in Qualified Capital Stock of the Company) on or in
respect of shares of the Company’s Capital Stock to holders of such Capital
Stock;


 


(2)                                  purchase,
redeem or otherwise acquire or retire for value any Capital Stock of the
Company;


 


(3)                                  make
any principal payment on, purchase, defease, redeem, prepay, decrease or
otherwise acquire or retire for value, prior to any scheduled final maturity,
scheduled repayment or scheduled sinking fund payment, any Subordinated
Indebtedness; or


 


(4)                                  make
any Investment (other than Permitted Investments) (each of the foregoing
actions set forth in Sections 4.5(a)(1), (2), (3) and (4) being referred to as
a “Restricted Payment”);


 


if at the time of such
Restricted Payment or immediately after giving effect thereto,


 


(i)                                     a
Default or an Event of Default shall have occurred and be continuing; or


 


(ii)                                  the
Company is not able to incur at least €1.00 of additional Indebtedness pursuant
to Section 4.3(a) above; or


 


(iii)                               the
aggregate amount of Restricted Payments (including such proposed Restricted
Payment) made subsequent to the Issue Date (the amount expended for such
purposes, if other than in cash, being the fair market value of such property
as determined in good faith by the Board of Directors of the Company) shall
exceed the sum of:


 


(w)                               50%
of the cumulative Consolidated Net Income (or if cumulative Consolidated Net
Income shall be a loss, minus 100% of such loss) of the Company earned
subsequent to October 1, 2003 and on or prior to the date the Restricted
Payment occurs (the “Reference
Date”) (treating
such period as a single accounting period); plus


 


(x)                                   100%
of the aggregate net cash proceeds received by the Company from any Person
(other than a Subsidiary of the Company) from the issuance and sale subsequent
to the Issue Date and on or prior to the Reference Date of Qualified


 


48

















 


fixed Capital
Stock of the Company or warrants, options or other rights to acquire Qualified
Capital Stock of the Company (but excluding any debt security that is
convertible into, or exchangeable for, Qualified Capital Stock); plus


 


(y)                                 the
amount by which Indebtedness of the Company is reduced on the Company’s balance
sheet upon the conversion or exchange (other than by a Subsidiary), subsequent
to the Issue Date, of any Indebtedness of the Company convertible or
exchangeable for Qualified Capital Stock of the Company (less the amount of any
cash, or the fair value of any property, distributed by the Company upon such
conversion or exchange); and


 


(z)                                   without
duplication, the sum of:


 


(1)  the aggregate amount
returned in cash on or with respect to Investments (other than Permitted
Investments) made subsequent to the Issue Date whether through interest
payments, principal payments, dividends or other distributions or payments;


 


(2)  the net cash proceeds
received by the Company or any of its Restricted Subsidiaries from the
disposition of all or any portion of such Investments (other than to a
Subsidiary of the Company); and


 


(3)  upon redesignation of an
Unrestricted Subsidiary as a Restricted Subsidiary, the fair market value of
such Subsidiary;


 


provided, however,
that the sum of clauses (1), (2) and (3) above shall not exceed the aggregate
amount of all such Investments made subsequent to the Issue Date and; provided, further, however, that no amount shall be included in Consolidated
Net Income for purposes of the proceeding clause (w) to the extent it is
included under this clause (z).


 


(b)                                 Notwithstanding
the foregoing the provisions set forth in Section 4.5(a) shall not prohibit:


 


(1)                                  the
payment of any dividend within 90 days after the date of declaration of such
dividend if the dividend would have been permitted on the date of declaration;


 


(2)                                  if
no Default or Event of Default shall have occurred and be continuing, the
acquisition of any shares of Capital Stock of the Company, either (i) solely in
exchange for shares of Qualified Capital Stock of the Company or (ii) through
the application of net proceeds of a substantially concurrent sale for cash
(other than to a Subsidiary of the Company) of shares of Qualified Capital Stock
of the Company;


 


(3)                                  if
no Default or Event of Default shall have occurred and be continuing, the
acquisition of any Subordinated Indebtedness either (i) solely in exchange for
shares of Qualified Capital Stock of the Company, or (ii) through the application
of net proceeds


 


49

















 


of a
substantially concurrent sale for cash (other than to a Subsidiary of the
Company) of (a) shares of Qualified Capital Stock of the Company or (b)
Refinancing Indebtedness; and


 


(4)                                  the
payment of dividends in an aggregate amount of €10.0 million.


 


(c)                                  In
determining the aggregate amount of Restricted Payments made subsequent to the
Issue Date in accordance with Section 4.5(a)(4)(iii), amounts expended pursuant
to Sections 4.5(b)(1), (2) and (4) shall be included in such calculation.


 


SECTION 4.6.  Limitation on Asset Sales.  (a) The Company will not, and will not
permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:


 


(1)                                  the
Company or the applicable Restricted Subsidiary, as the case may be, receives
consideration at the time of such Asset Sale at least equal to the fair market
value of the assets sold or otherwise disposed of (as determined in good faith
by the Company’s Board of Directors);


 


(2)                                  at
least 75% of the consideration received by the Company or the Restricted
Subsidiary, as the case may be, from such Asset Sale shall be in the form of
cash and/or Cash Equivalents and is received at the time of such disposition; provided
that the amount of any liabilities (as shown on the Company’s or such
Restricted Subsidiary’s most recent balance sheet) of the Company or any such
Restricted Subsidiary (other than liabilities that are by their terms
subordinated to the Notes or any Guarantee of a Guarantor) that are assumed by
the transferee of any such assets shall be deemed to be cash for purposes of
this provision; and


 


(3)                                  upon
the consummation of an Asset Sale, the Company shall apply, or cause such
Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset
Sale within 365 days of receipt thereof either:


 


(a)                                  to
permanently reduce (i) Senior Debt of the Company or a Guarantor, (ii) any
other Indebtedness which is secured by a Lien on the assets which are the
subject of such Asset Sale or (iii) in the case of a Restricted Subsidiary of
the Company which is not a Guarantor, any other Indebtedness of such Restricted
Subsidiary or its Subsidiaries;


 


(b)                                 to
make an investment in properties and assets that replace the properties and
assets that were the subject of such Asset Sale or in properties and assets
(including Capital Stock) that will be used in the business of the Company and
its Restricted Subsidiaries as existing on the Issue Date or in businesses
similar, ancillary, complementary or reasonably related thereto (“Replacement Assets”); and/or


 


(c)                                  a
combination of prepayment and investment permitted by the foregoing
clauses (3)(a) and (3)(b);


 


50

















 


provided however,
that the requirements of Section 4.6(a)(3) will not apply to sales by the
Company or any of its Restricted Subsidiaries of any of the Excluded Assets.


 


(b)                                 Pending
the final application of such Net Cash Proceeds, the Company may temporarily
reduce borrowings under the Credit Agreement or any other revolving credit
facility.  On the 365th day after an
Asset Sale or such earlier date, if any, as the Board of Directors of the
Company or of such Restricted Subsidiary determines not to apply the Net Cash
Proceeds relating to such Asset Sale as set forth in Section 4.6(a)(3)(a), (b)
and (c) (each a “Net Proceeds
Offer Trigger Date”),
such aggregate amount of Net Cash Proceeds which have not been applied on or
before such Net Proceeds Offer Trigger Date as permitted in clauses Section 4.6(a)(3)(a),
(b) and (c) of the preceding paragraph (each a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary
to make an offer to purchase (the “Net Proceeds
Offer”) on a date
(the “Net Proceeds Offer Payment Date”) not less than 30 nor more than 60
days following the applicable Net Proceeds Offer Trigger Date, from all holders
of the Notes and any Pari Passu Indebtedness (to the extent the terms of such
Pari Passu Indebtedness so require) on a pro
rata basis, that amount of Notes and Pari Passu Indebtedness equal
to the Net Proceeds Offer Amount at a price equal to 100% of the principal
amount of the Notes and Pari Passu Indebtedness to be purchased, plus accrued
and unpaid interest thereon, if any, to the date of purchase; provided however, that if at any time any
non-cash consideration received by the Company or any Restricted Subsidiary of
the Company, as the case may be, in connection with any Asset Sale is converted
into or sold or otherwise disposed of for cash (other than interest received
with respect to any such non-cash consideration), then such conversion or
disposition shall be deemed to constitute an Asset Sale hereunder and the Net
Cash Proceeds thereof shall be applied in accordance with this covenant.


 


(c)                                  The
Company may defer the Net Proceeds Offer until there is an aggregate unutilized
Net Proceeds Offer Amount equal to or in excess of €10.0 million resulting from
one or more Asset Sales (at which time, the entire unutilized Net Proceeds
Offer Amount, and not just the amount in excess of €10.0 million, shall be
applied as required pursuant to this paragraph).


 


(d)                                 In
the event of the transfer of substantially all (but not all) of the property
and assets of the Company and its Restricted Subsidiaries as an entirety to a
Person in a transaction permitted under Section 5.1, which transaction does not
constitute a Change of Control, the successor corporation shall be deemed to
have sold the properties and assets of the Company and its Restricted
Subsidiaries not so transferred for purposes of this covenant, and shall comply
with the provisions of this covenant with respect to such deemed sale as if it
were an Asset Sale.  In addition, the
fair market value of such properties and assets of the Company or its
Restricted Subsidiaries deemed to be sold shall be deemed to be Net Cash
Proceeds for purposes of this covenant.


 


(e)                                  Each
Net Proceeds Offer will be mailed to the Holders within 25 days following the
Net Proceeds Offer Trigger Date, with a copy to the Trustee.  Upon receiving notice of the Net Proceeds
Offer, Holders may elect to tender their Notes in whole or in part in integral
multiples of €1,000 in exchange for cash. 
To the extent Holders properly tender Notes and holders of Pari Passu
Indebtedness properly tender Pari Passu Indebtedness in an aggregate amount
exceeding the Net Proceeds Offer Amount, the tendered Notes and Pari Passu Indebtedness
will be purchased


 


51

















 


on a pro rata basis (based on amounts tendered).  A Net Proceeds Offer shall remain open for a
period of 20 business days or such longer period as may be required by
law.  If any Net Cash Proceeds remain
after the consummation of any Net Proceeds Offer, the Company may use those Net
Cash Proceeds for any purpose not otherwise prohibited by this Indenture.  Upon completion of each Net Proceeds Offer,
the amount of Net Cash Proceeds will be reset at zero.


 


(f)                                    The
Company will comply with the requirements of any securities laws and
regulations thereunder to the extent such laws and regulations are applicable
in connection with the repurchase of Notes pursuant to a Net Proceeds Offer.  To the extent that the provisions of any
securities laws or regulations conflict with the “Asset Sale” provisions of
this Section 4.6, the Company shall comply with the applicable securities laws
and regulations and shall not be deemed to have breached its obligations under
the “Asset Sale” provisions of this this Section 4.6 by virtue thereof.


 


SECTION 4.7.  Limitation on Dividend and Other Payment
Restrictions Affecting Restricted Subsidiaries.  The Company will not, and will not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly, create or otherwise cause
or permit to exist or become effective any encumbrance or restriction on the
ability of any Restricted Subsidiary of the Company to:


 


(1)                                  pay
dividends or make any other distributions on or in respect of its Capital
Stock;


 


(2)                                  make
loans or advances to the Company or any other Restricted Subsidiary or to pay
any Indebtedness or other obligation owed to the Company or any other
Restricted Subsidiary of the Company; or


 


(3)                                  transfer
any of its property or assets to the Company or any other Restricted Subsidiary
of the Company, except in each case for such encumbrances or restrictions
existing under or by reason of:


 


(a)                                  applicable
law;


 


(b)                                 this
Indenture;


 


(c)                                  customary
non-assignment provisions of any contract or any lease governing a leasehold
interest of any Restricted Subsidiary of the Company;


 


(d)                                 any
instrument governing Acquired Indebtedness, which encumbrance or restriction is
not applicable to any Person, or the properties or assets of any Person, other
than the Person or the properties or assets of the Person so acquired;


 


(e)                                  agreements
existing on the Issue Date to the extent and in the manner such agreements are
in effect on the Issue Date;


 


52

















 


(f)                                    restrictions
on the transfer of assets subject to any Lien permitted under this Indenture
imposed by the holder of such Lien;


 


(g)                                 restrictions
imposed by any agreement to sell assets or Capital Stock permitted under this
Indenture to any Person pending the closing of such sale;


 


(h)                                 customary
provisions in joint venture agreements and other similar agreements (in each
case relating solely to the respective joint venture or similar entity or the
equity interests therein) entered into in the ordinary course of business;


 


(i)                                     an
agreement governing Indebtedness incurred to Refinance the Indebtedness issued,
assumed or incurred pursuant to an agreement referred to in Section 4.7 (3)
(b), (d), (e) or (f) above or an agreement governing Indebtedness incurred
pursuant to Section 4.3(b)(2)(ii); provided, however, that the provisions
relating to such encumbrance or restriction contained in any such Indebtedness
are no less favorable to the Company in any material respect as determined by
the Board of Directors of the Company in their reasonable and good faith
judgment than the provisions relating to such encumbrance or restriction
contained in agreements referred to in Sections 4.7(3) (b), (d), (e) and (f);
and


 


(j)                                     in
respect of Rosenthal AG and its subsidiaries (“Rosenthal”),
for so long as they are not Guarantors and none of the Company or the
Guarantors guarantee or otherwise are directly or indirectly liable with
respect to any Indebtedness of Rosenthal, an agreement governing Indebtedness
of Rosenthal permitted to be incurred under the Indenture; provided, however,
that the Board of Directors of the Company in their reasonable and good faith
judgment determine that any encumbrance or restriction created by such
agreement will not impair the ability of the Company to make scheduled payments
of interest and principal on the Notes in each case as and when due.


 


SECTION 4.8.  Limitation on Preferred Stock of
Restricted Subsidiaries.  The
Company will not permit any of its Restricted Subsidiaries to issue any
Preferred Stock (other than to the Company or to a Wholly Owned Restricted
Subsidiary of the Company) or permit any Person (other than the Company or a
Wholly Owned Restricted Subsidiary of the Company) to own any Preferred Stock
of any Restricted Subsidiary of the Company.


 


SECTION 4.9.  Limitation on Liens.  The Company will not, and will not cause or
permit any of its Restricted Subsidiaries to, directly or indirectly create,
incur, assume or suffer to exist any Lien (other than a Permitted Lien) that
secures any Pari Passu Indebtedness or Subordinated Indebtedness on any asset
or property of the Company or such Restricted Subsidiary, or any income or
profits therefrom, or assign or convey any right to receive income therefrom, unless
the


 


53

















 


Notes are equally and ratably
secured with the obligations so secured or until such time as such obligations
are no longer secured by a Lien.


 


SECTION 4.10.  Limitation on Sale and Leaseback Transactions.  The Company will not, and will not permit
any of its Restricted Subsidiaries to, enter into any Sale and Leaseback
Transaction unless:


 


(1)                                  the
Company or such Restricted Subsidiary, as the case may be, receives
consideration at the time of such Sale and Leaseback Transaction at least equal
to the fair market value (as evidenced by a resolution of the Board of
Directors of the Company) of the property subject to such transaction;


 


(2)                                  the
Company or such Restricted Subsidiary could have incurred Indebtedness in an
amount equal to the Attributable Indebtedness in respect of such Sale and
Leaseback Transaction pursuant to Section 4.3;


 


(3)                                  the
Company or such Restricted Subsidiary could have created a Lien on the property
subject to such Sale and Leaseback Transaction if such transaction was financed
with Indebtedness without securing the Notes pursuant to the covenant in
Section 4.9; and


 


(4)                                  the
Sale and Leaseback Transaction is treated as an Asset Sale and all of the
applicable conditions of Section 4.6 (including the provisions concerning the
application of Net Cash Proceeds) are satisfied with respect to such Sale and
Leaseback Transaction, treating all of the cash consideration received in such
Sale and Leaseback Transaction as Net Cash Proceeds for purposes of such
covenant.


 


SECTION 4.11.  Limitations on Transactions with
Affiliates.  (a) The Company will
not, and will not permit any of its Restricted Subsidiaries to, directly or
indirectly, enter into or permit to exist any transaction or series of related
transactions (including, without limitation, the purchase, sale, lease or
exchange of any property or the rendering of any service) with, or for the
benefit of, any of its Affiliates (each an “Affiliate Transaction”),
other than (x) Affiliate Transactions permitted under paragraph (b) below and
(y) Affiliate Transactions on terms that are no less favorable than those that
might reasonably have been obtained in a comparable transaction at such time on
an arm’s-length basis from a Person that is not an Affiliate of the Company or
such Restricted Subsidiary.


 


All Affiliate
Transactions (and each series of related Affiliate Transactions which are
similar or part of a common plan) involving aggregate payments or other
property with a fair market value in excess of €5.0 million shall be approved
by the Board of Directors of the Company or such Restricted Subsidiary as the
case may be, such approval to be evidenced by a Board Resolution stating that
such Board of Directors has determined that such transaction complies with the
foregoing provisions.  If the Company or
any Restricted Subsidiary of the Company enters into an Affiliate Transaction
(or a series of related Affiliate Transactions which are similar or part of a
common plan) that involves an aggregate fair market value of more than €10.0
million, the Company or such Restricted Subsidiary, as the case may be, shall,
prior to the


 


54

















 


consummation thereof, obtain a
favorable opinion as to the fairness of such transaction or series of related
transactions to the Company or the relevant Restricted Subsidiary, as the case
may be, from a financial point of view, from an Independent Financial Advisor
and file the same with the Trustee.


 


(b)                                 The
restrictions set forth in Section 4.11(a) shall not apply to:


 


(1)                                  reasonable
fees and compensation paid to and indemnity provided on behalf of, officers,
directors, employees or consultants of the Company or any Restricted Subsidiary
of the Company as determined in good faith by the Company’s Board of Directors
or senior management;


 


(2)                                  transactions
exclusively between or among the Company and any of its Wholly Owned Restricted
Subsidiaries or exclusively between or among such Wholly Owned Restricted
Subsidiaries, provided such transactions are not otherwise prohibited by the
Indenture;


 


(3)                                  any
agreement as in effect as of the Issue Date or any amendment thereto or any
transaction contemplated thereby (including pursuant to any amendment thereto)
in any replacement agreement thereto so long as any such amendment or
replacement agreement is not more disadvantageous to the Holders in any
material respect than the original agreement as in effect on the Issue Date;
and


 


(4)                                  Restricted
Payments permitted by this Indenture.


 


SECTION 4.12.  Limitation of Guarantees by Restricted
Subsidiaries.  The Company will not
permit any of its Restricted Subsidiaries, directly or indirectly, by way of
the pledge of any intercompany note or otherwise, to assume, guarantee or in
any other manner become liable with respect to any Indebtedness of the Company
or any Guarantor (other than Indebtedness permitted to be incurred pursuant to
Section 4.3 (b) (3) through (14)) unless, in any case:


 


(1)                                  such
Restricted Subsidiary, if it is not already a Guarantor, guarantees payment of
the Notes;


 


(2)                                  any
such assumption, guarantee or other liability by such Restricted Subsidiary
that is provided in respect of Indebtedness that is not subordinated to any
other Indebtedness shall be pari passu with such Restricted
Subsidiary’s guarantee of the Notes under the Indenture; and


 


(3)                                  any
such assumption, guarantee or other liability by such Restricted Subsidiary
that is provided in respect of Indebtedness that is expressly subordinated to
the Notes shall be subordinated to such Restricted Subsidiary’s guarantee of
the Notes hereunder.


 


SECTION 4.13.  Conduct of Business.  The Company and its Restricted Subsidiaries
will not engage in any businesses which are not the same, similar, ancillary,
complementary or reasonably


 


55

















 


related to the businesses in
which the Company and its Restricted Subsidiaries are engaged on the Issue
Date.


 


SECTION 4.14.  Reports to Holders. 
(a)  The Company shall provide
the Trustee and, if requested by a Holder of Notes, such Holder of the Notes:


 


(1)                                  within
120 days after the end of each fiscal year, an annual report containing audited
consolidated financial statements of the Company for the fiscal year then ended
and comparative audited consolidated financial statements of the Company for
the prior fiscal year, in each case prepared in accordance with Irish GAAP (or
International Accounting Standards, in the event the Company is required by
applicable law to prepare its financial statements in accordance with
International Accounting Standards) (which need not contain any reconciliation
to U.S. GAAP or otherwise comply with Regulation S-X) together with reasonably
detailed footnote disclosure, and also containing, with respect to the Company
and its Subsidiaries, disclosure regarding the Company’s business and
management’s analysis of the financial results in form and substance
substantially equivalent to that contained in the Company’s Review 2003 and
Accounts 2003 as first sent to its shareholders in July 2003;


 


(2)                                  within
the time period prescribed by the Commission for a report on Form 20-F, a
report containing an appropriate reconciliation to U.S. GAAP of the audited
consolidated financial statements of the Company for the year then ended and a
discussion of the “Results of Operations” prepared in a manner substantially
consistent with the “Operating and Financial Review and Prospects” appearing in
the Company’s report on Form 20-F filed with the Commission in October 2003.


 


(3)                                  within
60 days following the end of the first half of each fiscal year, a report
containing unaudited consolidated financial statements of the Company for the
semi-annual period then ended and comparative unaudited consolidated financial
statements of the Company for the corresponding period in the prior fiscal
year, in each case prepared in accordance with Irish GAAP (or International
Accounting Standards, in the event the Company is required by applicable law to
prepare its financial statements in accordance with International Accounting
Standards) (which need not contain any reconciliation to U.S. GAAP or otherwise
comply with Regulation S-X), together with a brief description of the results
of the changes in certain selected line items; and


 


(4)                                  promptly,
any information which the Company discloses, or is required to disclose, to its
shareholders generally other than information provided in the ordinary course
in connection with The Waterford Wedgwood plc UK Savings-Related Share Option
Scheme 1995 and The Waterford Wedgwood plc Irish and International
Savings-Related Share Option Scheme 1996.


 


(b)                                 Whether
or not required by the rules and regulations of the Commission, the Company
will file a copy of all such information and reports with the Commission for
public availability within the time periods specified in the Commission’s rules
and regulations (unless (i) the Commission will not accept such a filing or
(ii) the Company is no longer subject to Section


 


56

















 


13 or 15(d) to the Exchange
Act) and the Company will make such information available to securities
analysts and prospective investors upon request.  The Company will also furnish to the Holders of Notes, to
prospective investors and to securities analysts, upon the requests of such
Holders, prospective investors and securities analysts, any information
required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act
so long as the Notes are not freely transferable under the Securities Act by
Persons not “affiliates” under the Securities Act.


 


(c)                                  Contemporaneously
with the provision of each report discussed above, the Company will post such
report on the Company’s website.


 


(d)                                 For
so long as the Notes are listed on the Luxembourg Stock Exchange and the rules
of such exchange so require, the above information also will be made available
in Luxembourg through the offices of the Paying Agent in Luxembourg.


 


SECTION 4.15.  Change of Control.


 


(a)                                  Upon
the occurrence of a Change of Control, each Holder will have the right to
require that the Company purchase all or a portion of such Holder’s Notes
pursuant to the offer described below (the “Change of Control Offer”), at a purchase price equal to 101%
of the principal amount thereof plus accrued interest to the date of purchase.


 


(b)                                 Within
30 days following the date upon which the Change of Control occurred, the
Company must send, by first class mail, a notice to each Holder, with a copy to
the Trustee, which notice shall govern the terms of the Change of Control
Offer.  Such notice shall state:


 


(1)                                  that
a Change of Control has occurred or may occur and that such Holder has the
right to require the Company to purchase such Holder’s Notes at a purchase
price in cash equal to 101% of the principal amount of such Notes plus accrued
and unpaid interest and Additional Amounts, if any, to the date of purchase (in
the case of Definitive Notes, subject to the right of Holders of record on a
record date to receive interest on the relevant interest payment date) (the “Change of
Control Payment”);


 


(2)                                  the
repurchase date (which shall be no earlier than 30 days nor later than 45 days
from the date such notice is mailed) (the “Change of Control Payment Date”);


 


(3)                                  the
procedures determined by the Company, consistent with this Indenture, that a
Holder must follow in order to have its Notes repurchased; and


 


(4)                                  if
such notice is mailed prior to the occurrence of a Change of Control, that the
Change of Control Offer is conditional on the occurrence of such Change of
Control.


 


(c)                                  On
the Change of Control Payment Date, if the Change of Control shall have
occurred, the Company will, to the extent lawful:


 


57

















 


(1)                                  accept
for payment all Notes properly tendered pursuant to the Change of Control
Offer;


 


(2)                                  deposit
with the Paying Agent an amount equal to the Change of Control Payment in
respect of all Notes so tendered; and


 


(3)                                  deliver
or cause to be delivered to the Trustee the Notes so accepted together with an
Officer’s Certificate stating the aggregate principal amount of the Notes or
portions of Notes being purchased by the Company.


 


(d)                                 The
Paying Agent will promptly mail to each Holder of Notes so tendered the Change
of Control Payment for such Notes, and the Trustee will promptly authenticate
and mail (or cause to be transferred by book entry) to each Holder a new Note
equal in principal amount to any unpurchased portion of the Notes surrendered,
if any; provided that each such
new Note will be in a principal amount of €1,000,
or an integral multiple thereof.


 


(e)                                  If
and for so long as the Notes are listed on the Luxembourg Stock Exchange and
the rules of such exchange so require, the Company will publish such public
announcement in Luxembourg in a daily newspaper with general circulation in
Luxembourg (which is expected to be the Luxemburger Wort).  In the case of Definitive Notes, if the
Change of Control Payment Date is on or after an interest record date and on or
before the related interest payment date, any accrued and unpaid interest and
Additional Amounts, if any, will be paid to the Person in whose name a Note is
registered at the close of business on such record date, and no additional
interest will be payable to Holders who tender pursuant to the Change of
Control Offer.  In the case of Global
Notes, the Company will pay accrued and unpaid interest and Additional Amounts,
if any, to the Change of Control Payment Date to the Holders on such date.


 


(f)                                    The
Change of Control provisions described above will be applicable whether or not
any other provisions of this Indenture are applicable.  Except as described above with respect to a
Change of Control, this Indenture does not contain provisions that permit the
Holders to require that the Company repurchase or redeem the Notes in the event
of a takeover, recapitalization or similar transaction.


 


(g)                                 The
Company will not be required to make a Change of Control Offer upon a Change of
Control if a third party makes the Change of Control Offer in the manner, at
the times and otherwise in compliance with the requirements set forth in this
Indenture applicable to a Change of Control Offer made by the Company and
purchases all Notes validly tendered and not withdrawn under such Change of
Control Offer.


 


(h)                                 The
Company will comply, to the extent applicable, with the requirements of Section
14(e) of the Exchange Act and any other securities laws or regulations in
connection with the repurchase of Notes pursuant to this Section 4.15.  To the extent that the provisions of any
securities laws or regulations conflict with provisions of this Indenture, the
Company will comply with the applicable securities laws and regulations and
will not be deemed to have breached its obligations under this Section 4.15 by
virtue of the conflict.


 


58

















 


SECTION 4.16.  Additional Amounts.  (a) 
All payments made by the Company, the Guarantors or a successor of
either (a “Payor”)
on the Notes and under the Guarantees will be made without withholding or
deduction for, or on account of, any present or future taxes, duties,
assessments or governmental charges of whatever nature (“Taxes”) imposed or levied by or on behalf
of (1) Luxembourg, the United States, Ireland or any political subdivision or
governmental authority of any thereof or therein having power to tax, (2) any
jurisdiction from or through which payment on the Notes or any Guarantee is
made, or any political subdivision or governmental authority thereof or therein
having the power to tax, or (3) any other jurisdiction in which the Payor is
organized or otherwise considered to be a resident for tax purposes, or any
political subdivision or governmental authority thereof or therein having the
power to tax (each of Section 4.16(a)(1), (2) and (3), a “Relevant Taxing Jurisdiction”) unless the
withholding or deduction of such Taxes is then required by law.  If any deduction or withholding for, or on
account of, any Taxes of any Relevant Taxing Jurisdiction will at any time be
required from any payments made with respect to the Notes or under the
Guarantees, including payments of principal, redemption price, interest or
premium, if any, the Payor will pay (together with such payments) such
additional amounts (the “Additional Amounts”) as may be necessary
in order that the net amounts received in respect of such payments by the
Holders of the Notes or the Trustee, as the case may be, after such withholding
or deduction (including any such deduction or withholding from such Additional
Amounts), equal the amounts which would have been received in respect of such
payments on the Notes in the absence of such withholding or deduction; provided, however, that no such Additional
Amounts will be payable with respect to:


 


(1)                                  any
payments to a Holder or beneficial owner who is liable for such Taxes in
respect of such Note by reason of the Holder’s or beneficial owner’s having any
present or former connection with the Relevant Taxing Jurisdiction (including
being a citizen or resident or national of, or carrying on a business or
maintaining a permanent establishment in, or being physically present in, the
Relevant Taxing Jurisdiction) other than by the mere holding of such Note or
enforcement of rights thereunder or the receipt of payments in respect thereof;


 


(2)                                  any
Taxes that are imposed or withheld where such withholding or imposition is by
reason of the failure of the Holder or beneficial owner of the Note to comply
with any reasonable and timely request by the Payor to provide information
concerning the nationality, residence or identity of such Holder or beneficial
owner or to make any declaration or similar claim or satisfy any certification,
information or other reporting requirement relating to such matters, which is
required or imposed by a statute, treaty, regulation, protocol, or
administrative practice of the Relevant Taxing Jurisdiction as a precondition
to exemption from all or part of such Taxes;


 


(3)                                  except
in the case of the winding up of the Payor, any Note presented for payment
(where presentation is required) in the Relevant Taxing Jurisdiction (unless by
reason of the Payor’s actions, presentment could not have been made elsewhere
and except to the extent that the Holder would have been entitled to Additional
Amounts had the Notes been presented elsewhere);


 


59

















 


(4)                                  any
Note presented for payment (where presentation is required) more than 30 days
after the relevant payment is first made available for payment to the Holder
(except to the extent that the Holder would have been entitled to Additional
Amounts had the Note been presented during such 30 day period);


 


(5)                                  any
Taxes that are payable otherwise than by withholding from a payment of the
principal of, premium, if any, or interest, on the Notes or any Guarantee;


 


(6)                                  any
estate, inheritance, gift, sale, transfer, personal property or similar tax,
assessment or other governmental charge;


 


(7)                                  any
Taxes imposed on a payment to an individual and required to be made pursuant to
any European Union Directive (a “Directive”) on the taxation of savings
implementing the conclusions of the ECOFIN Council meeting of June 3, 2003 or
any law implementing or complying with, or introduced in order to conform to,
such Directive; or


 


(8)                                  any
Taxes imposed in connection with a Note presented for payment by or on behalf
of a Holder or beneficial owner who would have been able to avoid such Tax by
presenting the relevant Note to another paying agent in a member state of the
European Union.


 


Such
Additional Amounts will also not be payable where, had the beneficial owner of
the Note been the Holder of the Note, it would not have been entitled to
payment of Additional Amounts by reason of any of Sections 4.16(a)(1) to (8).


 


(b)                                 The
Payor will (i) make any required withholding or deduction and (ii) remit the
full amount deducted or withheld to the Relevant Taxing Jurisdiction in
accordance with applicable law.  The
Payor will use all reasonable efforts to obtain certified copies of tax
receipts evidencing the payment of any Taxes so deducted or withheld from each
Relevant Taxing Jurisdiction imposing such Taxes and will provide such
certified copies to the Trustee.  The
Payor will attach to each certified copy a certificate stating (x) that the amount
of withholding Taxes evidenced by the certified copy was paid in connection
with payments in respect of the principal amount of Notes then outstanding and
(y) the amount of such withholding Taxes paid per €1,000 principal amount of the Notes. 
Copies of such documentation will be available for inspection during
ordinary business hours at the office of such Trustee by the Holders of the
Notes upon request and will be made available at the offices of the Paying
Agent located in Luxembourg if the Notes are then listed on the Luxembourg
Stock Exchange.


 


(c)                                  Wherever
in the Indenture or the Notes there are mentioned, in any context, (1) the
payment of principal, (2) purchase prices in connection with a purchase of
Notes, (3) interest or (4) any other amount payable on or with respect to any
of the Notes, such reference shall be deemed to include payment of Additional
Amounts as described under this heading to the extent that, in such context,
Additional Amounts are, were or would be payable in respect thereof.


 


(d)                                 The
Payor will pay any present or future stamp, court or documentary taxes, or any
other excise or property taxes, charges or similar levies which arise in any
jurisdiction from


 


60

















 


the execution, delivery or
registration of any Notes or any other document or instrument referred to
therein (other than a transfer of the Notes), or the receipt of any payments
with respect to the Notes, excluding (x) any such taxes, charges or similar
levies imposed by any jurisdiction outside Luxembourg, Ireland, the United
States or any jurisdiction in which a Paying Agent is located,  or (y) those resulting from, or required to
be paid in connection with, the enforcement of the Notes or any other such
document or instrument following the occurrence of any Event of Default with
respect to the Notes.


 


(e)                                  The foregoing
obligations will survive any termination, defeasance or discharge of the
Indenture.


 


SECTION 4.17.  Corporate Existence.  Except as otherwise permitted by Article V,
the Company and each of the Guarantors shall do or cause to be done all things
necessary to preserve and keep in full force and effect its respective
corporate existence and the corporate, partnership, limited liability or other
existence of each of them in accordance with the respective organizational
documents (as the same may be amended from time to time) of each such Person
and their rights (charter and statutory).


 


SECTION 4.18.  Investment Company Status.  For so long as the Notes are outstanding,
the Company shall not become an Investment Company as defined under the U.S.
Investment Company Act of 1940, as amended and the rules and regulations
thereunder (the “Investment Company Act”), that is subject to regulation
under the Investment Company Act.  For
purposes of establishing the compliance of the Company with this Section 4.18,
any exemption which is or would become available under Section 3(c)(1) or 3(c)(7)
of the Investment Company Act will be disregarded.


 


SECTION 4.19.  Compliance Certificate; Notice of Default.  The Company shall deliver to the Trustee,
within 90 days after the end of each fiscal year, an Officer’s Certificate
stating that, to the best of the signer’s knowledge, no Default occurred during
such year and at the date of such certificate there is no Default which has
occurred and is continuing or, if such signer does know of such Default, the
certificate shall describe its status, with particularity and what action the
Company is taking or proposes to take with respect thereto.  The Officer’s Certificate shall also notify
the Trustee should the Company elect to change the manner in which it fixes its
fiscal year end.  Upon becoming aware of
a Default, the Company also shall deliver to the Trustee, within 30 days
thereafter, written notice of any events of which it is aware which would
constitute a Default, their status and what action the Company is taking or
proposes to take in respect thereof.


 


ARTICLE V


 


SUCCESSOR CORPORATION


 


SECTION 5.1.  Merger, Consolidation and Sale of Assets.  (a) 
The Company will not in a single transaction or series of related
transactions, consolidate with or merge with or into any Person, or sell,
assign, transfer, lease, convey or otherwise dispose of (or cause or permit any
Restricted Subsidiary of the Company to sell, assign, transfer, lease, convey
or otherwise dispose


 


61

















 


of) all or substantially all of
the Company’s assets (determined on a consolidated basis for the Company and
the Company’s Restricted Subsidiaries) whether as an entirety or substantially
as an entirety to any Person unless:


 


(1)                                  either:


 


(a)                                  the Company shall be
the surviving or continuing corporation; or


 


(b)                                 the Person (if other
than the Company) formed by such consolidation or into which the Company is
merged or the Person which acquires by sale, assignment, transfer, lease,
conveyance or other disposition the properties and assets of the Company and of
the Company’s Restricted Subsidiaries substantially as an entirety (the “Successor
Company”);


 


(x)                                   shall
be a corporation organized and validly existing under the laws of the United
States, any State thereof or the District of Columbia or any member state of
the European Union on the date of this Indenture; and


 


(y)                                 shall
expressly assume, by supplemental indenture (in form and substance satisfactory
to the Trustee), executed and delivered to the Trustee, the due and punctual
payment of the principal of, and premium, if any, and interest on all of the
Notes and the performance of every covenant of the Notes and this Indenture on
the part of the Company to be performed or observed;


 


(2)                                  immediately after
giving effect to such transaction and the assumption contemplated by Section 5.1(a)(1)(b)(y)
above (including giving effect to any Indebtedness and Acquired Indebtedness
incurred or anticipated to be incurred in connection with or in respect of such
transaction), the Company or such Successor Company, as the case may be, shall
be able to incur at least €1.00 of
additional Indebtedness pursuant to Section 4.3(a);


 


(3)                                  immediately before and immediately after
giving effect to such transaction and the assumption contemplated by Section
5.1(a)(1)(b)(y) (including, without limitation, giving effect to any
Indebtedness and Acquired Indebtedness incurred or anticipated to be incurred
and any Lien granted in connection with or in respect of the transaction), no
Default or Event of Default shall have occurred or be continuing; and


 


(4)                                  the Company or the Successor Company shall
have delivered to the Trustee an Officer’s Certificate and an Opinion of
Counsel, each stating that (A) such consolidation, merger, sale, assignment,
transfer, lease, conveyance or other disposition and, if a supplemental
indenture is required in connection with such transaction, such supplemental
indenture comply with the applicable provisions of this Indenture and that all


 


62

















 


conditions precedent in this
Indenture relating to such transaction have been satisfied, (B) any payment of
principal, redemption price or purchase price of, interest, premium, if any,
and Additional Amounts, if any, on the relevant Notes by the Company or the
Successor Company to a Holder of such Notes (or beneficial owner, if not a
Holder) after the consolidation or merger, conveyance, transfer or lease of
assets will be exempt from the Taxes defined under Section 4.16 and (C) no
other taxes on income (including taxable capital gains) will be payable under
the laws of any Relevant Taxing Jurisdiction by a Holder (or beneficial owner,
if not a Holder) who is not and is not deemed to be a resident of such Relevant
Taxing Jurisdiction and does not carry on a trade in such Relevant
Taxing Jurisdiction through a branch, agency or permanent establishment to
which the Notes of that Holder or beneficial owner are attributable (or, as the
case may be, does not carry on any business activities through a branch, agency or permanent
establishment in such Relevant Taxing Jurisdiction) in respect of the
acquisition, ownership or disposition of Notes, including the receipt of
principal, premium, if any, or interest, pursuant to the Notes.


 


(b)                                 For
purposes of Section 5.1(a), the transfer (by lease, assignment, sale or
otherwise, in a single transaction or series of transactions) of all or
substantially all of the properties or assets of one or more Restricted
Subsidiaries of the Company, the Capital Stock of which constitutes all or
substantially all of the properties and assets of the Company, shall be deemed
to be the transfer all or substantially all of the properties and assets of the
Company.


 


(c)                                  Notwithstanding
Sections 5.1(a) (2) and (3), the Company may merge with an Affiliate that is a
Person that has no material assets or liabilities and which was organized
solely for the purpose of reorganizing the Company in another jurisdiction.


 


(d)                                 Upon
any consolidation, combination or merger or any transfer of all or
substantially all of the assets of the Company in accordance with this Article
V in which the Company is not the continuing corporation, the successor Person
formed by such consolidation or into which the Company is merged or to which
such conveyance, lease or transfer is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under the Indenture
and the Notes with the same effect as if such surviving entity had been named
as such.


 


(e)                                  Each
Guarantor (other than any Guarantor whose Guarantee is to be released in
accordance with the terms of the Guarantee and the Indenture in connection with
any transaction complying with the provisions of Section 4.6) will not, and the
Company will not cause or permit any Guarantor to, consolidate with or merge
with or into any Person other than the Company or any other Guarantor unless:


 


(1)                                  the
entity formed by or surviving any such consolidation or merger (if other than
the Guarantor) is a corporation organized and existing under the laws of the
United States, or any State thereof or the District of Columbia or any member
of the European Union on the date of the Indenture or the jurisdiction of
formation of such Guarantor;


 


63

















 


(2)                                  such
entity assumes by supplemental indenture all of the obligations of the
Guarantor on the Guarantee; and


 


(3)                                  immediately
after giving effect to such transaction and the use of any net proceeds
therefrom on a pro forma
basis, the Company could satisfy Section 5.1(a) (2) and (3).


 


(f)                                    Any
merger or consolidation of a Guarantor with and into the Company (with the
Company being the surviving entity) or another Guarantor that is a Wholly Owned
Restricted Subsidiary of the Company need only comply with Section 5.1(a) (4).


 


(g)                                 In
the event of an occurrence of any of the events described in this Article V,
the Company will inform the Luxembourg Stock Exchange of the occurrence of such
event and provide a supplement to the Offering Memorandum setting forth
reasonable details concerning the occurrence of such event.  If and for so long as the Notes are listed
on the Luxembourg Stock Exchange and the rules of such exchange so require, the
Company will publish notice of the occurrence of any of the events described
above in Luxembourg in a daily newspaper with general circulation in Luxembourg
(which is expected to be the Luxemburger Wort).


 


ARTICLE VI


 


DEFAULT AND REMEDIES


 


SECTION 6.1.  Events of Default.  Whenever used herein with respect to the
Notes, “Event
of Default” means any one of the following events which shall have
occurred and be continuing:


 


(1)                                  the
failure to pay interest on any Note issued under this Indenture when due and
payable, which failure continues for a period of 30 days;


 


(2)                                  the
failure to pay the principal on any Note issued under this Indenture when due
and payable at its Stated Maturity, upon redemption or otherwise (including the
failure to make a payment to purchase Notes tendered pursuant to a Change of
Control Offer or a Net Proceeds Offer);


 


(3)                                  a
default in the observance or performance of any other covenant or agreement
contained in this Indenture which default continues for a period of 30 days
after the Company receives written notice specifying the default (and demanding
that such default be remedied) from the Trustee or the Holders of at least 25%
of the outstanding principal amount of the Notes (except in the case of a
default with respect to Section 5.1, which will constitute an Event of Default
with such notice requirement but without such passage of time requirement);


 


(4)                                  the
failure to pay at final maturity (giving effect to any applicable grace periods
and any extensions thereof) the stated principal amount of any Indebtedness of
the Company or any Restricted Subsidiary of the Company, or the acceleration of
the final


 


64

















 


stated
maturity of any such Indebtedness if the aggregate principal amount of such
Indebtedness, together with the principal amount of any other such Indebtedness
in default for failure to pay principal at final stated maturity or which has
been accelerated, aggregates €10.0 million or more at any time;


 


(5)                                  one
or more judgments in aggregate amount in excess of €10.0 million shall have
been rendered against the Company or any of its Restricted Subsidiaries and
such judgments remain undischarged, unpaid or unstayed for a period of 60 days
after such judgment or judgments become final and non-appealable (the “judgment
default provision”);


 


(6)                                  (A)
a court having jurisdiction in the premises enters a decree or order for (i)
appointment of a receiver, liquidator, assignee, custodian, trustee, examiner,
administrator, sequestrator or similar official of the Company or any of the
Company’s Significant Subsidiaries or a group of Restricted Subsidiaries that,
taken together (as of the date of the latest audited consolidated financial
statements of the Company and its Restricted Subsidiaries), would constitute a
Significant Subsidiary of the Company or for all or substantially all of the
property and assets of the Company or any of its Significant Subsidiaries or a
group of Restricted Subsidiaries that, taken together (as of the date of the
latest audited consolidated financial statements of the Company and its
Restricted Subsidiaries), would constitute a Significant Subsidiary of the
Company, which appointment remains in effect for a period of 30 consecutive
days, or (ii) the winding up or liquidation of the affairs of the Company or
any of its Significant Subsidiaries or a group of Restricted Subsidiaries that,
taken together (as of the date of the latest audited consolidated financial
statements of the Company and its Restricted Subsidiaries), would constitute a
Significant Subsidiary of the Company and, in each case, such decree or order
shall remain unstayed and in effect for a period of 30 consecutive days; or (B)
the Company or any of its Significant Subsidiaries or a group of Restricted
Subsidiaries that, taken together (as of the date of the latest audited
consolidated financial statements of the Company and its Restricted
Subsidiaries), would constitute a Significant Subsidiary of the Company (i)
commences a voluntary case (including taking any action for the purpose of
winding up) under any applicable bankruptcy, insolvency, examination, court
protection or other similar law now or hereafter in effect, or consents to the
entry of an order for relief in an involuntary case under any such law, (ii)
consents to the appointment of or taking possession by a receiver, liquidator,
assignee, custodian, trustee, examiner, administrator, sequestration or similar
official of the Company or any of its Significant Subsidiaries or a group of
Restricted Subsidiaries that, taken together (as of the date of the latest
audited consolidated financial statements of the Company and its Restricted
Subsidiaries), would constitute a Significant Subsidiary of the Company or for
all or substantially all of the property and assets of the Company or any of
its Significant Subsidiaries or a group of Restricted Subsidiaries that, taken
together (as of the date of the latest audited consolidated financial statements
of the Company and its Restricted Subsidiaries), would constitute a Signigicant
Subsidiary of the Company or (iii) effects any general assignment for the
benefit of creditors ( the “bankruptcy provisions”); or


 


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(7)                                  any
Guarantee ceases to be in full force and effect or any Guarantee is declared
null and void and unenforceable in a judicial proceeding or any Guarantee is
found to be invalid or any Guarantor denies its liability under its Guarantee (other
than by reason of release of a Guarantor in accordance with this Indenture).


 


If an Event of
Default (other than an Event of Default specified in clause (6) above with
respect to the Company) shall occur and be continuing, the Trustee or the
Holders of at least 25% in principal amount of outstanding Notes may declare
the principal of and accrued interest on all the Notes to be due and payable by
notice in writing to the Company and the Trustee specifying the respective
Event of Default and that it is a “notice of acceleration” (the “Acceleration
Notice”), and the same shall become immediately due and payable.


 


SECTION 6.2.   Acceleration.  (a) 
If an Event of Default (other than an Event of Default described in
clause (6) of Section 6.1 with respect to the Company) occurs and is
continuing, the Trustee by notice in writing to the Company or the Holders of
at least 25% in principal amount of the outstanding Notes under this Indenture
by notice in writing to the Company and the Trustee, may, and the Trustee at
the request of such Holders shall, declare the principal of, premium, if any,
and accrued and unpaid interest and Additional Amounts, if any, on all the
Notes under this Indenture to be due and payable.  Upon such a declaration, such principal, premium and accrued and
unpaid interest and Additional Amounts will be due and payable immediately.


 


(b)                                 If
an Event of Default described in clause (6) of Section 6.1 with respect to the
Company occurs and is continuing, all unpaid principal of, and premium, if any,
and accrued and unpaid interest and Additional Amounts, if any, on all the
Notes will ipso
facto become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Holders.


 


SECTION 6.3.   Other Remedies.  If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy by proceeding at law or
in equity to collect the payment of principal of or, premium, if any, interest,
or Additional Amounts, if any, on the Notes or to enforce the performance of
any provision of the Notes or this Indenture.


 


SECTION 6.4.   The Trustee May Enforce Claims Without
Possession of Securities.  All
rights of action and claims under this Indenture or the Notes may be prosecuted
and enforced by the Trustee without the possession of any of the Notes or the
production thereof in any proceeding relating thereto.


 


SECTION 6.5.   Rights and Remedies Cumulative.  Except as otherwise provided with respect to
the replacement or payment of mutilated, destroyed, lost or wrongfully taken
Notes in Section 2.8, no right or remedy herein conferred upon or reserved to
the Trustee or to the Holders of Notes is intended to be exclusive of any other
right or remedy, and every right and remedy shall, to the extent permitted by
law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise.  The assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the concurrent or subsequent
assertion or employment of any other appropriate right or remedy.


 


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SECTION 6.6.   Delay or Omission Not Waiver.  No delay or omission of the Trustee or of
any Holder of any Note to exercise any right or remedy accruing upon any Event
of Default shall impair any such right or remedy or constitute a waiver of any
such Event of Default or an acquiescence therein.  Every right and remedy given by this Article or by law to the
Trustee or to the Holders of Notes may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders of Notes.


 


SECTION 6.7.   Waiver of Past Defaults.  Subject to Sections 6.10 and 9.2, at any
time after a declaration of acceleration with respect to the Notes as described
in Section 6.2, the Holders of not less than a majority in principal amount of
the outstanding Notes by written notice to the Trustee, may, on behalf of the
Holders of all the Notes, waive any past or existing Default or Event of
Default (except with respect to a continuing Default or Event of Default in the
payment of principal, premium, if any, interest and Additional Amounts, if any)
and rescind and annul a declaration of acceleration and its consequences if (i)
all existing Events of Default, other than the nonpayment of the principal of,
premium, if any, interest and Additional Amounts, if any, that have become due
solely by such declaration of acceleration, have been cured or waived and (ii)
the rescission would not conflict with any judgment or decree of a court of
competent jurisdiction.  Such waiver
shall not excuse a continuing Event of Default in the payment of principal,
premium, if any, interest or Additional Amounts, if any, on such Note held by a
non-consenting Holder.  The Company
shall deliver to the Trustee (a) an Officer’s Certificate stating (i) that the
Holders of the requisite percentage in aggregate principal amount of the
outstanding Notes have consented to such waiver and attaching copies of such
consents and (ii) whether the Officer is aware of any judgment or decree of a
court of competent jurisdiction that could conflict with such rescission, and
(b) if pursuant to (a)(ii) above an Officer states that they are aware of any
judgment or decree of a court of competent jurisdiction that could conflict
with such rescission, an Opinion of Counsel that such judgment or decree of a
court of competent jurisdiction does not conflict with such rescission.  When a Default or Event of Default is waived,
it is cured and ceases.


 


SECTION 6.8.   Control by Majority.  Subject to Section 2.10, the Holders of not
less than a majority in principal amount of the outstanding Notes may, by
written notice to the Trustee, direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee or exercising any trust
or power conferred on it.  Subject to
Section 7.1, however, the Trustee may refuse to follow any direction that
conflicts with any applicable law or this Indenture or that the Trustee
determines is unduly prejudicial to the rights of another Holder of Notes, or
that would involve the Trustee in liability or expense; provided, however, that the Trustee may take any other
action deemed proper by the Trustee which is not inconsistent with such
direction.  Prior to taking any action
under this Indenture, the Trustee will be entitled to indemnification
reasonably satisfactory to it against all losses, liabilities and expenses
caused by taking or not taking such action.


 


SECTION 6.9.   Limitation on Suits.  Except to enforce the right to receive
payment of principal or interest when due, no Holder may pursue any remedy with
respect to this Indenture or the Notes, unless:


 


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(1)                                  such
Holder has previously given the Trustee written notice that an Event of Default
has occurred is continuing;


 


(2)                                  Holders
of at least 25% in aggregate principal amount of the outstanding Notes have
requested the Trustee in writing to pursue the remedy;


 


(3)                                  such
Holders have offered the Trustee reasonable security or indemnity against any
loss, liability or expense;


 


(4)                                  the
Trustee has not complied with such request within 60 days after the receipt of
the request and the offer of security or indemnity; and


 


(5)                                  the
Holders of a majority in aggregate principal amount of the outstanding Notes
have not given the Trustee a direction that, in the opinion of the Trustee, is
inconsistent with such request within such 60-day period.


 


SECTION 6.10.   Rights of Holders to Receive Payment.  Notwithstanding any other provision of this
Indenture, the right of any Holder to receive payment of principal of and
interest on a Note, on or after the respective due dates expressed in such
Note, or to bring suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the consent of such
Holder.


 


SECTION 6.11.   Collection Suit by Trustee.  If an Event of Default in payment of
principal, premium, if any, interest, or Additional Amounts, if any, specified
in clause (1) or clause (2) of Section 6.1 occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express trust
against the Company or any other obligor on the Notes for the whole amount of
principal, premium, if any, and accrued interest remaining unpaid, or
Additional Amounts, if any.


 


SECTION 6.12.   Trustee May File Proofs of Claim.  The Trustee may file such proofs of claim
and other papers or documents as may be necessary or advisable in order to have
the claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel,
accountants and experts) and the Holders allowed in any judicial proceedings
relating to the Company or any other obligor on the Notes or their respective
creditors or property and shall be entitled and empowered to collect and
receive any monies or other property payable or deliverable on any such claims
and to distribute the same, and any Custodian in any such judicial proceedings
is hereby authorized by each Holder to make such payments to the Trustee and,
in the event that the Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Trustee any amount due to it for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agent and counsel, and any other amounts due the Trustee under Section
7.6.  To the extent that the payment of
any such compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel, and any other amounts due the Trustee under Section 7.6
hereof out of the estate in any such proceeding, shall be denied for any
reason, payment of the same shall be secured by a Lien on, and shall be paid
out of, any and all distributions, dividends, money, securities


 


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and other properties which the
Holders of the Notes may be entitled to receive in such proceeding whether in
liquidation or under any plan of reorganization or arrangement or otherwise.


 


SECTION 6.13.   Priorities.  If the Trustee collects any money or
property pursuant to this Article VI, it shall pay out the money or property in
the following order:


 


First:  to the Trustee, the
Agents and their agents and attorneys for amounts due under Section 7.6,
including payment of all compensation, fees, expenses and liabilities incurred,
and all advances made, by the Trustee and the costs and expenses of collection;


 


Second:  to Holders for amounts
due and unpaid on the Notes for principal, premium, if any, interest, and
Additional Amounts, if any, ratably, without preference or priority of any
kind, according to the amounts due and payable on the Notes for principal,
premium, if any, interest, and Additional Amounts, if any, respectively; and


 


Third:  to the Company or any
other obligor on the Notes, as their interests may appear, or as a court of
competent jurisdiction may direct.


 


The Trustee,
upon prior notice to the Company, may fix a record date and payment date for
any payment to Holders pursuant to this Section 6.13; provided that the failure to
give any such notice shall not affect the establishment of such record date or
payment date for Holders pursuant to this Section 6.13.


 


SECTION 6.14.   Restoration of Rights and Remedies.  If the Trustee or any Holder of any Note has
instituted any proceeding to enforce any right or remedy under this Indenture
and such proceeding has been discontinued or abandoned for any reason, or has
been determined adversely to the Trustee or to such Holder, then and in every
such case, subject to any determination in such proceeding, the Company, the
Trustee and the Holders of Notes shall be restored severally and respectively
to their former positions hereunder and thereafter all rights and remedies of
the Trustee and the Holders of Notes shall continue as though no such
proceeding had been instituted.


 


SECTION 6.15.   Undertaking for Costs.  In any suit for the enforcement of any right
or remedy under this Indenture or in any suit against the Trustee for any
action taken or omitted by it as Trustee, a court in its discretion may require
the filing by any party litigant in the suit of an undertaking to pay the costs
of the suit, and the court in its discretion may assess reasonable costs,
including reasonable attorneys’ fees and expenses, against any party litigant
in the suit, having due regard to the merits and good faith of the claims or
defenses made by the party litigant. 
This Section 6.15 does not apply to a suit by the Trustee, a suit by a
Holder pursuant to Section 6.10, or a suit by a Holder or Holders of more than
10% in principal amount of the outstanding Notes.


 


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ARTICLE VII


 


TRUSTEE


 


SECTION 7.1.   Duties of Trustee.  vi) 
If an Event of Default actually known to a Responsible Officer of the
Trustee has occurred and is continuing, the Trustee shall exercise such of the
rights and powers vested in it by this Indenture and use the same degree of
care and skill in their exercise as a prudent person would exercise or use
under the circumstances in the conduct of his or her own affairs.  Subject to such provisions, the Trustee will
be under no obligation to exercise any of its rights or powers under this
Indenture at the request of any of the Holders of Notes, unless they shall have
offered to the Trustee reasonable indemnity or security against any loss,
liability or expense.


 


(a)                                  Except
during the continuance of an Event of Default actually known to the Trustee:


 


(1)                                  The
Trustee and the Agents will undertake to perform only those duties as are
specifically set forth herein and no others and no implied covenants or
obligations shall be read into this Indenture against the Trustee or the
Agents.


 


(2)                                  In
the absence of bad faith on their part, the Trustee and the Agents may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions and such other
documents delivered to them and conforming to the requirements of this
Indenture.  However, in the case of any
such certificates or opinions which by any provision hereof are required to be
furnished to the Trustee or the Agents, the Trustee or the Agents, as
applicable, shall examine the certificates and opinions to determine whether or
not they conform to the requirements of this Indenture (but need not confirm or
investigate the accuracy of mathematical calculations or other facts stated
therein).


 


(b)                                 The
Trustee may not be relieved from liability for its own negligent action, its
own negligent failure to act, or its own willful misconduct, except that:


 


(1)                                  This
paragraph does not limit the effect of subsection (b) of this Section 7.1.


 


(2)                                  Neither
the Trustee nor any Agent shall be liable for any error of judgment made in
good faith by a Responsible Officer of such Trustee or Agent, unless it is
proved that the Trustee or such Agent was negligent in ascertaining the
pertinent facts.


 


(3)                                  The
Trustee shall not be liable with respect to any action it takes or omits to
take in good faith in accordance with a direction received by it pursuant to
Section 6.8.


 


(c)                                  No
provision of this Indenture shall require the Trustee or any Agent to expend or
risk its own funds or otherwise incur any liability in the performance of any
of its duties hereunder or to take or omit to take any action under this
Indenture or take any action at the request


 


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or direction of Holders if it
shall have reasonable grounds for believing that repayment of such funds is not
assured to it or it does not receive an indemnity satisfactory to it in its
sole discretion against such risk, liability, loss, fee or expense which might
be incurred by it in compliance with such request or direction, nor shall the
Trustee be required to do anything which is illegal or contrary to applicable
laws.


 


(d)                                 Whether
or not therein expressly so provided, every provision of this Indenture that in
any way relates to the Trustee is subject to subsections (a), (b), (c) and (d)
of this Section 7.1.


 


(e)                                  Any
provision hereof relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section 7.1.


 


(f)                                    The
rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its rights to be indemnified, are extended to,
and shall be enforceable by the Trustee in each of its capacities in which it
may serve, and to each Agent, and such custodian agents and other persons
employed to act hereunder.


 


SECTION 7.2.   Rights of Trustee.  Subject to Section 7.1:


 


(a)                                  The
Trustee and each Agent may rely conclusively on and shall be protected from
acting or refraining from acting based upon any document believed by them to be
genuine and to have been signed or presented by the proper person.  Neither the Trustee nor any Agent shall be
bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent order, approval, appraisal, bond, debenture, note, coupon,
security or other paper, document or electronic communication, but the Trustee
or Agent, as the case may be, in its discretion, may make reasonable further
inquiry or investigation into such facts or matters stated in such
document.  The Trustee shall not be
deemed to have notice or any knowledge of any matter (including without
limitation Defaults or Events of Default) unless a Responsible Officer of the
Trustee has actual knowledge thereof or unless written notice thereof is
received by the Trustee at the Corporate Trust Office and such notice
references the Notes and this Indenture.


 


(b)                                 Any
request, direction, order or demand of the Company mentioned herein shall be
sufficiently evidenced by an Officer’s Certificate or Company Order and any
resolution of the Board of Directors of the Company may be sufficiently
evidenced by a Board Resolution in respect of such entity.


 


(c)                                  (i)
Whenever in the administration of this Indenture the Trustee, acting
reasonably, shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the Trustee
(unless other evidence be herein specifically prescribed) may, in the absence
of bad faith on its part, conclusively rely upon an Officer’s Certificate; and
(ii) the Trustee may consult with counsel, financial or other advisers of its
selection and the advice of such counsel, financial or other advisers or any
Opinion of Counsel, as to any legal matter, shall be full and complete
authorization and protection from liability in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon, and
any


 


71

















 


certificate or report of the
auditors, accountants or advisers of the Trustee or of any other person called
for or provided to the Trustee (whether or not addressed to the Trustee) in
accordance with or for the purposes of these presents may be relied upon by the
Trustee as sufficient and conclusive evidence of the facts stated therein
notwithstanding that such certificate or report and/or any engagement letter or
other document entered into by the Trustee in connection therewith contains a
monetary or other limit on the liability of such persons in respect thereof.


 


(d)                                 The
Trustee and any Agent may act through their attorneys and agents and shall not
be responsible for the misconduct or negligence of any agent (other than an
agent who is an employee of the Trustee or such Agent) appointed with due care.


 


(e)                                  The
Trustee shall not be liable for any action it takes or omits to take in good
faith which it reasonably believes to be authorized or within its rights or
powers conferred upon it by this Indenture; provided, however, that
the Trustee’s conduct does not constitute willful misconduct, negligence or bad
faith.


 


(f)                                    The
Trustee or any Agent may consult with counsel of its selection and the written
advice or opinion of such counsel as to matters of law shall be full and
complete authorization and protection from liability in respect of any action
taken, omitted or suffered by it hereunder in good faith and in accordance with
the advice or opinion of such counsel.


 


(g)                                 Subject
to Sections 9.1 and Section 9.2, the Trustee may (but shall no be obligated
to), without the consent of the Holders, give any consent, waiver or approval
required by the terms hereof.  The
Trustee shall be entitled to request and conclusively rely upon an Opinion of
Counsel with respect to whether any consent, waiver, approval, amendment or
modification shall materially adversely effect the rights of any Holder.


 


(h)                                 The
Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts or
matters as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by agent or attorney.


 


(i)                                     The
Trustee shall have no duty to inquire as to the performance of the covenants of
the Company in Article IV hereof.


 


(j)                                     The
Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys and the Trustee
shall not be responsible for any misconduct or negligence on the part of any
agent or attorney (other than an agent or attorney who is an employee of the
Trustee) appointed with due care by it hereunder.


 


(k)                                  The
Trustee shall not be liable for any action taken, suffered, or omitted to be
taken by it in good faith and reasonably believed by it to be authorized or
within the discretion or


 


72

















 


rights or powers conferred upon
it by this Indenture, except in case of willful misconduct, negligence or bad
faith.


 


(l)                                     The
Trustee shall not be required to give any bond or surety with respect to the
performance of its duties or the exercise of its powers under this Indenture.


 


(m)                               In
the event the Trustee receives inconsistent or conflicting request and
indemnity from two or more Holders or groups of Holders, each representing less
than a majority in aggregate principal amount of the then outstanding Notes,
each pursuant to the provisions of this Indenture, the Trustee, in its sole
discretion, may determine what action, if any, shall be taken.


 


(n)                                 The
permissive rights of the Trustee to do things enumerated in this Indenture
shall not be construed as a duty and the Trustee shall not be answerable for
other than its willful misconduct, negligence or bad faith.


 


(o)                                 The
rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to,
and shall be enforceable by, the Trustee in each of its capacities hereunder,
and to each agent, custodian and other Person employed to act hereunder.


 


(p)                                 The
Trustee may request that the Company deliver an Officer’s Certificate setting
forth the names of individuals and/or titles of officers authorized at such
time to take specified actions pursuant to this Indenture, which Officer’s
Certificate may be signed by any person authorized to sign an Officer’s
Certificate, including any person as so authorized in any such certificate
previously delivered and not superseded.


 


SECTION 7.3.   Individual Rights of Trustee.  The Trustee or any Agent in its respective
individual or any other capacity may become the owner or pledgee of Notes and
may otherwise deal with the Company, its Subsidiaries, or their respective
Affiliates with the same rights it would have if it were not the Trustee or an
Agent.  The Trustee must comply with
Sections 7.9 and 7.10.


 


SECTION 7.4.   Trustee’s Disclaimer.   The Trustee and the Agents shall not be
responsible for and make no representation as to the validity, effectiveness,
correctness or adequacy of this Indenture, the offering materials related to
the Indenture or the Notes; the Trustee shall not be accountable for the
Company’s use of the proceeds from the Notes or any money paid to the Company
or upon the Company’s direction under any provision hereof; the Trustee shall
not be responsible for the use or application of any money received by any
Agent and it shall not be responsible for any statement or recital herein of
the Company, or any document issued in connection with the sale of Notes or any
statement in the Notes other than the Trustee’s certificate of
authentication.  The Trustee shall not
be charged with knowledge, or be deemed to have notice, of any Default or Event
of Default unless (i) a Responsible Officer of the Trustee assigned to its
Corporate Trust Office shall have actual knowledge thereof or (ii) the Trustee
shall have received notice thereof in accordance with Section 6.1 from the
Company or the Holders of at least 25% in aggregate principal amount of the
Notes then outstanding.


 


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SECTION 7.5.   Notice of Default.  If an
Event of Default occurs and is continuing and a Responsible Officer of the
Trustee receives actual notice of such event, the Trustee shall mail to each
Holder, (in the case of Definitive Notes, as their names and addresses appear
on the list of Holders described in Section 2.5) notice of the uncured Default
or Event of Default within 90 days after the Trustee receives such notice.  Except in the case of Default or Event of
Default in payment of principal of, premium, if any, interest, or Additional
Amounts, if any, on any Note, including the failure to make payment on (i) the
Change of Control Payment Date pursuant to a Change of Control Offer or (ii)
the date required for payment pursuant to a Net Proceeds Offer, the Trustee may
withhold the notice if and so long as a committee of its Responsible Officers
in good faith determines that withholding the notice is in the interest of the
Holders.


 


The Company
shall promptly notify the Trustee in writing if subsequent to the date hereof
the Notes become listed on any securities exchange or of any delisting thereof.


 


SECTION 7.6.   Compensation and Indemnity.  The
Company shall pay to the Trustee and Agents from time to time such compensation
as the Company and the Trustee shall from time to time agree in writing for its
acceptance of this Indenture and services hereunder.  The Trustee’s and the Agents’ compensation shall not be limited
by any law on compensation of a trustee of an express trust.  The Company shall reimburse the Trustee and
Agent upon request for all reasonable disbursements, expenses and advances
(including reasonable fees and expenses of their agents and counsel) incurred
or made by it in addition to the compensation for their services, except any
such disbursements, expenses and advances as may be attributable to the
Trustee’s or any Agent’s negligence, willful misconduct or bad faith.  For the avoidance of doubt, the expense
related to any Opinion of Counsel that is required hereunder or which the
Trustee may otherwise properly request hereunder shall be an expense of the
Company.


 


The Company
shall indemnify each of the Trustee, any predecessor Trustee and the Agents
(which, for purposes of this paragraph, include such Trustee’s and Agents’
affiliates, officers, directors, employees and agents) and in any other
capacity the Trustee may serve hereunder for, and hold them harmless against,
any and all loss, damage, claim, expense or liability (including taxes (other
than taxes based on the income of the Trustee or franchise, doing business or
other similar taxes imposed on the Trustee)) incurred by the Trustee or an
Agent without negligence, willful misconduct or bad faith on the part of any of
them, in connection with acceptance of administration of this trust and
performance of its duties under this Indenture, including the reasonable expenses
and attorneys’ fees and expenses of defending itself against any claim of
liability arising hereunder.  The
Trustee and the Agents shall notify the Company promptly of any claim asserted
against the Trustee or such Agent for which it may seek indemnity.  However, the failure by the Trustee or the
Agent to so notify the Company shall not relieve the Company of its obligations
hereunder.  The Company may defend the
claim and the Trustee or such Agent shall cooperate in the defense (and may
employ its own counsel reasonably satisfactory to the Trustee) at the Company’s
expense.  The Trustee or such Agent may
have separate counsel from the Company in the defense of any claim against them
and the Company shall pay the reasonable fees and expenses of such counsel.  The Company need not pay for any settlement
made without its written consent, which consent shall not be unreasonably
withheld.


 


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To secure the
Company’s payment obligations in this Section 7.6, the Trustee and the Agents
shall have a claim prior to the Notes against all money or property held or
collected by the Trustee and the Agents, in their capacities as Trustee or
Agent respectively, except money or property held in trust to pay principal or
premium, if any, and Additional Amounts, if any, or interest on particular
Notes.


 


When the
Trustee or an Agent incurs expenses or renders services after the occurrence of
an Event of Default specified in clause (6) of Section 6.1, the expenses
(including the reasonable fees and expenses of its agents and counsel) and the
compensation for their services may, to the extent permitted by applicable law,
be preferred over the status of the Holders in a proceeding under any
Bankruptcy Law and are intended, to the extent permitted by applicable law, to
constitute expenses of administration under any Bankruptcy Law.  The Company’s obligations under this Section
7.6 and any claim arising hereunder shall survive the termination of this
Indenture, the resignation or removal of any Trustee or Agent, the discharge of
the Company’s obligations pursuant to Article VIII and any rejection or
termination under any Bankruptcy Law.


 


SECTION 7.7.  Replacement of Trustee.  The Trustee and any Agent may resign at any
time by so notifying the Company in writing. 
The Holders of a majority in principal amount of the outstanding Notes
may remove the Trustee or any Agent by so notifying the Company and the Trustee
or such Agent, as the case may be, in writing and may appoint a successor Trustee
or Agent with the Company’s consent.  A
resignation or removal of the Trustee or any Agent and appointment of a
successor Trustee or Agent, as the case may be, shall become effective only
upon the successor Trustee’s or Agent’s acceptance of appointment, as the case
may be, as provided in this section.  If
an instrument of acceptance by a successor Trustee shall not have been
delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.  The Company may remove the Trustee or an
Agent if:


 


(1)                                  the
Trustee or Agent, as the case may be, fails to comply with Section 7.9 or
Section 7.10;


 


(2)                                  the
Trustee or Agent, as the case may be, is adjudged a bankrupt or an insolvent or
an order for relief is entered with respect to the Trustee or Agent, as the
case may be, under any Bankruptcy Law or under any other applicable law;


 


(3)                                  a
receiver or public officer takes charge of the Trustee or Agent, as the case
may be, or its respective property or affairs; or


 


(4)                                  the
Trustee or Agent, as the case may be, becomes incapable of acting with respect
to its duties hereunder.


 


If the Trustee
or an Agent resigns or is removed or if a vacancy exists in the office of
Trustee or Agent for any reason, the Company, by a Board Resolution, shall
promptly appoint a successor Trustee or Agent, as the case may be.  Within one year after the successor Trustee
or Agent takes office, the Holders of a majority in aggregate principal amount
of the then outstanding


 


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Notes may, with the Company’s
consent, appoint a successor Trustee or Agent, as the case may be, to replace
the successor Trustee or Agent appointed by the Company.


 


A successor
Trustee or Agent, as the case may be, shall deliver a written acceptance of its
appointment to the retiring Trustee or Agent and to the Company.  Promptly after that, the retiring Trustee or
Agent, as the case may be, shall transfer, after payment of all sums then owing
to the Trustee or Agent, as the case may be, pursuant to Section 7.6, all
property held by it as Trustee or Agent to the successor Trustee or Agent.  Subject to the Lien provided in Section 7.6,
the resignation or removal of the retiring Trustee or Agent, as the case may
be, shall become effective, and the successor Trustee or Agent, as the case may
be, shall have all the rights, powers and duties of the Trustee or Agent under
this Indenture.  The Company shall mail
notice of the succession of a successor Trustee or Agent to each Holder.  If the Company fails to give such notice
within 10 days after acceptance of appointment by the successor Trustee or
Agent, the successor Trustee shall cause such notice to be given at the
Company’s expense.


 


If a successor
Trustee or Agent does not take office within 60 days after the retiring Trustee
or Agent resigns or is removed, the retiring Trustee or Agent (as the case may
be), the Company or any Holder who has been a bona fide Holder for not
less than 6 months may petition any court of competent jurisdiction, at the
expense of the Company, for the appointment of a successor Trustee or Agent.


 


If the Trustee
or Agent after written request by any Holder who has been a Holder for at least
six months fails to comply with Section 7.9, such Holder may petition any court
of competent jurisdiction for the removal of the Trustee or Agent, as the case
may be, and the appointment of a successor thereto.


 


Notwithstanding
replacement of the Trustee or Agent pursuant to this Section 7.7, the Company’s
obligations under Section 7.6 relating to indemnification and any amounts
already owing or accrued at the time of such replacement shall continue for the
benefit of the retiring Trustee or Agent, as the case may be, and the Company
shall pay to any replaced or removed Trustee or Agent all amounts owed under
Section 7.6 upon such replacement or removal.


 


SECTION 7.8.  Successor Trustee by Merger, etc.  If the Trustee consolidates with, merges or
converts into, or transfers all or substantially all of its corporate trust
business to, another corporation or banking association, the resulting,
surviving or transferee corporation without any further act shall, if such
resulting, surviving or transferee corporation is otherwise eligible hereunder,
without the execution of any paper or further act on the part of any the
parties hereto, be the successor Trustee. 
In case any Notes shall have been authenticated, but not delivered, by
the Trustee then in office, any successor by consolidation, merger or
conversion to such authenticating Trustee may adopt such authentication and
deliver the Notes so authenticated with the same effect as if such successor
Trustee had itself authenticated such Notes.


 


In case any of
the Notes shall not have been authenticated by such predecessor Trustee, any
successor Trustee may authenticate such Notes either in the name of any
predecessor hereunder or in the name of the successor Trustee.  In all such cases such certificates shall
have the full force and effect which this Indenture provides for the
certificate of authentication of the


 


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Trustee; provided, however, that the right to adopt the
certificate of authentication of any predecessor Trustee or to authenticate
Notes in the name of any predecessor Trustee shall apply only to its successor
or successors by merger, conversion or consolidation.


 


SECTION 7.9.  Corporate Trustee Required; Eligibility.  There shall be at all times a Trustee
hereunder which shall be eligible to act as Trustee under the TIA and shall
have a combined capital and surplus of at leaset US$50,000,000 and have a
Corporate Trust Office in London, England. 
If such Person publishes reports of condition at least annually,
pursuant to law or to the requirements of a federal, State or District of
Columbia supervising or examining authority within the United States of
America, then for the purposes of this Section, the combined capital and surplus
of such Person shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published.  If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
promptly in the manner and with the effect specified in this Article.


 


SECTION 7.10.  Disqualification; Conflicting Interests.  If the Trustee has or shall acquire a
conflicting interest within the meaning of the TIA, the Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the TIA and this Indenture.


 


SECTION 7.11.  Preferential Collection of Claims Against
the Company.  The Trustee, in its
capacity as Trustee hereunder, shall comply with TIA Section 311(a), excluding
any creditor relationship listed in TIA Section 311(b).  A Trustee who has resigned or been removed
shall be subject to TIA Section 311(a) to the extent indicated.


 


SECTION 7.12.  Force Majeure.  In no event shall the Trustee, in each of
its capacities hereunder, be liable for any failure or delay in the performance
of its obligations under this Indenture because of circumstances beyond its
control, including, but not limited to, acts of God, flood, war (whether
declared or undeclared), terrorism, fire, riot, embargo and government action,
including any laws, ordinances, regulations or the like which restrict or
prohibit the providing of the services or the obligations contemplated by this
Indenture.


 


ARTICLE VIII


 


DEFEASANCE AND
SATISFACTION AND DISCHARGE OF INDENTURE


 


SECTION 8.1.  Option to Effect Legal Defeasance or
Covenant Defeasance.  The Company
may at its option, at any time (subject to the terms of the Credit Agreement
and the Private Placement Notes), with respect to the Notes, elect to have
either Section 8.2 or 8.3 be applied to all outstanding Notes upon compliance
with the conditions set forth below in this Article VIII; provided, however, that the Increditor Agreement has been terminated.


 


SECTION 8.2.  Legal Defeasance and Discharge.  Upon the Company’s exercise under Section
8.1, of the option applicable to this Section 8.2, the Company shall be deemed
to have been discharged from its obligations with respect to all outstanding
Notes on the date the conditions set forth below are satisfied (hereinafter, “Legal Defeasance”).  For this purpose,
such Legal


 


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Defeasance means that the
Company and the Guarantors shall be deemed to have paid and discharged all the
obligations relating to the outstanding Notes and the Notes shall thereafter be
deemed to be “outstanding” only for the purposes of Section 8.6, Section 8.8
and the other Sections of this Indenture referred to below in this Section 8.2,
and to have satisfied all of their respective other obligations under such
Notes and this Indenture and cured all then existing Events of Default (and the
Trustee, on demand of and at the expense of the Company, shall execute proper
instruments acknowledging the same), except for the following which, as regards
the Company, shall survive until otherwise terminated or discharged hereunder:


 


(1)                                  the
rights of Holders of outstanding Notes to receive payments in respect of the
principal of, premium, if any, interest, and Additional Amounts, if any, on
such Notes when such payments are due (including on a Redemption Date) from the
trust created pursuant to this Indenture;


 


(2)                                  the
Company’s obligations with respect to Notes concerning issuing temporary Notes,
or, where relevant, registration of such Notes, mutilated, destroyed, lost or
stolen Notes and the maintenance of an office or agency for payment and money
for security payments held in trust;


 


(3)                                  the
rights, powers, trusts, duties and immunities of the Trustee, and the Company’s
obligations in connection therewith set forth in Article VII hereof; and


 


(4)                                  this
Article VIII and the obligations set forth in Section 8.6 hereof.


 


Subject to
compliance with this Article VIII, the Company may exercise its option under Section
8.2 notwithstanding the prior exercise of its option under Section 8.3 with
respect to the Notes.  If the Company
exercises its Legal Defeasance option, payment of the Notes may not be
accelerated because of an Event of Default and each Guarantee or Additional
Guarantee in effect at the time of such Legal Defeasance shall terminate at
such time and be discharged and of no further force and effect.


 


SECTION 8.3.  Covenant Defeasance.  Upon the Company’s exercise under Section
8.1 of the option applicable to this Section 8.3, the Company shall be released
from any obligations under the covenants contained in Sections 4.3, 4.4, 4.5,
4.6, 4.7, 4.8, 4.9, 4.10, 4.11, 4.12, 4.13, 4.14, 4.15, 4.17, 4.18 and 5.1
(other than the provisions of Sections 5.1(a)(1) and (3)) hereof with respect
to the outstanding Notes on and after the date the conditions set forth below
are satisfied (hereinafter, “Covenant
Defeasance”) and the
Notes shall thereafter be deemed not “outstanding” for the purposes of any
direction, waiver, consent or declaration or act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed “outstanding” for all other purposes hereunder (it being
understood that such Notes shall not be deemed outstanding for accounting
purposes).  If the Company exercises its
Covenant Defeasance option, each Guarantee and any Additional Guarantee in
effect at the time of such Covenant Defeasance shall terminate at such time and
be discharged and of no further force and effect.


 


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For the
purposes hereof, such Covenant Defeasance means that, (i) with respect to the
outstanding Notes, the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such covenant or by reason of any reference in any such covenant
to any other provision herein or in any other document and (ii) payment on the
Notes may not be accelerated because of an Event of Default specified in clause
(2) (only insofar as it relates to Section 4.6 or 4.15 hereof), (3) (insofar as
it relates to Sections 4.3, 4.4, 4.5, 4.6, 4.7, 4.8, 4.9, 4.10, 4.11, 4.12,
4.13, 4.14, 4.15, 4.17, 4.18, and 5.1 (other than the provisions of Sections
5.1(a)(1) and (3)), (4), (5), (6) (with respect only to Significant
Subsidiaries of the Company, including any group of Restricted Subsidiaries of
the Company referred to therein), or (7) of Section 6.1 hereof.


 


SECTION 8.4.  Conditions to Legal or Covenant
Defeasance.  The following shall be
the conditions to the application of either Section 8.2 or Section 8.3 to the
outstanding Notes:


 


(1)                                  the
Company must irrevocably deposit in trust (the “defeasance trust”),
for the benefit of the Holders of the Notes, cash in euro in such amounts as
will be sufficient, in the opinion of an internationally recognized firm of
independent public accountants, to pay principal of, premium, if any, and
interest and Additional Amounts, if any, on the Notes to redemption or
maturity, as the case may be, and the Company must specify whether the Notes
are being defeased to maturity or to a particular redemption date;


 


(2)                                  in
the case of Legal Defeasance, the Company shall have delivered to the Trustee
(A) an Opinion of Counsel in the United States reasonably acceptable to the
Trustee confirming that:


 


(x)                                   the
Company has received from, or there has been published by, the Internal Revenue
Service a ruling; or


 


(y)                                 since
the date of the Indenture, there has been a change in the applicable U.S.
federal income tax law,


 


in either case
to the effect that, and based thereon such opinion of counsel shall confirm
that, the Holders will not recognize income, gain or loss for federal income
tax purposes as a result of such Legal Defeasance and will be subject to
federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such Legal Defeasance had not occurred and
(B) an Opinion of Counsel in Ireland reasonably acceptable to the Trustee to
the effect that (x) the Holders of the outstanding Notes will not recognize
income, gain or loss for Irish income tax purposes as a result of such Legal
Defeasance and will be subject to Irish income tax on the same amounts, in the
same manner and at the same times as would have been the case if such Legal
Defeasance had not occurred and (y) payments from the defeasance trust will be
free and exempt from any and all withholding and other income taxes of whatever
nature imposed or levied by or on behalf of Ireland or any political
subdivision thereof or therein having the power to tax;


 


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(3)                                  in
the case of Covenant Defeasance, the Company shall have delivered to the
Trustee (A) an Opinion of Counsel in the United States reasonably acceptable to
the Trustee confirming that the Holders will not recognize income, gain or loss
for federal income tax purposes as a result of such Covenant Defeasance and
will be subject to federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such Covenant Defeasance
had not occurred and (B) an Opinion of Counsel in Ireland reasonably acceptable
to the Trustee to the effect that (x) the Holders of the outstanding Notes will
not recognize income, gain or loss for Irish income tax purposes as a result of
such Covenant Defeasance and will be subject to Irish income tax on the same
amounts, in the same manner and at the same times as would have been the case
if such Covenant Defeasance had not occurred and (y) payments from the
defeasance trust will be free and exempt from any and all withholding and other
income taxes of whatever nature imposed or levied by or on behalf of Ireland or
any political subdivision thereof or therein having the power to tax;


 


(4)                                  no
Default or Event of Default shall have occurred and be continuing on the date
of such deposit (other than a Default or an Event of Default resulting from the
borrowing of funds to be applied to such deposit and the grant of any Lien
securing such borrowings);


 


(5)                                  such
Legal Defeasance or Covenant Defeasance shall not result in a breach or
violation of, or constitute a default under this Indenture (other than a
Default or an Event of Default resulting from the borrowing of funds to be
applied to such deposit and the grant of any Lien securing such borrowings) or
any other material agreement or instrument to which the Company or any of its Subsidiaries
is a party or by which the Company or any of its Subsidiaries is bound;


 


(6)                                  the
Company shall have delivered to the Trustee an Officer’s Certificate stating
that the deposit was not made by the Company with the intent of preferring the
Holders over any other creditors of the Company or with the intent of
defeating, hindering, delaying or defrauding any other creditors of the Company
or others;


 


(7)                                  the
Company shall have delivered to the Trustee an Officer’s Certificate and an
Opinion of Counsel, each stating that all conditions precedent to Legal
Defeasance or the Covenant Defeasance referred to in Sections 8.1, 8.2, 8.3 and
8.4 (as appropriate) have been complied with;


 


(8)                                  the
Company shall have delivered to the Trustee an Opinion of Counsel to the effect
that assuming no intervening bankruptcy of the Company between the date of
deposit and the 91st day following the date of deposit and that no Holder is an
insider of the Company, after the 91st day following the date of deposit, the
trust funds will not be subject to the effect of any applicable bankruptcy,
insolvency, reorganization or similar laws affecting creditors’ rights
generally.


 


Notwithstanding
the foregoing, the opinion of counsel required by clause (2) above with respect
to a Legal Defeasance need not be delivered if all Notes not theretofore
delivered to the


 


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Trustee for cancellation (1)
have become due and payable or (2) will become due and payable on the maturity
date within one year under arrangements reasonably satisfactory to the Trustee
for the giving of notice of redemption by the Trustee in the name, and at the
expense, of the Company.


 


SECTION 8.5.  Satisfaction and Discharge of Indenture.  The Indenture will be discharged and will
cease to be of further effect as to all Notes issued, and the Trustee, at the
expense of the Company, shall execute and deliver an instrument acknowledging
the satisfaction and discharge of the Indenture, when (1) either (A) all the
Notes theretofore authenticated and delivered (except lost, stolen or destroyed
Notes which have been replaced or paid and Notes for whose payment money has
theretofore been deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged from such trust)
have been delivered to the Trustee for cancellation; or (B) all Notes not
theretofore delivered to the Trustee for cancellation (i) have become due and
payable or (ii) will become due and payable within one year, or are to be
called for redemption within one year, under arrangements reasonably
satisfactory to the Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the Company, (2) the Company has
irrevocably deposited or caused to be deposited with the Trustee funds in an
amount sufficient to pay and discharge the entire Indebtedness on the Notes not
theretofore delivered to the Trustee for cancellation, for principal of,
premium, if any, and interest and Additional Amounts, if any, on the Notes to
the date of maturity or redemption, as the case may be, together with
irrevocable instructions from the Company directing the Trustee to apply such
funds to the payment thereof at maturity or redemption, as the case may be; (3)
the Company has paid all other sums payable under this Indenture by the
Company, and (4) the Company has delivered to the Trustee an Officer’s
Certificate and an Opinion of Counsel each to the effect that all conditions
precedent under this Section 8.5 have been complied with.


 


SECTION 8.6.  Application of Trust Moneys.  All cash in euro deposited with the Trustee
pursuant to Section 8.4 or 8.5 in respect of Notes shall be held in trust and
applied by it, in accordance with the provisions of such Notes and this
Indenture, to the payment, either directly or through any Paying Agent as the
Trustee may determine, to the Holders of the Notes of all sums due and to
become due thereon for principal, premium, if any, interest, and Additional
Amounts, if any, but such money need not be segregated from other funds of the
Trustee except to the extent required by law.


 


The Company
shall pay and indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against any funds deposited pursuant to Section 8.4 or
8.5 or the principal and interest received in respect thereof other than any
such tax, fee or other charge which by law is for the account of the Holders of
outstanding Notes.


 


SECTION 8.7.  Repayment to the Company; Unclaimed Money.  The Trustee and any Paying Agent shall
promptly pay or return to the Company upon Company Order any cash held by them
at any time that is not required for the payment of the principal of, premium,
if any, interest, and Additional Amounts, if any, on the Notes for which cash
has been deposited pursuant to Section 8.4 or 8.5.


 


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Any money held
by the Trustee or any Paying Agent for the payment of the principal of,
premium, if any, interest, and Additional Amounts, if any, on any Note and
remaining unclaimed for two years after such principal, premium, if any,
interest, and Additional Amounts, if any, has become due and payable shall be
paid to the Company upon Company Order or if then held by the Company shall be
discharged from any trust to which it is subject; and the Holder of such Note
shall thereafter, as an unsecured general creditor, look only to the Company
for payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, shall thereupon cease.


 


SECTION 8.8.  Reinstatement.  If the Trustee or Paying Agent is unable to
apply any cash in accordance with Sections 8.2, 8.3, 8.4 or 8.5 by reason of
any legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company’s and the Guarantors’ respective obligations under
this Indenture and the Notes shall be revived and reinstated as though no
deposit had occurred pursuant to Sections 8.2, 8.3, 8.4 or 8.5 until such time
as the Trustee or Paying Agent is permitted to apply all such cash in
accordance with Sections 8.2, 8.3, 8.4 or 8.5; provided, however, that if
the Company has made any payment of interest on, premium, if any, principal,
and Additional Amounts, if any, of any Notes because of the reinstatement of
its obligations, the Company shall be subrogated to the rights of the Holders
of such Notes to receive such payment from the money held by the Trustee or
Paying Agent.


 


ARTICLE IX


 


AMENDMENTS,
SUPPLEMENTS AND WAIVERS


 


SECTION 9.1.  Without Consent of Holders of Notes.  Notwithstanding Section 9.2 hereof, the
Company, any Guarantor and the Trustee may amend or supplement this Indenture
or the Notes without the consent of any Holder of a Note or any other Person
to:


 


(1)                                  cure
any ambiguity, omission, defect, error or inconsistency;


 


(2)                                  provide
for the assumption by a successor Person of the obligations of the Company or
any Guarantor under this Indenture;


 


(3)                                  provide
for uncertificated Notes in addition to or in place of certificated Notes (provided
that the uncertificated Notes are issued in registered form for purposes of
Section 163(f) of the Code, or in a manner such that the uncertificated Notes
are described in Section 163(f)(2)(B) of the Code);


 


(4)                                  add
to the covenants of the Company for the benefit of the Holders or surrender any
right or power conferred upon the Company;


 


(5)                                  make
any change under this Indenture, the Notes or the Security Documents that does
not adversely affect the rights of any Holder in any material respect;


 


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(6)                                  make
such provisions as necessary (as determined in good faith by the Company) for
the issuance of exchange securities or Additional Notes;


 


(7)                                  provide
for any Restricted Subsidiary to become an Additional Guarantor in accordance
with the provisions of Section 11.1, to add Guarantees with respect to the
Notes, to secure the Notes, or to confirm and evidence the release, termination
or discharge of any Guarantee or Lien with respect to or securing the Notes
when such release, termination or discharge is provided for under this
Indenture; or


 


(8)                                  to
provide that any Indebtedness that becomes or will become an obligation of a
Successor Company or a Guarantor pursuant to a transaction governed by Section
5.1 (that is not a Subordinated Obligation) is Senior Subordinated Indebtedness
or Guarantor Senior Subordinated Indebtedness for the purposes of the Mezzanine
Indenture.


 


However, no
amendment may be made to the provisions of Article XI or Section 11.5(a)(1) or
11.5(b)(2) of this Indenture that materially and adversely affects the rights
of any Holder in any material respect unless the requisite Holders consent to
such change.


 


Upon the
request of the Company, accompanied by a Board Resolution authorizing the
execution of any such amended or supplemental indenture, subject to Section
9.5, the Trustee shall join with the Company and any Guarantor in the execution
of any amended or supplemental indenture authorized or permitted by the terms
of this Indenture and to make any further appropriate agreements and
stipulations which may be therein contained, but the Trustee shall not be
obligated to enter into such amended or supplemental indenture which adversely
affects its own rights, duties or immunities hereunder or otherwise.


 


The Company
will inform the Luxembourg Stock Exchange if the Notes are listed on such
exchange and the rules of such exchange so require, of any of the foregoing
amendments, supplements and waivers and provide, if the Notes are listed on
such exchange and the rules of such exchanges so require, a supplement to the
Offering Memorandum setting forth reasonable details in connection with any
such amendments, supplements or waivers.


 


SECTION 9.2.  With Consent of Holders of Notes.  The Company, any Guarantor and the Trustee
may amend or supplement this Indenture, the Notes, any Security Document or any
amended or supplemental indenture with the written consent of the Holders of at
least a majority in principal amount of the Notes then outstanding (including
consents obtained in connection with a purchase of, or tender offer or exchange
offer for, the Notes), and, subject to Sections 6.7 and 6.10, any existing
Default or Event of Default and its consequences or compliance with any
provision of this Indenture or the Notes may be waived with the consent of the
Holders of at least a majority in principal amount of the Notes then
outstanding (including, without limitation, consents obtained in connection
with a purchase of, or tender offer or exchange offer for, the Notes).


 


However,
without the consent of 90% of the Holders of outstanding Notes affected, no
amendment or waiver may:


 


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(1)                                  reduce
the amount of Notes whose Holders must consent to an amendment;


 


(2)                                  reduce
the rate of or change or have the effect of changing the time for payment of
interest on any Note, including defaulted interest;


 


(3)                                  reduce
the principal of or change or have the effect of changing the Stated Maturity
of any Note or change the date on which any Notes may be subject to redemption
or reduce the redemption price therefor;


 


(4)                                  make
any Note payable in money other than that stated in the Note;


 


(5)                                  make
any change in provisions of this Indenture protecting the right of each Holder
to receive payment of principal of and interest on such Note on or after the
due date thereof or to bring suit to enforce such payment, or permitting
Holders of a majority in principal amount of Notes to waive Defaults or Events
of Default;


 


(6)                                  after
the Company’s obligation to purchase Notes arises thereunder, amend, change or
modify in any material respect the obligation of the Company to make and
consummate a Change of Control Offer in the event of a Change of Control or
make and consummate a Net Proceeds Offer with respect to any Asset Sale that
has been consummated or, after such Change of Control has occurred or such
Asset Sale has been consummated, modify any of the provisions or definitions
with respect thereto;


 


(7)                                  modify
or change any provision of this Indenture or the related definitions affecting
the subordination or ranking of the Notes or any Guarantee in a manner which
adversely affects the Holders; or


 


(8)                                  release
any Guarantor that is a Significant Subsidiary from any of its obligations
under its Guarantee or the Indenture otherwise than in accordance with the
terms of the Indenture.


 


Upon the
request of the Company, accompanied by a Board Resolution authorizing the
execution of any such amended or supplemental indenture, and upon the filing
with the Trustee of evidence reasonably satisfactory to the Trustee of the
consent of the Holders of Notes as aforesaid, the Trustee shall join with the
Company and any Guarantor in the execution of such amended or supplemental
indenture (subject to Section 9.5).  It
shall not be necessary for the consent of the Holders of Notes under this
Section 9.2 to approve the particular form of any proposed amendment or
waiver, but it shall be sufficient if such consent approves the substance
thereof.  A consent to any amendment or
waiver under this Indenture by any Holder of Notes given in connection with a
tender of such Holder’s Notes will not be rendered invalid by such tender.  After an amendment, supplement or waiver
under this Section becomes effective, the Company shall mail to the Holders of
Notes a notice briefly describing the amendment, supplement or waiver.  In addition, for so long as the Notes are
listed on the Luxembourg Stock Exchange and the rules of such stock exchange so
require, the Company will publish notice of any amendment, supplement and
waiver in Luxembourg in a daily newspaper with general circulation


 


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in Luxembourg (which is
expected to be the Luxemburger Wort).  Any failure of the Company to mail or give
or publish such notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such amended or supplemental indenture or
waiver.


 


SECTION 9.3.  Revocation and Effect of Consents.  vii) Until an amendment, supplement or
waiver becomes effective, a consent to it by a Holder of a Note is a continuing
consent by the Holder of a Note and every subsequent Holder of a Note or
portion of a Note that evidences the same debt as the consenting Holder’s Note,
even if notation of the consent is not made on any Note.  However, any such Holder of a Note or
subsequent Holder of a Note may revoke the consent as to its Note if the
Trustee receives written notice of revocation before the date on which the
Trustee receives an Officer’s Certificate certifying that the Holders of the
requisite principal amount of Notes have consented to the waiver, supplement or
amendment.  An amendment, supplement or
waiver becomes effective in accordance with its terms and thereafter binds
every Holder of a Note.


 


(a)                                  The
Company may fix a record date for determining which Holders of the Notes must
consent to such amendment, supplement or waiver.  If the Company fixes a record date, the record date shall be
fixed at (i) the later of 30 days prior to the first solicitation of such
consent or the date of the most recent list of Holders of Notes furnished to
the Trustee prior to such solicitation pursuant to Section 2.5 or (ii) such
other date as the Company shall designate.


 


SECTION 9.4.  Notation on or Exchange of Notes.  The Trustee may (and shall if directed by a
Company Order) place an appropriate notation about an amendment, supplement or
waiver on any Note thereafter authenticated. 
The Company in exchange for all Notes may issue and the Trustee shall
authenticate new Notes that reflect the amendment, supplement or waiver.  Failure to make the appropriate notation or
issue a new Note shall not affect the validity and effect of such amendment,
supplement or waiver.


 


SECTION 9.5.  Trustee to Sign Amendments, etc.  The Trustee shall execute any amendment,
supplement or waiver authorized pursuant to this Article IX; provided,
however, that the Trustee may, but shall not be obligated to, execute any such
amendment, supplement or waiver which adversely affects the Trustee’s own
rights, duties or immunities under this Indenture.  The Trustee shall be entitled to receive indemnity reasonably satisfactory
to it, and shall be fully protected in relying upon, an Opinion of Counsel and
an Officer’s Certificate each stating that the execution of any amendment,
supplement or waiver authorized pursuant to this Article IX is authorized
or permitted by this Indenture and constitutes the legal, valid and binding
obligations of the Company enforceable in accordance with its terms.


 


ARTICLE X


 


SUBORDINATION
OF THE NOTES


 


SECTION 10.1.  Agreement To Subordinate.  The Company agrees, and the Trustee and each
Holder by accepting or acquiring or becoming entitled to claim under or
pursuant to a Note agrees, that the Indebtedness evidenced by, and all other
obligations in respect of, the Notes, is subordinated in right of payment, to
the extent and in the manner provided in this Article X, to


 


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the prior irrevocable payment
in full in cash of all Senior Debt of the Company and that the subordination is
for the benefit of and enforceable by the holders of such Senior Debt.  The Notes shall in all respects rank at
least pari passu with all other
Subordinated Indebtedness of the Company and only Indebtedness of the Company
that is Senior Debt will rank senior to the Notes in accordance with the
provisions set forth herein.  All
provisions of this Article X shall be subject to Section 10.11.


 


SECTION 10.2.  Standstill.  Prior to the repayment of all obligations in respect of
Designated Senior Debt, the obligations under the Notes are not due (and no
demand may be made on the Company) until:


 


(a)                                  (i)
an order is made for the winding-up, dissolution, examination, or
administration of the Company; or (ii) a liquidator, trustee in bankruptcy,
judicial custodian, compulsory manager, receiver, administrative receiver,
examiner, administrator or similar officer is appointed to the Company;


 


(b)                                 each
of the following shall have occurred:


 


(i)                                     a default in
payment of any amounts due under the Indenture or the Notes (but only if, in
the case of any amounts not constituting principal or interest, such amounts
exceed €500,000) has occurred;


 


(ii)                                  a Holder of Notes or
the Trustee has notified the Designated Senior Agents in writing of such
default;


 


(iii)                               a period of not less
than 179 days has passed from the date of receipt by the Designated Senior
Agents of such notice (a “Standstill Period”); and


 


(iv)                              at the end of such
Standstill Period, the default is continuing and has not been waived;


 


(c)                                  any
Indebtedness outstanding under any Designated Senior Debt has been declared to
be prematurely due and payable or payable on demand (and demand has been made)
by reason of an event of default, as defined in such Designated Senior Debt; or


 


(d)                                 enforcement
action has been taken by or on behalf of the lenders under the security
documents granted pursuant to, or securing Indebtedness outstanding under, any
Designated Senior Debt pursuant to which any assets of the Company or any
Restricted Subsidiary thereof are disposed of or sold.


 


Until the obligations of the Company under this Indenture and the Notes
are due pursuant to the occurrence of the events described above, the Trustee
and the Holders may not make a demand under or bring any enforcement action on
the Notes, including but not limited to the commencement or support of
insolvency proceedings with respect to the Company, until such time.  Thereafter, the Trustee and the Holders may
only demand payment of and accelerate the Notes and exercise any other remedies
that do not involve enforcement of security; they may


 


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not direct the Security Agent
to enforce any security in these circumstances.  No non-payment Blockage Period may be instituted which would
extend beyond the Standstill Period referred to in Section 10.2.


 


SECTION 10.3.  Liquidation, Dissolution, Bankruptcy.


 


Upon any payment or distribution (including by exercise of any right of
receipt, set-off, combination of accounts or other discharge) to creditors of
the Company, in a liquidation, dissolution, winding-up, bankruptcy,
administration, reorganization, examination, receivership, administrative
receivership or similar proceeding relating to the Company or its property, or
in an assignment for the benefit of creditors of the Company or in any
marshalling of the Company’s assets:


 


(1)                                  holders of all Senior
Debt of the Company, including without limitation lenders under the Credit
Agreement and holders of the Private Placement Notes, will be entitled to
receive irrevocable payment in full in cash of all obligations due (and that
become due thereafter) in respect of all such Senior Debt (including interest
accruing after the commencement of any proceeding at the rate specified in such
Senior Debt whether or not allowed or allowable in any such proceeding) before
the Trustee or Holders of Notes will be entitled to receive any payment with
respect to the Notes (except that Holders may receive and retain payments made
from any defeasance trust referred to in Article VIII if such trust was
established prior to the proceedings described above and after the termination
of the Intercreditor Agreement and not in breach of the Credit Agreement and
the Private Placement Notes or the terms of any other Senior Debt of the
Company); and


 


(2)                                  until all Senior Debt
of the Company has been irrevocably paid in full in cash, any payment or
distribution to which the Trustee or Holders of Notes would be entitled but for
the subordination provisions of this Article X shall be made first to the
lenders under the Credit Agreement and to holders of the Private Placement
Notes (in accordance with the terms of the Intercreditor Agreement) if any
Indebtedness is then outstanding thereunder and then to holders of such other
Senior Debt of the Company as their respective interests may appear.


 


SECTION 10.4.  Turnover.  In the event that the Trustee or any Holder of Notes receives or
recovers any payment or distribution on or with respect to the Notes (other
than payments made from any defeasance trust referred to in Article VIII
if such trust was established prior to the proceedings described in Section 10.3(1)
and not in breach of the Credit Agreement, the Private Placement Notes, the
Intercreditor Agreement or the terms of any other Senior Debt of the Company)
at a time when the Trustee or such Holder had actual knowledge that such
payment is prohibited by the provisions of this Article X, such payment
will be held by the Trustee or such Holder, in trust for the benefit of, and
will be paid forthwith over and delivered, upon written request, first to the
lenders under the Credit Agreement and to holders of the Private Placement
Notes (in accordance with the terms of the Intercreditor Agreement) if any
Indebtedness is then outstanding thereunder and second to the holders of other
Senior Debt of the Company as their interests may appear for application to the
payment of all obligations with respect to such Indebtedness 


 


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remaining unpaid to the extent
necessary to pay such obligations in full in cash in accordance with their
terms, after giving effect to any concurrent payment or distribution to or for
such lenders or other holders.  In the
event that any such payment is received by the Trustee or such a Holder, the
Trustee or such Holder shall, if it has actual knowledge that such payment was
received at a time when it was so prohibited, give notice to the agent for the
lenders under the Credit Agreement (if any Indebtedness is then outstanding
under the Credit Agreement) and the holders of Private Placement Notes (if any
Indebtedness is then outstanding thereunder) and to all other Designated Senior
Agents.


 


SECTION 10.5.  Payment Blockage.  (a) The Company shall not make any payment
in respect of the Notes (except from a defeasance trust referred to in
Article VIII) if: (1) a payment default on Designated Senior Debt occurs
and is continuing; or (2) any other default occurs and is continuing on any
series of Designated Senior Debt that permits (or, with the giving of notice or
the passage of time or the satisfaction of other applicable conditions, or any
combination of any of the foregoing, would permit) holders of that series of
Designated Senior Debt to accelerate its maturity and the Trustee receives a
notice of such default (a “Payment Blockage Notice”) from the
Company or any of the Designated Senior Agents.


 


(b)                                 Payments
on the Notes may and shall be resumed: (1) in the case of a payment default
described in Section 10.5(a)(1), upon the date on which such default is
cured or waived; and (2) in the case of a nonpayment default described in
Section 10.5(a)(2), upon the earlier of the date on which such non-payment
default is cured or waived or 179 days after the date on which the applicable
Payment Blockage Notice is received by the Trustee (a “Blockage Period”), unless the maturity of
the Designated Senior Debt has been accelerated or clause (1) of
Section 10.5(a) otherwise applies.


 


(c)                                  Once
a Payment Blockage Notice has been issued, no additional Payment Blockage
Notice may be delivered unless and until 360 days have elapsed since the
delivery of the immediately preceding Payment Blockage Notice.


 


(d)                                 No
non-payment default in respect of the Notes that existed or was continuing on
the date of delivery of any Payment Blockage Notice to the Trustee will be, or
may be made, the basis for a subsequent Payment Blockage Notice unless such
default has been cured or waived for a period of not less than 180 days.


 


SECTION 10.6.  Subrogation.  After all Senior Debt of the Company is paid
in full and until the Notes are paid in full, Holders of Notes shall be subrogated
to the rights of holders of Senior Debt of the Company to receive distributions
applicable to such Senior Debt.  A
distribution made under this Article X to holders of Senior Debt which
otherwise would have been made to Holders of Notes is not, as between the
Company and the Holders, a payment by the Company of Senior Debt.


 


SECTION 10.7.  Acceleration of Payment of Securities.  If payment of the Notes is accelerated
because of an Event of Default, the Company and the Trustee shall promptly
notify the Designated Senior Agents of the acceleration; provided, however, that the Company and
the Trustee shall be obligated to notify such Designated Senior Agents only if
such Designated Senior


 


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 Agents have delivered or caused to be delivered to the Company and
the Trustee, as the case may be, an address for service of such a notice (and
the Company and the Trustee shall only be obligated to deliver the notice to
the address so specified).


 


SECTION 10.8.  Relative Rights.  This Article X defines the relative
rights of Holders of Notes and holders of Senior Debt of the Company.  Nothing in this Indenture (save as set out
in Section 10.4 hereof) shall:


 


(1)                                  impair, as between
the Company and Holders of Notes, the obligation of the Company which is
absolute and unconditional, subject to the terms hereof, to pay the principal
of, premium, if any, interest, and Additional Amounts, if any, on the Notes in
accordance with their terms; or


 


(2)                                  prevent the Trustee
or any Holder from exercising its available remedies upon a Default or Event of
Default against the Company in respect of the Notes.


 


SECTION 10.9.  Subordination May Not Be Impaired by
the Company.  No right of any holder
of Senior Debt of the Company to enforce the subordination of the Indebtedness
evidenced by the Notes shall be impaired by any act or failure to act by the
Company or by the failure of the Company to comply with this Indenture.


 


SECTION 10.10.  Rights of Trustee and Paying Agent.  The Trustee or Paying Agent may continue to
make payments on the Notes and shall not be charged with knowledge of the
existence of facts that would prohibit the making of any such payments unless,
not less than two Business Days prior to the date of such payment, a
Responsible Officer of the Trustee receives notice in writing satisfactory to
it that payments may not be made under this Article X.  The Company, the Registrar or co-registrar,
the Paying Agent or a Designated Senior Agent may give the notice.


 


The Trustee in its individual or any other capacity may hold Senior
Debt of the Company with the same rights it would have if it were not
Trustee.  The Registrar and co-registrar
and the Paying Agent may do the same with like rights.  The Trustee shall be entitled to all the
rights set forth in this Article X with respect to any Senior Debt of the
Company which may at any time be held by it, to the same extent as any other
holder of such Senior Debt; and nothing in Article VII shall deprive the
Trustee of any of its rights as such holder. 
Nothing in this Article X shall apply to claims of, or payments to,
the Trustee under or pursuant to Section 7.6.


 


SECTION 10.11.  Article X Not To Prevent Events of
Default or Limit Right To Accelerate. 
The failure to make a payment in respect of the Notes by reason of any
provision in this Article X shall not be construed as preventing the
occurrence of a Default or Event of Default. 
Notwithstanding the provisions of Section 10.2, nothing in this
Article X shall have any effect on the right of the Holders of Notes or
the Trustee to accelerate the maturity of the Notes provided that the
provisions of Section 10.2 are complied with.


 


SECTION 10.12.  Trust Moneys Not Subordinated.  Notwithstanding anything contained herein to
the contrary, payments from money held in trust under Article VIII by the
Trustee for


 


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the payment of principal of,
premium, if any, and interest and Additional Amounts, if any, on the Notes
shall not be subordinated to the prior payment of any Senior Debt of the
Company or subject to the restrictions set forth in this Article X, and none of
the Holders shall be obligated to pay over any such amount to any holder of
Senior Debt of the Company or any other creditor of the Company; provided that such trust was established
after the termination of the Intercreditor Agreement and was not established in
breach of the Credit Agreement or the Private Placement Notes.


 


SECTION 10.13.  Trustee Entitled To Rely.  Upon any payment or distribution pursuant to
this Article X, the Trustee and the Holders shall be entitled to rely (i)
upon any order or decree of a court of competent jurisdiction in which any
proceedings of the nature referred to in Section 10.3 are pending, (ii)
upon a certificate of the liquidating trustee or agent or other Person making
such payment or distribution to the Trustee or to the Holders or (iii) upon the
Designated Senior Agents, for the purpose of ascertaining the Persons entitled
to participate in such payment or distribution, the holders of other
Indebtedness of the Company, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto,
to this Article X.  In the event
that the Trustee determines, in good faith, that evidence is required with
respect to the right of any Person as a holder of Senior Debt of the Company to
participate in any payment or distribution pursuant to this Article X, the
Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Debt of the Company held
by such Person, the extent to which such Person is entitled to participate in
such payment or distribution and other facts pertinent to the rights of such
Person under this Article X, and, if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment.  The provisions of Sections 7.1 and 7.2 shall be applicable to all
actions or omissions of actions by the Trustee pursuant to this Article X.


 


SECTION 10.14.  Trustee To Effectuate Subordination.  Each Holder by accepting a Note authorizes
and directs the Trustee on its behalf to take such action as may be necessary
or appropriate to acknowledge or effectuate the subordination between the
Holder and the holders of Senior Debt of the Company as provided in this
Article X.


 


SECTION 10.15.  Trustee Not Fiduciary for Holders of
Senior Debt.  The Trustee shall not
be deemed to owe any fiduciary duty to the holders of Senior Debt of the
Company and shall not be liable to any such holders if, acting in good faith,
it shall mistakenly pay over or distribute to the Company or any other Person,
money or assets to which any holders of Senior Debt of the Company shall be
entitled by virtue of this Article X or otherwise.


 


SECTION 10.16.  Reliance by Holders of Senior Debt on
Subordination Provisions.  Each
Holder by accepting a Note acknowledges and agrees that the provisions of this
Article X are, and are intended to be, an inducement and a consideration
to each holder of any Senior Debt of the Company, whether such Senior Debt was
created or acquired before or after the issuance of the Notes, to acquire and
continue to hold, or to continue to hold, such Senior Debt and such holder of
Senior Debt shall be deemed conclusively to have relied on such provisions in
acquiring and continuing to hold, or in continuing to hold, such Senior Debt.


 


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ARTICLE XI


 


GUARANTEES


 


SECTION 11.1.   Additional Guarantors.  The Company may from time to time designate
a Restricted Subsidiary as an additional guarantor of the Notes by causing it
to enter into a supplemental indenture substantially in the form annexed hereto
as Exhibit E or otherwise in form and substance reasonably satisfactory
to the Trustee (each such guarantee, an “Additional
Guarantee,” and each such guarantor, an “Additional Guarantor”).


 


SECTION 11.2.   Guarantees.  Subject to this Article XI,
Article XII and Section 14.18, each of the Guarantors and each
Additional Guarantor hereby fully, unconditionally and irrevocably guarantees,
commencing upon issuance of the Notes as primary obligor and not merely as
surety, to each Holder of the Notes and the Trustee the full and punctual
payment when due, whether at maturity, by acceleration, by redemption or
otherwise, of the principal of, premium, if any, interest, and Additional
Amounts, if any, on the Notes and all other payment obligations of the Company
under this Indenture (all of the foregoing being hereinafter collectively
called the “Senior Subordinated Obligations”).  Each of the Guarantors and each Additional
Guarantor further agrees (to the extent permitted by law) that the Senior
Subordinated Obligations may be extended or renewed, in whole or in part,
without notice or further assent from it, and that it will remain bound under
this Article XI notwithstanding any extension or renewal of any Senior
Subordinated Obligation.


 


Each of the Guarantors and any Additional Guarantor waives (to the
extent permitted by law) presentation to, demand of payment from and protest to
the Company of any of the Senior Subordinated Obligations and also waives (to
the extent permitted by law) notice of protest for nonpayment.  Each of the Guarantors and any Additional
Guarantor waives (to the extent permitted by law) notice of any default under
the Notes or the Senior Subordinated Obligations.  The obligations of each of the Guarantors and any Additional
Guarantor hereunder shall not (to the extent permitted by law) be affected by
(a) the failure of any Holder to assert any claim or demand or to enforce any
right or remedy against the Company or any other person under this Indenture, the
Notes or any other agreement or otherwise; (b) any extension or renewal of any
thereof; (c) any rescission, waiver, amendment or modification of any of the
terms or provisions of this Indenture, the Notes or any other agreement; (d)
the release of any security held by any Holder or the Trustee for the Senior
Subordinated Obligations or any of them; or (e) any change in the ownership of
the Company.


 


Each of the Guarantors and any Additional Guarantor further agrees that
each Guarantee herein constitutes a guarantee of payment when due (and not a
guarantee of collection) and waives (to the extent permitted by law) any right
to require that any resort be had by any Holder to any security held for
payment of the Senior Subordinated Obligations.


 


The obligations of each of the Guarantors and any Additional Guarantor
hereunder (to the extent permitted by law) shall, subject to this
Article XI, Article XII and Section 14.18, not be subject to any
reduction, limitation, impairment or termination for any reason (other than
payment of the Senior Subordinated Obligations in full), including any claim of
waiver, release, surrender,


 


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 alteration or compromise, and shall not be subject to any defense
of setoff, counterclaim, recoupment or termination whatsoever or by reason of
the invalidity, illegality or unenforceability of the Senior Subordinated
Obligations or otherwise.  Without
limiting the generality of the foregoing, the obligations of each of the
Guarantors and any Additional Guarantor herein (to the extent permitted by law)
shall, subject to this Article XI, Article XII and
Section 14.18, not be discharged or impaired or otherwise affected by the
failure of any Holder to assert any claim or demand or to enforce any remedy
under this Indenture, the Notes or any other agreement, by any waiver or
modification of any thereof, by any default, failure or delay, willful or
otherwise, in the performance of the Senior Subordinated Obligations, or by any
other act or thing or omission or delay to do any other act or thing which
would otherwise operate as a discharge of any of the Guarantors or any
Additional Guarantor as a matter of law or equity.


 


Subject to Section 11.5, each of the Guarantors and any Additional
Guarantor further agrees that each Guarantee herein shall continue to be
effective or be reinstated, as the case may be, if at any time payment, or any
part thereof, of principal of, premium, if any, or interest, or Additional
Amounts, if any, on any of the Senior Subordinated Obligations is rescinded or
must otherwise be restored by any Holder upon the bankruptcy or reorganization
of the Company or otherwise.


 


Subject to the provisions of Section 11.3 hereof, in furtherance
of the foregoing and not in limitation of any other right which any Holder has
at law or in equity against any of the Guarantors and any Additional Guarantor
by virtue hereof, upon the failure of the Company to pay any of the Senior
Subordinated Obligations when and as the same shall become due, whether at
maturity, by acceleration, by redemption or otherwise, each of the Guarantors
and any Additional Guarantor hereby promises to and will, upon receipt of
written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to
the Trustee for and on behalf of itself and the Holders an amount equal to the
unpaid amount of such Senior Subordinated Obligations then due and owing.  Payments made under this guarantee shall be
made to the Trustee on behalf of the Holders.


 


The Company further agrees (to the extent permitted by law) that, as
between it, on the one hand, and the Holders, on the other hand, but subject
always to Section 12.2 hereof, (x) the maturity of the Senior Subordinated
Obligations guaranteed hereby may be accelerated as provided in this Indenture
for the purposes of the Guarantees herein, notwithstanding any stay, injunction
or other prohibition preventing such acceleration in respect of the Senior
Subordinated Obligations guaranteed hereby and (y) in the event of any such declaration
of acceleration of such Senior Subordinated Obligations, such Senior
Subordinated Obligations (whether or not then due and payable) shall forthwith
become due and payable by each of the Guarantors and any Additional Guarantor
for the purposes of this Senior Subordinated Guarantee.


 


The Guarantors and any Additional Guarantor also agree to pay any and
all reasonable costs and expenses (including reasonable attorneys’ fees)
incurred by the Trustee or the Holders in enforcing any rights under this Section.


 


SECTION 11.3.   Limitation on Liability.  The obligations of each Guarantor and any
Additional Guarantor hereunder will be limited in accordance with the
following:


 


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(a)                                  The
Guarantee of each Guarantor or Additional Guarantor whose jurisdiction of
formation is Ireland, Japan, the United Kingdom or the United States (or any
state thereof or the District of Columbia) will be limited to the maximum
amount that can be guaranteed under applicable laws, including without
limitation fraudulent conveyance or fraudulent transfer restrictions under
applicable insolvency laws.


 


(b)                                 The
Trustee agrees not to enforce the Guarantee created hereunder by a Guarantor
incorporated in Germany as (i) a limited liability company (GmbH) (a “German
GmbH Guarantor”), or (ii) as a limited partnership (Kommanditgesellschaft) with a limited
liability company as sole general partner (the “German Single GmbH & Co. KG
Guarantor”), or (iii) as a limited partnership with another limited
partnership as sole general partner whose sole general partner is a limited
liability company (the “German Double GmbH
& Co. KG Guarantor”, together with any German GmbH Guarantor or
any German Single GmbH & Co. KG Guarantor hereinafter referred to as a “German Guarantor”) if and to the extent
that the Guarantees secure liabilities of an affiliated company (verbundenes Unternehmen) within the
meaning of Section 15 et seq. of the German Stock Corporation Act (Aktiengesetz) of that German Guarantor
(other than the German Guarantor’s Subsidiaries) and if and to the extent that
such enforcement would lead to the situation in which such German Guarantor’s
or, in the case of a German Single GmbH & Co. KG Guarantor, its general
partner’s, assets, or, in the case of a German Double GmbH & Co. KG
Guarantor, the assets of its general partner’s general partner (the calculation
of which shall take into account the captions reflected in Section 266
subsection (2) A, B and C of the German Commercial Code (HGB Handelsgesetzbuch)) less the sum of
(A) the liabilities of the German Guarantor or, in the case of a German Single
GmbH & Co. KG Guarantor, its general partner, or, in the case of a German
Single GmbH & Co. KG Guarantor, its general partner’s general partner (the
calculation of which shall take into account the captions reflected in
Section 266 sub-section (3) B, C and D of the German Commercial
Code), and (B) the stated share capital (Stammkapital)
of the German Guarantor or, in the case of a German Single GmbH & Co. KG
Guarantor, its general partner, or, in the case of a German Double GmbH &
Co. KG Guarantor, its general partner’s general partner, (the “Net Assets”)) are less than zero.


 


(1)                                  For the avoidance of
doubt, none of the above restrictions shall apply if the enforcement relates to
any outstanding amounts owed directly by the Guarantor under this Agreement.


 


(2)                                  For the purposes of
the calculation of the Net Assets the following balance sheet items shall be
adjusted as follows:


 


(i)                                     the amount of any
increase of the stated share capital after the date hereof (excluding any such
increase of stated share capital permitted pursuant to any other agreement to
which the Trustee and the relevant German Guarantor are a party) (aa) that has
been effected without the prior written consent of the Trustee, (bb) that has
been effected out of retained earnings (Kapitalerhöhung
aus Gesellschaftsmitteln) or (cc) to the extent that it is not fully
paid up, shall be deducted from the stated share capital; and


 


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(ii)                                  loans and other
contractual liabilities incurred in gross negligent or wilful violation of the
provisions of this Indenture shall be disregarded.


 


(3)                                  In addition, each
German Guarantor and, in the case of (i) a German Single GmbH & Co. KG
Guarantor, also its general partner, or (ii) a German Double GmbH & Co. KG
Guarantor, also its general partner and its general partner’s general partner,
shall realize, to the extent legally permitted and, in respect of the relevant
German Guarantor’s and, in the case of (i) a German Single GmbH & Co. KG
Guarantor, also its general partner’s or (ii) a German Double GmbH & Co. KG
Guarantor, also its general partner and that general partner’s general
partner’s business, commercially justifiable, in a situation where such German
Guarantor’s or, in the case of (i) a German Single GmbH & Co. KG Guarantor,
its general partner’s, or (ii) a German Double GmbH & Co. KG Guarantor, its
general partner’s general partner’s Net Assets are less than zero any and all
of its assets that are shown in the balance sheet with a book value (Buchwert) that is significantly lower than
the market value of the assets if the asset is not necessary for such German
Guarantor’s and, in the case of (i) a German Single GmbH & Co. KG
Guarantor, its general partner’s, or (ii) a German Single GmbH & Co. KG
Guarantor, also its general partner’s and that general partner’s general
partner’s business (betriebsnotwendig).


 


(4)                                  For the purpose of
the calculation of the Net Assets and thus the enforceable amount, the relevant
German Guarantor will deliver within 30 days after the occurrence of an Event
of Default, to the Trustee an up to date balance sheet drawn-up by a firm of
auditors of international standard and repute together with a determination of
the Net Assets.  Such balance sheet and
determination of Net Assets shall be prepared in accordance with accounting
principles pursuant to the German Commercial Code and be based on the same
principles that were applied when establishing the previous year’s balance
sheet.


 


The
determination by the auditors (as set forth above, the “Auditors’ Determination”) pertaining to
the relevant German Guarantor or, in the case of a German Single GmbH Co. KG
Guarantor, its general partner, or, in the case of a German Double GmbH &
Co. KG Guarantor, its general partner’s general partner, shall be up to date
and in any event such Auditors’ Determination shall have been prepared as of a
date no earlier than 15 Business Days prior to the date of the enforcement of
the Guarantees.


 


(5)                                  Should the relevant
German Guarantor fail to deliver such balance sheet and/or determination of the
Net Assets, the Trustee (acting through the Security Trustee) shall be entitled
to enforce the Guarantees, without limitation, but agrees to release proceeds
from such enforcement to the extent required to ensure that the Net Assets
shall not be less than zero.


 


SECTION 11.4.   No Subrogation.  Notwithstanding any payment or payments made
by a Guarantor hereunder, no Guarantor or Additional Guarantor shall be
entitled to be subrogated to any of the rights of the Trustee or any Holder
against the Company or any collateral security or guarantee or right of offset
held by the Trustee or any Holder for the payment of the Senior Subordinated
Obligations nor shall any of such Guarantors or Additional Guarantors seek or
be entitled 


 


94

















 


to seek any contribution or
reimbursement from the Company in respect of payments made by such Guarantor or
Additional Guarantor hereunder, until all amounts owing to the Trustee and the
Holders by the Company on account of the Senior Subordinated Obligations are
paid in full.  If any amount shall be
paid to such Guarantor or Additional Guarantor on account of such subrogation
rights at any time when all of the Senior Subordinated Obligations shall not
have been paid in full, such amount shall be held by such Guarantor or
Additional Guarantor in trust for the Trustee and the Holders, segregated from
other funds of such Guarantor and shall, forthwith upon receipt by such
Guarantor or such Additional Guarantor be turned over to the Trustee in the
exact form received by such Guarantor (duly indorsed by such Guarantor to the
Trustee, if required), to be applied against the Senior Subordinated
Obligations.


 


SECTION 11.5.   Release.


 


(a)                                  Each
Guarantee will be automatically and unconditionally released (and thereupon
shall terminate and be discharged and be of no further force and effect) in
connection with the sale or disposition (including through merger or
consolidation) of the Capital Stock, of all or substantially all of the assets,
of the relevant Guarantor (as applicable), if:


 


(1)                                  such
sale is made in compliance with this Indenture (including Section 4.6 hereof);
or


 


(2)                                  such
sale is made pursuant to an enforcement of security over such Capital Stock or
assets, or upon request of the security agent under the Intercreditor Agreement
following an event of default, which is continuing, under Indebtedness to First
Priority Parties.


 


(b)                                 In
addition, each Guarantee shall also be automatically released (1) upon Legal
Defeasance or Covenant Defeasance or discharged as described in Section 8.5,
(2) upon the designation by the Company of the Guarantor as an Unrestricted
Subsidiary in compliance with the terms of this Indenture or (3) upon payment
in full of the aggregate principal amount of all Notes then outstanding and all
other financial obligations under such Guarantee then due and owing.


 


(c)                                  Upon
any occurrence giving rise to a release of a Guarantee as specified above, and
following receipt by the Trustee of an Opinion of Counsel that all conditions
precedent to the release have been satisfied (as to which such counsel may rely
upon an Officer’s Certificate as to matters of fact), the Trustee shall execute
any documents reasonably required in order to evidence or effect such release,
discharge and termination in respect of such Guarantee.  No Guarantor shall be required to make a
notation on the Notes to reflect any Guarantee or any release, termination or
discharge of a Guarantee.


 


ARTICLE
XII


 


SUBORDINATION
OF GUARANTEES


 


SECTION 12.1.   Agreement To Subordinate.  Each of the Guarantors and any Additional
Guarantor agrees, and the Trustee and each Holder by accepting or acquiring or
becoming entitled 


 


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to claim under or pursuant to a
Note agrees, that the Indebtedness evidenced by, and all other obligations in
respect of, each Guarantee is subordinated in right of payment, to the extent
and in the manner provided in this Article XII, to the prior irrevocable
payment in full in cash of all Senior Debt of such Guarantor or Additional
Guarantor and that the subordination is for the benefit of and enforceable by
the holders of such Senior Debt of such Guarantor or Additional Guarantor.  Each Guarantee shall in all respects rank at
least pari passu with all other
Subordinated Debt of such Guarantor or Additional Guarantor and only
Indebtedness of a Guarantor or Additional Guarantor that is Senior Debt of such
Guarantor or Additional Guarantor will rank senior to the applicable Guarantee
in accordance with the provisions set forth herein.  All provisions of this Article XII shall be subject to Section
12.10.


 


SECTION 12.2.   Standstill.


 


Prior to the
repayment of all obligations in respect of Designated Senior Debt, the
obligations of each Guarantor or Additional Guarantor under its Guarantee are
not due (and no demand may be made on any Guarantor or Additional Guarantor)
until:


 


(a)                                  (i)
an order is made for the winding-up, dissolution, examination, or
administration of such Guarantor or Additional Guarantor; or (ii) a liquidator,
trustee in bankruptcy, judicial custodian, compulsory manager, receiver,
administrative receiver, examiner, administrator or similar officer is
appointed to the relevant Guarantor or Additional Guarantor;


 


(b)                                 each
of the following shall have occurred:


 


(i)                                     a
default in payment of any amounts due under this Indenture or the Notes (but
only if, in the case of any amount not constituting principal or interest, such
amounts exceed €500,000) has occurred;


 


(ii)                                  a
Holder of Notes or the Trustee has notified the Designated Senior Agents in
writing of such default;


 


(iii)                               a
period of not less than 179 days has passed from the date of receipt by the
Designated Senior Agents of such notice (a “Standstill
Period”); and


 


(iv)                              at
the end of such Standstill Period, the default is continuing and has not been
waived;


 


(c)                                  any
Indebtedness outstanding under any Designated Senior Debt has been declared to
be prematurely due and payable or payable on demand (and demand has been made)
by reason of an event of default, as defined in such Designated Senior Debt; or


 


(d)                                 enforcement
action has been taken by or on behalf of the lenders under the security
documents granted pursuant to, or securing Indebtedness outstanding under, any
Designated Senior Debt pursuant to which any assets of the Company or any
Restricted Subsidiary thereof are disposed of or sold.


 


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Until the
obligations of any Guarantor or Additional Guarantor under the applicable
Guarantee are due pursuant to the occurrence of the events described above, the
Trustee and the Holders may not make a demand under or bring any enforcement
action on such Guarantee, including but not limited to the commencement or
support of insolvency proceedings with respect to the relevant Guarantor or
Additional Guarantor, until such time. 
Thereafter, the Trustee and the Holders may only demand payment of and
accelerate the Notes and exercise any other remedies that do not involve
enforcement of security; they may not direct the Security Agent to enforce any
security in these circumstances.  No
non-payment Blockage Period may be instituted which would extend beyond the
Standstill Period referred to in Section 12.2.


 


SECTION 12.3.   Liquidation, Dissolution, Bankruptcy.


 


Upon any
payment or distribution (including by exercise of any right of receipt,
set-off, combination of accounts or other discharge) to creditors of any
Guarantor or Additional Guarantor, in a liquidation, dissolution, winding-up,
bankruptcy, administration, reorganization, examination, receivership,
administrative receivership or similar proceeding relating to such Guarantor or
Additional Guarantor or its property, or in an assignment for the benefit of
creditors of such Guarantor or Additional Guarantor or in any marshalling of
such Guarantor or Additional Guarantor’s assets:


 


(1)                                  holders
of all Senior Debt of such Guarantor or Additional Guarantor, including without
limitation lenders under the Credit Agreement and holders of the Private
Placement Notes, will be entitled to receive irrevocable payment in full in
cash of all obligations due (and that become due thereafter) in respect of all
Senior Debt of such Guarantor or Additional Guarantor (including interest
accruing after the commencement of any proceeding at the rate specified in such
Senior Debt whether or not allowable in any such proceeding) before the Trustee
or Holders of Notes will be entitled to receive any payment with respect to the
relevant Guarantee (except that Holders may receive and retain payments made
from any defeasance trust referred to in Article VIII if such trust was
established prior to the proceedings described above and after the termination
of the Intercreditor Agreement and not in breach of the Credit Agreement and
the Private Placement Notes or the terms of any other Senior Debt of such
Guarantor or Additional Guarantor); and


 


(2)                                  until
all Senior Debt of such Guarantor or Additional Guarantor has been irrevocably
paid in full in cash, any payment or distribution to which the Trustee or
Holders of Notes would be entitled but for the subordination provisions of this
Article XII shall be made first to the lenders under the Credit Agreement and
to holders of the Private Placement Notes (in accordance with the Intercreditor
Agreement) if any Indebtedness is then outstanding thereunder and then to
holders of such other Senior Debt of such Guarantor or Additional Guarantor as
their respective interests may appear.


 


SECTION 12.4.   Turnover.  In the event that the Trustee or any Holder of Notes receives or
recovers any payment or distribution on or with respect to a Guarantee (other
than payments made from any defeasance trust referred to in Article VIII if
such trust was established prior to the proceedings described in Section
12.3(1) and not in breach of the Credit Agreement, the Private 


 


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Placement Notes, the
Intercreditor Agreement or the terms of any other Senior Debt of such Guarantor
or Additional Guarantor) at a time when the Trustee or such Holder had actual
knowledge that such payment is prohibited by the provisions of this Article
XII, such payment will be held by the Trustee or such Holder, in trust for the
benefit of, and will be paid forthwith over and delivered, upon written
request, first to the lenders under the Credit Agreement and the holders of the
Private Placement Notes (in accordance with the terms of the Intercreditor
Agreement) if any Indebtedness is then outstanding thereunder and second to the
holders of other Senior Debt of such Guarantor or Additional Guarantor as their
interests may appear for application to the payment of all obligations with
respect to such Indebtedness remaining unpaid to the extent necessary to pay
such obligations in full in cash in accordance with their terms, after giving
effect to any concurrent payment or distribution to or for such lenders or
other holders.  In the event that any
such payment is received by the Trustee or such a Holder, the Trustee or such
Holder shall, if it has actual knowledge that such payment was received at a
time when it was so prohibited, give notice to the agent for the lenders under
the Credit Agreement (if any Indebtedness is then outstanding under the Credit
Agreement) and the holders of the Private Placement Notes (if any Indebtedness
is then outstanding thereunder) and to all other Designated Senior Agents.


 


SECTION 12.5.   Payment Blockage.  (a) 
A Guarantor also may not make any payment in respect of a Guarantee
(except from a defeasance trust referred to in Article VIII) if: (1) a payment
default on Designated Senior Debt of such Guarantor or Additional Guarantor
occurs and is continuing; or (2) any other default occurs and is continuing on
any series of Designated Senior Debt of such Guarantor or Additional Guarantor
that permits (or, with the giving of notice or the passage of time or the
satisfaction of other applicable conditions, or any combination of any of the
foregoing, would permit) holders of that series of Designated Senior Debt of
such Guarantor or Additional Guarantor to accelerate is maturity and the
Trustee receives a Payment Blockage Notice from the Guarantor or the Designated
Senior Agents with respect to the Guarantor or Additional Guarantor.


 


(b)                                 Payments
on the Notes may and shall be resumed: (1) in the case of a payment default,
upon the date on which such default is cured or waived; and (2) in the case of
a nonpayment default, upon the earlier of the date on which such non-payment
default is cured or waived or 179 days after the date on which the applicable
Payment Blockage Notice is received by the Trustee (a “Blockage Period”), unless the maturity of
the Designated Senior Debt of such Guarantor or Additional Guarantor has been
accelerated or clause (1) of Section 12.5(a) otherwise applies.


 


(c)                                  Once
a Payment Blockage Notice has been issued, no additional Payment Blockage
Notice may be delivered unless and until 360 days have elapsed since the
delivery of the immediately preceding Payment Blockage Notice.


 


(d)                                 No
non-payment default in respect of the Notes that existed or was continuing on
the date of delivery of any Payment Blockage Notice to the Trustee will be, or
may be made, the basis for a subsequent Payment Blockage Notice unless such
default has been cured or waived for a period of not less than 180 days.


 


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SECTION 12.6.   Subrogation.  After all Senior Debt of the Guarantor or
Additional Guarantors is paid in full and until the Notes are paid in full,
Holders of Notes shall be subrogated to the rights of holders of Senior Debt of
the Guarantor or Additional Guarantors to receive distributions applicable to
such Senior Debt of the Guarantor or Additional Guarantors.  A distribution made under this Article XII
to holders of Senior Debt of the Guarantor or Additional Guarantors which
otherwise would have been made to Holder of Notes is not, as between the
Company and the Holders, a payment by the Company of such Senior Debt of the
Guarantor or Additional Guarantors.


 


SECTION 12.7.   [Reserved].  [Reserved]


 


SECTION 12.8.   Relative Rights.  This Article XII defines the relative rights
of Holders of Notes and holders of Senior Debt of the Guarantor or Additional
Guarantors.  Nothing in this Indenture
(save as set out in Section 11.3 hereof) shall:


 


(1)                                  impair,
as between any Guarantor or Holders of Notes, the obligation of any such Guarantor
or Additional Guarantor which is absolute and unconditional, subject to the
terms hereof, to guarantee the payment of principal of, premium, if any,
interest, and Additional Amounts, if any, on the Notes in accordance with their
terms; or


 


(2)                                  prevent
the Trustee or any Holder from exercising its available remedies upon a Default
or Event of Default against the Company in respect of the Notes.


 


SECTION 12.9.   Subordination May Not Be Impaired by the
Guarantors.  No right of any holder
of Senior Debt of the Guarantor or Additional Guarantors to enforce the
subordination of the Indebtedness evidenced by the Guarantees shall be impaired
by any act or failure to act by any Guarantor or Additional Guarantor or by the
failure of any Guarantor or Additional Guarantor to comply with this Indenture.


 


SECTION 12.10.   Rights of Trustee and Paying Agent.  The Trustee or Paying Agent may continue to
make payments on the Notes and shall not be charged with knowledge of the
existence of facts that would prohibit the making of any such payments unless,
not less than two Business Days prior to the date of such payment, a
Responsible Officer of the Trustee receives notice in writing satisfactory to
it that payments may not be made under Article XI and this Article XII.  Any Guarantor, the Registrar or
co-registrar, the Paying Agent or a Designated Senior Agent may give the
notice.


 


The Trustee in
its individual or any other capacity may hold Senior Debt of the Guarantor or
Additional Guarantors with the same rights it would have if it were not
Trustee.  The Registrar and co-registrar
and the Paying Agent may do the same with like rights.  The Trustee shall be entitled to all the
rights set forth in this Article XII with respect to any Senior Debt of the
Guarantor or Additional Guarantors which may at any time be held by it, to the
same extent as any other holder of Senior Debt of the Guarantor or Additional
Guarantors; and nothing in Article VII shall deprive the Trustee of any of its
rights as such holder.  Nothing in this
Article XII shall apply to claims of, or payments to, the Trustee under or
pursuant to Section 7.6.


 


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SECTION 12.11.   Articles XI and XII Not To Prevent
Events of Default or Limit Right To Accelerate.  The failure to make a payment in respect of the Notes and any
Guarantee by reason of any provision in Article XI and this
Article XII shall not be construed as preventing the occurrence of a
Default or Event of Default. 
Notwithstanding the provisions of Section 12.2, nothing in
Article XI hereof or this Article XII shall have any effect on the
right of the Holders of Notes or the Trustee to accelerate the maturity of the
Notes provided that the provisions of Section 12.2 are complied with.


 


SECTION 12.12.   Trust Moneys Not Subordinated.  Notwithstanding anything contained herein to
the contrary, payments from money held in trust under Article VIII by the
Trustee for the payment of principal of, premium, if any, and interest on the
Notes and any Guarantee shall not be subordinated to the prior payment of any
Senior Debt of the Guarantor or Additional Guarantors or subject to the
restrictions set forth in Article XI hereof and this Article XII, and
none of the Holders shall be obligated to pay over any such amount to any
holder of Senior Debt of the Guarantor or Additional Guarantors, or any other
creditor of any Guarantor or Additional Guarantor; provided that such trust was established after the
termination of the Intercreditor Agreement and was not established in breach of
the Credit Agreement or the Private Placement Notes.


 


SECTION 12.13.   Trustee Entitled To Rely.  Upon any payment or distribution pursuant to
this Article XII, the Trustee and the Holders shall be entitled to rely
(i) upon any order or decree of a court of competent jurisdiction in which any
proceedings of the nature referred to in Section 12.3 are pending, (ii)
upon a certificate of the liquidating trustee or agent or other Person making
such payment or distribution to the Trustee or to the Holders or (iii) upon the
Designated Senior Agents, for the purpose of ascertaining the Persons entitled
to participate in such payment or distribution, and the holders of other
Indebtedness of the Guarantor or Additional Guarantors, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all
other facts pertinent thereto, to Article XI hereof or to this
Article XII.  In the event that the
Trustee determines, in good faith, that evidence is required with respect to
the right of any Person as a holder of Senior Debt of the Guarantor or
Additional Guarantors to participate in any payment or distribution pursuant to
Article XI or this Article XII, the Trustee may request such Person
to furnish evidence to the reasonable satisfaction of the Trustee as to the
amount of Senior Debt of the Guarantor or Additional Guarantors held by such
Person, the extent to which such Person is entitled to participate in such
payment or distribution and other facts pertinent to the rights of such Person
under Article XI or this Article XII, and, if such evidence is not
furnished, the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment.  The provisions of Sections 7.1 and 7.2 shall
be applicable to all actions or omissions of actions by the Trustee pursuant to
Article XI hereof and this Article XII.


 


SECTION 12.14.   Trustee To Effectuate Subordination.  Each Holder by accepting a Note authorizes
and directs the Trustee on its behalf to take such action as may be necessary
or appropriate to acknowledge or effectuate the subordination between the
Holder and the holders of Senior Debt of the Guarantor or Additional Guarantors
as provided in Article XI and this Article XII.


 


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SECTION 12.15.   Trustee Not Fiduciary for Holders of
Senior Debt of the Guarantors.  The
Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior
Debt of the Guarantor or Additional Guarantors and shall not be liable to any
such holders if, acting in good faith, it shall mistakenly pay over or
distribute to Holders or any Guarantor or Additional Guarantor or any other
Person, money or assets to which any holders of Senior Debt of the Guarantor or
Additional Guarantors shall be entitled by virtue of this Article XII or
otherwise.


 


SECTION 12.16.   Reliance by Holders of Senior Debt of
the Guarantors on Subordination Provisions.  Each Holder by accepting a Note acknowledges and agrees that the
provisions of this Article XII and of Sections 11.5(a)(1) and 11.5(b)(2)
are, and are intended to be, an inducement and a consideration to each holder
of any Senior Debt of the Guarantor or Additional Guarantors, whether such
Senior Debt of the Guarantor or Additional Guarantors was created or acquired
before or after the issuance of the Notes, to acquire and continue to hold, or
to continue to hold, such Senior Debt of the Guarantor or Additional Guarantors
and such holder of Senior Debt of the Guarantor or Additional Guarantors shall
be deemed conclusively to have relied on such provisions in acquiring and
continuing to hold, or in continuing to hold, such Senior Debt of the Guarantor
or Additional Guarantors.


 


ARTICLE XIII


 


SECURITY DOCUMENTS AND COLLATERAL


 


SECTION 13.1.   Security Documents.


 


(a)                                  In
order to secure the due and punctual payment of the principal, premium, if any,
and interest and any Additional Amounts, if any, on the Notes, when the same
shall be due and payable, whether on an interest payment date, at the Stated
Maturity, by acceleration, repurchase, redemption or otherwise, and interest on
the overdue principal of and interest on the Notes and performance of all other
obligations of the Company and the Guarantors to the Holders or the Trustee
under this Indenture, the Notes and the Guarantees, the Company and the
Guarantors have or will on or about the Issue Date, entered into the Security
Documents.  The Security Documents (both
individually and taken together as a whole) and the Liens granted thereunder,
shall, at all times that any obligations under the Notes, Guarantees or this
Indenture are outstanding, be no less favorable to the Second Priority Parties
(subject only to the provisions of the Intercreditor Agreement) than the
Security Documents (both individually and taken together as a whole) and the
Liens granted thereunder, entered into and granted, as the case may be, in
favor of the First Priority Parties. 
Any Person which, after the Issue Date, becomes a Guarantor under this
Indenture, shall, upon becoming a Guarantor under this Indenture, become a
party to a Security Document with respect to the assets or property of such
Person, if any, that secure the Obligations of such Person under the Credit
Agreement, the Private Placement Notes, any Refinancing thereof which is
secured by a Lien or any Senior Debt referred to in clause (c) below.  Each Holder, by accepting a Note, consents
and agrees to all of the terms and provisions of the Security Documents, as the
same may be amended from time to time pursuant to the terms of the Security
Documents and this Indenture, and authorizes and directs the Trustee, who shall
in turn be authorized to instruct the Security Agent to enter into the Security
Documents on its behalf and on behalf of such Holder, to appoint the Security
Agent to serve as security agent and representative 


 


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of the Trustee and such Holder thereunder and in accordance therewith
and to perform its obligations and exercise its rights thereunder and in
accordance therewith.  The Company shall
deliver to the Trustee copies of all documents delivered to the Security Agent
pursuant to the Security Documents, and shall do or cause to be done all such
acts and things as may be necessary or proper, or as may be required by the
provisions of the Security Documents, to assure and confirm to the Trustee and
the Security Agent the security interest in the Collateral contemplated by this
Indenture, the Security Documents or any part hereof or thereof, as from time
to time constituted, so as to render the same available for the security and
benefit of this Indenture and of the Notes and Guarantees secured thereby,
according to the intent and purposes herein and therein expressed.  The Company and the Guarantors shall take,
upon the written request of the Security Agent or the Trustee (to the extent
the Trustee is permitted to make such request under the Security Documents),
any and all actions reasonably required to cause the Security Documents to
create and maintain, as security for the obligations of the Company and the
Guarantors under this Indenture, the Notes and the Guarantees, a valid and
enforceable perfected Lien on and security interest in all of the Collateral,
in favor of the Security Agent for the benefit of the Second Priority Parties.


 


(b)                                 The
Trustee shall, upon receipt of an Officer’s Certificate of the Company or any
Guarantor designating any amendment, refinancing successor or replacement
agreement to any First Priority Debt as Senior Debt of the Company or such
Guarantor pursuant to the definition of Senior Debt, (i) acknowledge in writing
to the Company that, as may be requested in the Officer’s Certificate, the
Security Documents and, if applicable, the Intercreditor Agreement shall be
applicable to the obligations of the Company, such Guarantor or any of their
respective Subsidiaries pursuant to such Senior Debt, or (ii) execute new
Security Documents and, if applicable, an intercreditor agreement on substantially
identical terms as the existing Security Documents and Intercreditor Agreement,
with such changes therein as are necessary to reflect such credit agreement and
the parties thereto.  Any collateral
held by a Security Agent (as defined in the applicable Security Documents) for
the benefit of the Second Priority Parties shall constitute Collateral for
purposes of this Indenture.


 


(c)                                  From
and after the Issue Date, if, following the release of a Lien on any Collateral
securing the Notes and the Guarantees, any property or assets of the Company or
any Guarantor is again made subject to a Lien to secure any Indebtedness owed
to First Priority Parties, the Company or such Guarantor, as the case may be,
shall concurrently grant Liens on no worse terms than Liens securing such
Senior Debt, upon such asset or property as security for the Notes and the
Guarantees and take all such actions (including the filing and recording of
financing statements, mortgages and other documents) that may be required under
any applicable law, or which the Security Agent may reasonably request, to
perfect such Liens under the Security Documents, all at the expense of the
Company or such Guarantors, as the case may be, including reasonable fees and
expenses of counsel incurred by the Security Agent in connection therewith; provided, however, that such Liens may be
subordinated to the Liens securing such Senior Debt on terms no worse than
those described under the Intercreditor Agreement.


 


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SECTION 13.2.   Recordings and Opinions.


 


(a)                                  The
Company and the Guarantors shall take or cause to be taken all action necessary
or required under the Security Documents or reasonably requested by the
Security Agent to maintain, perfect, preserve and protect the Liens on and
security interests in the Collateral granted by the Security Documents, to the
extent necessary or required thereby or so requested by the Security Agent or
the Trustee, including, but not limited to, causing all financing statements,
mortgages, the Security Documents (or a short form version thereof) and other
instruments of further assurance, including, without limitation, continuation
statements covering security interests in personal property, to be promptly
recorded, registered and filed, and at all times to be kept recorded, and shall
execute and file such financing statements and cause to be issued and filed
such continuation statements, all in such manner and in such places as may be
necessary or required by law or so requested by the Security Agent to preserve
and protect the rights of the Second Priority Parties under this Indenture and
the Security Documents to all property comprising the Collateral.  The Company shall from time to time promptly
pay and discharge all mortgage and financing and continuation statement
recording and/or filing fees, charges and taxes relating to this Indenture and
the Security Documents, any amendments thereto and any other instruments of
further assurance required hereto or pursuant to the Security Documents.  Notwithstanding the foregoing, the Trustee
shall not have any duty or obligation to ascertain whether any such taxes are
required to be paid at any time, and the determination referred to in the
preceding sentence shall only be made by the Trustee upon receipt of written
notice that such taxes are due and owing.


 


(b)                                 The
Company shall furnish or cause to be addressed and furnished to the Trustee:


 


(1)                                  at the time of
execution and delivery of this Indenture, Opinions of Counsel substantially in
the form of the opinions of counsel delivered on or before the Issue Date to
the Initial Purchasers relating to any of the Collateral and/or the Security
Documents; and


 


(2)                                  at the time of
delivery thereof after the Issue Date, Opinions of Counsel substantially in the
form of any opinions of counsel delivered after the Issue Date to the
Designated Senior Agents or any Security Agent relating to any of the
Collateral and/or the Security Documents.


 


SECTION 13.3.   Possession, Use and Release of
Collateral.


 


(a)                                  (i)  Each Holder, by accepting a Note, consents
and agrees to the terms of the Security Documents and the Intercreditor
Agreement (including, without limitation, the provisions providing for
foreclosure and release of the Collateral), as the same may be in effect or may
be amended from time to time in accordance with their terms, and is deemed to
authorise and direct (ii) the Trustee, who shall in turn be authorized to
instruct the Security Agent (to the extent provided in the Intercreditor
Agreement), with respect to each of the Security Documents to which the
Security Agent is a party and the Intercreditor Agreement, and (ii) the
Trustee, with respect to the Intercreditor Agreement, to perform their
respective obligations and exercise their respective rights thereunder in
accordance therewith.  Furthermore,
without limiting the generality of the foregoing, each Holder, by accepting a
Note, consents and agrees that Collateral may, and, as


 


103

















 


applicable, shall, be released or substituted in accordance with the
terms of this Indenture and the Security Documents.


 


(b)                                 Without
limiting the provisions of Section 13.3(a) and subject to the provisions
of the Intercreditor Agreement and each other Security Document applicable to
such Collateral:


 


(1)                                  the Trustee shall
release, or instruct the Security Agent to release, as applicable, the Liens
and security interests created by this Indenture and the Security Documents on
any portion of Collateral (Collateral so released, the “Released Interest”)
upon the occurence of any of the following:


 


(i)                                     upon the full and
final payment and peformance of all Obligations of the Company and the
Guarantors under this Indenture and the Notes;


 


(ii)                                  upon a Legal Defeasance
or Covenant Defeasance pursuant to Article VIII;


 


(iii)                               in connection with any
sale or other disposition of the assets of the Company or such Guarantor, if
the sale or other disposition complies with Section 4.6;


 


(iv)                              if the Capital Stock or
assets of the Company or such Guarantor are sold pursuant to an enforcement of
security over such Capital Stock or assets:


 


(a)                                  the proceeds of such
sale received by the Security Agent are in the form of cash (or substantially
all cash); and


 


(b)                                 the claims against the
Company or such Guarantor or their respective assets, as the case may be, are
irrevocably and unconditonally released (and not assumed by the relevant
purchaser or any affiliate of such purchaser of the Company or such Guarantor
or assets, as the case may be) concurrently with such sale; and


 


(c)                                  the sale is either
made pursuant to a public auction or is otherwise made for fair market value
(taking into account the circumstances giving rise to the sale);


 


(v)                                 unless an Event of
Default has occurred or is continuing, upon the designation by the Company of
such Guarantor as an Unrestricted Subsidiary in compliance with the terms of
this Indenture;


 


(vi)                              unless an Event of
Default has occurred or is continuing, upon refinancing of Indebtedness owed to
First Priority Parties with debt financing which is unsecured or equity; or


 


(vii)                           unless an Event of Default
has occurred or is continuing, upon the repayment in full of Indebtedness owed
to First Priority Parties of the Company


 


104

















 


or such
Guarantor with the proceeds of one or more Asset Sales; provided, however, the Company and the
Guarantors’ principal source of liquidity following such repayment of Senior
Debt shall be unsecured.


 


(2)                                  the delivery of an
Officer’s Certificate stating that the terms of this Section 13.3 have been
complied with.


 


(3)                                  unless an Event of
Default has occurred and is continuing, the Company or the applicable Guarantor
will have the right to remain in possession and retain exclusive control of the
Collateral to sell inventory in the ordinary course of business, to freely
operate the Collateral, to vote any securities constituting Collateral and to
collect, invest and dispose of any income thereon; and


 


(i)                                     notwithstanding
the provisions of Section 13.3(a)(ii)(2), so long as no Default has occurred
and is continuing or would result therefrom, the Company and the Guarantors
may, among other things, without any release or consent by the Trustee, conduct
ordinary course activities with respect to the Collateral in accordance with
the provisions of this Indenture and the applicable Security Documents.


 


The Trustee
will execute or instruct the Security Agent to execute, as applicable, all
documents reasonably requested by the Company to confirm the release from the
Lien of this Indenture and the Security Documents of any Collateral disposed of
or otherwise transferred in accordance with this Section 13.3.


 


In the event
that the Company or any Guarantor has sold, exchanged, or otherwise disposed of
or proposes to sell, exchange or otherwise dispose of any portion of the
Collateral that under the provisions of Section 13.3(a)(ii)(1) or (3) may be
sold, exchanged or otherwise disposed of by the Company or any Guarantor, and
the Company requests in writing that the Trustee furnish a written disclaimer,
release or quitclaim of any interest in such property under this Indenture, the
applicable Guarantee, if any, and the Security Documents, upon being satisfied
that the Company or such Guarantor is selling, exchanging or otherwise
disposing of the Collateral in accordance with the provisions of Section
13.3(a)(ii)(1) or (3) (which, in the case of Section 13.03(a)(ii)(3), shall
include receipt of an Officer’s Certificate by the Company reciting the sale,
exchange or other disposition made or proposed to be made and describing in
reasonable detail the assets or property affected thereby, and stating that
such assets or assets or property are property which by the provisions of
Section 13.3(a)(ii)(3) hereof may be sold, exchanged or otherwise disposed of
or dealt with by the Company or such Guarantor without any release or consent
of the Trustee or Security Agent), the Trustee shall promptly execute,
acknowledge and deliver to the Company or instruct the Security Agent to
execute, acknowledge and deliver to the Company, as applicable, such an
instrument in the form provided by the Company, and providing for release
without recourse or warranty, promptly after satisfaction of the conditions set
forth herein for delivery of any such release and shall take such other action
as the Company may reasonably request and as necessary to effect such release.


 


105

















 


Neither the
Company nor any Guarantor shall transfer any Collateral to any Person other
than to the Company, a Guarantor or a Person which will become a Guarantor
simultaneously with such Transfer, unless the Liens on such Collateral created
under the Security Documents are released in accordance with the provisions of
this Section 13.3(a)(ii) or such transfer has been conducted in accordance with
the provisions of Section 13.3(a)(ii)(3).


 


Notwithstanding
the foregoing provisions of this Section 13.3, the release of any Collateral
from the Lien and security interest created by this Indenture and the Security
Documents shall not be deemed to impair the security under this Indenture in
contravention of the provisions hereof if and to the extent the Collateral is
released pursuant to the terms of the Security Documents.


 


(c)                                  If
any conflict or inconsistency exists between this Section 13.3 and the
Intercreditor Agreement or any other applicable Security Documents, the
Intercreditor Agreement and the applicable Security Documents shall govern.


 


SECTION 13.4.   Suits To Protect Collateral.


 


Subject to the
provisions of Sections 7.1 and 7.2, the Trustee may, subject to the provisions
of the Security Documents, in its sole discretion and without the consent of
the Holders of Notes, direct, on behalf of the Holders of Notes, the Security
Agent to take all actions it deems necessary or appropriate in order to enforce
any of the terms of the Security Documents and collect and receive any and all
amounts payable in respect of the obligations of the Company and the Guarantors
under this Indenture, the Notes and the Guarantees.  Subject to the provisions of the Security Documents, the Trustee
shall have power to institute and to maintain such suits and proceedings as it
may deem expedient to prevent any impairment of the Collateral by any acts
which may be unlawful or in violation of any of the Security Documents or this
Indenture, and such suits and proceedings as the Trustee may deem expedient to
preserve or protect its interests and the interests of the Trustee and the Holders
in the Collateral (including power to institute and maintain suits or
proceedings to restrain the enforcement of or compliance with any legislative
or other governmental enactment, rule or order that may be unconstitutional or
otherwise invalid if the enforcement of, or compliance with, such enactment,
rule or order would impair the Lien and security interest created by this
Indenture and the Security Documents or be prejudicial to the interests of the
Holders or the Trustee).


 


SECTION 13.5.   Purchasers Protected.


 


In no event
shall any purchasers in good faith of any property purported to be released
from the Lien and security interest created by this Indenture and the Security
Documents be bound to ascertain the authority of the Trustee or the applicable
Security Agent, as the case may be, to execute the release or to inquire as to
the satisfaction of any conditions required by the provisions of this Indenture
or the Security Documents for the exercise of such authority or to see to the
application of any consideration given by such purchasers or other transferee;
nor shall any purchasers or other transferee of any property or rights
permitted by this Article XIII and the Security Documents to be sold be under
any obligation to ascertain or inquire into the authority of the Company or any
Guarantor to make any such sale or other transfer.


 


106

















 


 


SECTION 13.6.   Powers Exercisable by Receiver or
Trustee.


 


In case
Collateral shall be in the possession of a receiver or trustee, lawfully
appointed, the powers conferred in this Article XIII and the Security Documents
upon the Company and the Guarantors with respect to the release, sale or other
disposition of such property may be exercised by such receiver or trustee, and
an instrument signed by such receiver or trustee shall be deemed the equivalent
of any similar instrument of the Company or a Guarantor or of any Officer or
Officers of the Company or a Guarantor required by the provisions of this
Article XIII.


 


SECTION 13.7.   Determinations Relating to Collateral.


 


In the event
(i) the Trustee shall receive any written request from the Company or any
Guarantor under any Security Document for consent or approval with respect to
any matter or thing relating to any Collateral or the Company’s or any
Guarantor’s obligations with respect thereto, (ii) there shall be required from
the Trustee under the provisions of any Security Document any performance or
the delivery of any instrument or (iii) a Responsible Officer of the Trustee
shall become aware of any nonperformance by the Company or any Guarantor of any
covenant or any breach of any representation or warranty of the Company or any
Guarantor set forth in any Security Document, and, in the case of clause (i),
(ii) or (iii) above, the Trustee’s response or action is not otherwise
specifically contemplated hereunder (including, without limitation, Section
9.1) or under the applicable Security Documents, then, in each such event, the
Trustee shall, within seven Business Days, advise the Holders, in writing and
at the Company’s expense, of the matter or thing as to which consent has been
requested or the performance or instrument required to be delivered or the
nonperformance or breach of which the Trustee has become aware.  The Holders of not less than a majority in
aggregate principal amount of the then outstanding Notes pursuant to Section
6.8 shall have the exclusive authority to direct the Trustee’s response to any
of the circumstances contemplated in clauses (i), (ii) and (iii) above.  In the event the Trustee shall be required
to respond to any of the circumstances contemplated in this Section 13.7, the
Trustee shall not be required so to respond unless it shall have received
written authority from the Holders of not less than a majority in aggregate
principal amount of the then outstanding Notes; provided that the Trustee shall be entitled to hire experts,
consultants, agents and attorneys to advise the Trustee on the manner in which
the Trustee should respond to such request or render any requested performance
or response to such nonperformance or breach (the expenses of which shall be
reimbursed to the Trustee pursuant to Section 7.6).  The Trustee shall be fully protected in the taking of any action
recommended or approved by any such expert, consultant, agent or attorney or
agreed to by the Holders of a majority in aggregate principal amount of the
then outstanding Notes pursuant to Section 6.8.


 


SECTION 13.8.   Certificates of the Company and the
Guarantors.


 


To the extent
applicable, the Company and the Guarantors shall comply (or cause compliance)
with TIA § 313(b), relating to reports, and TIA § 314(d), relating to the
release of property or securities from the Lien and security interest of this
Indenture and the Security Documents and relating to the substitution therefor
of any property or securities to be subjected to the Lien and security interest
of this Indenture and the Security Documents. 
Any certificate or opinion required by TIA § 314(d) may be made by an
Officer of the Company or a Guarantor, as applicable, 


 


107

















 


except in cases where TIA §
314(d) requires that such certificate or opinion be made by an independent
Person, which Person shall be an independent engineer, appraiser or other
expert selected or approved by the Trustee or the Security Agent in the
exercise of reasonable care.


 


SECTION 13.9.   Termination of Security Interest.


 


In the event
that the Company delivers an Officer’s Certificate certifying that its
obligations under this Indenture and the Notes have been satisfied and
discharged by complying with the provisions of Article VIII, and such other
documents and/or funds as are required to be delivered or paid pursuant to
Article VIII, the Trustee shall notify the Security Agent under the Security
Documents that such obligations have been satisfied and discharged in
accordance with the terms of this Indenture, and shall take such other actions
in connection therewith as may be required or contemplated by the Security
Documents to be taken by the Trustee.


 


SECTION 13.10.   Reinstatement of First Priority Parties.


 


If, following
the release of the security interests of the First Priority Parties in
connection with the repayment in full of, and termination of all commitments
under, all Designated Senior Debt, the Company or any Guarantor subsequently
incurs new Senior Debt, the lenders or holders of such Indebtedness (or a
trustee or similar agent on their behalf) shall be First Priority Parties for
purposes of this Indenture and the Intercreditor Agreement (or any replacement
intercreditor agreement).


 


ARTICLE
XIV


 


MISCELLANEOUS


 


SECTION 14.1.   Notices.  Any
notices or other communications required or permitted hereunder shall be in
writing, and shall be sufficiently given if made by hand delivery, by
telecopier or first-class mail, postage prepaid, addressed as follows:


 


	
  if to the
  Company or any Guarantor:

  
	
   

  	
   

  
	
   

  	
  Attention:  Richard A. Barnes

  
	
   

  	
  Waterford
  Wedgwood plc

  
	
   

  	
  Barlaston

  
	
   

  	
  Stoke-on-Trent

  
	
   

  	
  ST 12 9ES

  
	
   

  	
  United
  Kingdom

  
	
   

  	
  Facsimile:  +44 178 220 4501

  



 


108

















 


	
  if to the
  Trustee or Principal Paying Agent:

  
	
   

  	
   

  
	
   

  	
  Attention:  Corporate Trust Administration

  
	
   

  	
  The Bank of
  New York

  
	
   

  	
  One Canada
  Square

  
	
   

  	
  London E14
  5AL

  
	
   

  	
  United
  Kingdom

  
	
   

  	
  Facsimile:  +44 207 964 7298

  
	
   

  	
   

  
	
  with a copy
  to:

  
	
   

  	
   

  
	
   

  	
  The Bank of
  New York

  
	
   

  	
  101 Barclay
  Street,

  
	
   

  	
  New York, NY
  10286

  
	
   

  	
   

  
	
  if to the
  Luxembourg Paying Agent:

  
	
   

  	
   

  
	
   

  	
  Attention:  Department Coupons et Titres Remboursable

  
	
   

  	
  Kredietbank
  S.A. Luxembourgeoise

  
	
   

  	
  43,
  boulevard Royal

  
	
   

  	
  L-2955
  Luxembourg

  
	
   

  	
  Facsimile:  352 47 97 73 906

  



 


Each of the
Company and any Guarantor and the Trustee by written notice to each other such
Person may designate additional or different addresses for notices to such
Person.  Any notice or communication to
the Company and any Guarantor and the Trustee shall be deemed to have been
given or made as of the date so delivered if personally delivered; when receipt
is acknowledged, if telecopied; and five (5) calendar days after mailing if
sent by first class mail, postage prepaid (except that a notice of change of
address and a notice to the Trustee shall not be deemed to have been given
until actually received by the addressee).


 


All notices to
Holders of Definitive Notes will be validly given if mailed to them at their
respective addresses in the register of the Holder of such Notes, if any,
maintained by the Registrar.  In
addition, so long as any of the Notes are listed on the Luxembourg Stock
Exchange and the rules of such stock exchange so requires, notices with respect
to the Notes listed on the Luxembourg Stock Exchange will be published in a
leading newspaper having general circulation in Luxembourg (which is expected
to be the Luxemburger Wort) or,
if in the opinion of the Trustee such publication is not practicable, in an
English language newspaper having general circulation in Europe.  In addition, for so long as any Notes are
represented by Global Notes, all notices to Holders of the Notes will be delivered
to (i) the Book-Entry Depositary and (ii) Euroclear and Clearstream, each of
which will give such notices to the holders of Book Entry Interests.  Each such notice shall be deemed to have
been given on the date of such publication or, if published more than once on
different dates, on the first date on which publication is made; provided that, if notices are mailed, such
notice shall be deemed to have been given on the later of such publication and
the day it is so mailed.  Any notice or
communication mailed to a Holder shall be mailed to such Person by first-class
mail or other equivalent means and shall be sufficiently


 


109

















 


given to him or to her if so
mailed within the time prescribed. 
Failure to mail a notice or communication to a Holder or any defect in
it shall not affect its sufficiency with respect to other Holders.  If a notice or communication is mailed in
the manner provided above, it is duly given, whether or not the addressee
receives it.


 


Where this
Indenture provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice.


 


In the event
that, by reason of the suspension of the regular mail service, or by reason of
any other cause, it shall be impractical to mail notice as required by any
provision of this Indenture, then such notification as shall be made with the
approval of the Trustee (such approval not to be unreasonably withheld or
delayed) shall constitute a sufficient notification for every purpose hereof.


 


SECTION 14.2.   Communications by Holders with Other
Holders.  Holders may communicate
pursuant to Section 312(b) of the TIA with other Holders with respect to their
rights under this Indenture or the Notes. 
The Company, the Trustee, the Registrar and any other person shall have
the protection of Section 312(c) of the TIA.


 


SECTION 14.3.   Certificate and Opinion as to Conditions Precedent.  Upon any request or application by the
Company to the Trustee or an Agent to take any action under this Indenture, the
Company shall furnish to the Trustee at the request of the Trustee:


 


(1)                                  an Officer’s
Certificate, in form and substance reasonably satisfactory to the Trustee
(which shall where appropriate include the statements set forth in Section
14.4), stating that, in the opinion of the signer, all conditions precedent and
covenants, if any, provided for in this Indenture relating to the proposed action
have been satisfied or complied with; and


 


(2)                                  an Opinion of Counsel
in form and substance reasonably satisfactory to the Trustee or such Agent
(which shall where appropriate include the statements set forth in Section
14.4) stating that, in the opinion of such counsel, all such conditions
precedent and covenants have been satisfied or complied with.


 


In any case
where several matters are required to be certified by, or covered by an Opinion
of Counsel of, any specified Person, it is not necessary that all such matters
be certified by, or covered by the Opinion of Counsel of, only one such Person,
or that they be so certified or covered by only one document, but one such
Person may certify or give an Opinion of Counsel with respect to some matters
and one or more such Persons as to other matters, and any such Person may
certify or give an Opinion of Counsel as to such matters in one or several
documents.


 


Any
certificate of an Officer of the Company may be based, insofar as it relates to
legal matters, upon an Opinion of Counsel, unless such Officer knows, or in the
exercise of reasonable care should know, that such Opinion of Counsel with
respect to the matters upon which his certificate is based are erroneous.  Any Opinion of Counsel may be based, and may
state that it is so


 


110

















 


based, insofar as it relates to
factual matters, upon a certificate of, or representations by, an officer or
officers of the Company, stating that the information with respect to such
factual matters is in the possession of the Company, unless such counsel knows,
or in the exercise of reasonable care should know, that the certificate or
representations with respect to such matters are erroneous.


 


Where any
Person is required to make, give or execute two or more applications, requests,
consents, certificates, statements, opinions or other instruments under this
Indenture, they may, but need not, be consolidated and form one instrument.


 


SECTION 14.4.   Statements Required in Certificate or Opinion.  Each certificate or opinion with respect to
compliance with a condition or covenant provided for in this Indenture shall
include:


 


(1)                                  a statement that the
Person making such certificate or opinion has read such condition or covenant;


 


(2)                                  a brief statement as
to the nature and scope of the examination or investigation upon which the
statements or opinions contained in such certificate or opinion are based;


 


(3)                                  a statement that, in
the opinion of such Person, such Person has made such examination or
investigation as is necessary to enable such Person to express an informed
opinion as to whether or not such covenant or condition has been complied with;
and


 


(4)                                  a statement as to
whether or not, in the opinion of each such Person, such condition or covenant
has been complied with.


 


SECTION 14.5.   Rules by Trustee, Paying Agent (Including Principal Paying
Agent), Registrar.  The Trustee,
Paying Agent (including the Principal Paying Agent) or Registrar may make
reasonable rules for its functions, provided
that such rules do not conflict with the provisions of this
Indenture.


 


SECTION 14.6.   Legal Holidays. 
If the date for payment of any amount under this Indenture or the Notes
or any Guarantee is not a Business Day, such payment may be made on the next
succeeding day that is a Business Day, and no interest shall accrue for the
intervening period.


 


SECTION 14.7.   Governing Law.  This Indenture and the Notes, and the rights and
duties of the parties hereunder and thereunder, shall be governed by, and
construed in accordance with, the laws of the State of New York.


 


SECTION 14.8.   Submission to Jurisdiction; Appointment of Agent for Service.  To the fullest extent permitted by
applicable law, each of the Trustee, the Agents, the Company and each Guarantor
irrevocably submits to the non-exclusive jurisdiction of and venue in any
federal or state court in the Borough of Manhattan in the City of New York,
County and State of New York,


 


111

















 


United States of America, in
any suit or proceeding based on or arising out of or under or in connection
with this Indenture or any of the transactions contemplated hereby, and
irrevocably agrees that all claims in respect of such suit or proceeding may be
determined in any such court.  Each of
the Trustee, the Agents, the Company and any Guarantor, to the fullest extent
permitted by applicable law, irrevocably and fully waives the defense of an
inconvenient forum to the maintenance of such suit or proceeding and has irrevocably
designated and appointed CT Corporation System (the “Authorized Agent”), as its authorized agent upon whom
process may be served in any such suit or proceeding.  Each of the Trustee, the Agents, the Company, and any Guarantor
represents that it has notified the Authorized Agent of such designation and
appointment and that the Authorized Agent has accepted the same in
writing.  Each of the Trustee, the
Agents, the Company and any Guarantor has irrevocably authorized and directed
its Authorized Agent to accept such service. 
Each of the Trustee, the Agents, the Company and any Guarantor further
agrees that service of process upon its Authorized Agent and written notice of
said service to the Trustee, the Agents, the Company and any Guarantor, as the
case may be, mailed by first class mail or delivered to its Authorized Agent
shall be deemed in every respect effective service of process upon the Trustee,
the Agents, the Company and any Guarantor, as the case may be, in any such suit
or proceeding.  Nothing herein shall
affect the right of any person to serve process in any other manner permitted
by law.  Each of the Trustee, the
Agents, the Company and any Guarantor agrees, to the fullest extent permitted
by law, that a final action in any such suit or proceeding shall be conclusive
and may be enforced in other jurisdictions by suit on the judgment or in any
other lawful manner.  Each of the
Trustee, the Agents, the Company and each Guarantor hereby irrevocably waives,
to the extent permitted by law, any immunity to jurisdiction to which it may
otherwise be entitled (including, without limitation, immunity to pre-judgment
attachment, post-judgment attachment and execution) in any legal suit, action
or proceeding against it arising out of or based on this Indenture, the Notes
or the transactions contemplated hereby. 
The provisions of this Section 14.8 are intended to be effective upon
the execution of this Indenture and the Notes without any further action by the
Trustee, the Agents, the Company and any Guarantor and, to the fullest extent
permitted by law, the introduction of a true copy of this Indenture into
evidence shall be conclusive and final evidence as to such matters.


 


SECTION 14.9.   Acts of Holders. 
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee, and, where it is hereby expressly required, to the Company.  Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the “act” of the Holders signing such instrument or instruments.  Proof of execution of any such instrument or
of a writing appointing any such agent shall be sufficient for any purpose of
this Indenture and (subject to Section 7.1) conclusive in favor of the Trustee,
the Company and any other obligor upon the Notes, if made in the manner
provided in this Section 14.9.


 


(b)                                 The
fact and date of the execution by any Person of any such instrument or writing
may be proved by the affidavit of a witness of such execution or by the
certificate of any notary


 


112

















 


public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the execution
thereof.  Where such execution is by an
officer of a corporation or a member of a partnership or other entity, on
behalf of such corporation or partnership or other entity, such certificate or
affidavit shall also constitute sufficient proof of such Person’s authority to
execute the same, may also be provided in any other manner that the Trustee
deems sufficient.


 


(c)                                  Any
request, demand, authorization, direction, notice, consent, waiver or other
action by the Holder of any Note shall bind the Holder of every Note issued
upon the transfer thereof or in exchange therefor or in lieu thereof in respect
of anything done or suffered to be done by the Trustee, the Company or any
other obligor upon the Notes in reliance thereon, whether or not notation of
such action is made upon such Note.


 


SECTION 14.10.   No Personal Liability of Directors,
Officers and Others.  No director,
officer, employee, incorporator or stockholder of the Company and no director,
officer, employee or incorporator of any Guarantor shall have any liability for
any obligations of the Company or any Guarantor under the Notes, the Guarantees
or the Indenture or for any claim based on, in respect of, or by reason of,
such obligations or their creation. 
Each Holder of Notes by accepting a Note waives and releases all such
liability.  The waiver and release are
part of the consideration for issuance of the Notes.


 


SECTION 14.11.   Currency Indemnity.  The euro is the sole currency of account and
payment for all sums payable by the Company under or in connection with the
Notes including damages.  Any amount
received or recovered in a currency other than euro, whether as a result of, or
the enforcement of, a judgment or order of a court of any jurisdiction, in the
winding-up or dissolution of the Company or otherwise, by any Holder of a Note
or by the Trustee in respect of any sum expressed to be due to it from the
Company will only constitute a discharge to the Company to the extent of the
euro amount which the recipient is able to purchase with the amount so received
or recovered in that other currency on the date of that receipt or recovery
(or, if it is not practicable to make that purchase on that date, on the first
date on which it is practicable to do so).


 


If that euro
amount is less than the euro amount expressed to be due to the recipient under
any Note or the Trustee, the Company will indemnify them against any loss
sustained by such recipient as a result. 
In any event, the Company will indemnify the recipient against the cost
of making any such purchase.  For the
purposes of this currency indemnity provision, it will be sufficient for the
Holder of a Note or the Trustee to certify in a satisfactory manner (indicating
the sources of information used) that it would have suffered a loss had an
actual purchase of euro been made with the amount so received in that other
currency on the date of receipt or recovery (or, if a purchase of euro on such
date had not been practicable, on the first date on which it would have been
practicable, it being required that the need for a change of date be certified
in the manner mentioned above).  These
indemnities constitute a separate and independent obligation from the Company’s
other obligations, will give rise to a separate and independent cause of
action, will apply irrespective of any indulgence granted by any Holder of a
Note or the Trustee and will continue in full force and effect despite any other
judgment, order, claim or proof for a liquidated amount in respect of any sum
due under any Note or to the Trustee.


 


113

















 


SECTION 14.12.   Currency Calculation.  Except as otherwise expressly set forth
herein, for purposes of determining compliance with any euro-denominated
restriction herein, the euro-equivalent amount for purposes hereof that is
denominated in a non-euro currency shall be calculated based on the relevant
currency exchange rate in effect on the date such non-euro amount is incurred
or made, as the case may be.


 


SECTION 14.13.   Information.  For so long as the Notes are listed on the
Luxembourg Stock Exchange, and the rules of such stock exchange so requires,
copies of this Indenture will be made available in Luxembourg through the
offices of the Paying Agent in such city.


 


SECTION 14.14.   Successors.  All agreements of the Company and any
Guarantor in this Indenture and the Notes shall bind their respective
successors.  All agreements of the
Trustee in this Indenture shall bind its successor.


 


SECTION 14.15.   Counterpart Originals.  All parties hereto may sign any number of
copies of this Indenture.  Each signed
copy or counterpart shall be an original, but all of them together shall represent
one and the same agreement.


 


SECTION 14.16.   Severability.  In case any one or more of the provisions in
this Indenture or in the Notes shall be held invalid, illegal or unenforceable,
in any respect for any reason, the validity, legality and enforceability of any
such provision in every other respect and of the remaining provisions shall not
in any way be affected or impaired thereby, it being intended that all of the
provisions hereof shall be enforceable to the full extent permitted by law.


 


SECTION 14.17.   Table of Contents, Headings, etc.  The Table of Contents and Headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part of this Indenture and shall in
no way modify or restrict any of the terms or provisions hereof.


 


SECTION 14.18.   Prescription.  Claims against the Company or any Guarantor
for payment of principal, premium, if any, interest, and Additional Amounts, if
any, on the Notes will become void unless presentment for payment is made
(where so required herein) within, in the case of principal, and Additional
Amounts, if any, a period of ten years or, in the case of interest, a period of
five years, in each case from the applicable original payment date therefor,
unless such prescription is not permitted by applicable law.


 


SECTION 14.19.   Benefits of Indenture.  Nothing in this Indenture or in the Notes,
expressed or implied, shall give to any Person, other than the parties hereto
their successors hereunder, any Agent and the Holders, any benefit or any legal
or equitable right, remedy or claim under this Indenture.


 


SECTION 14.20.   Waiver of Jury Trial.


 


EACH OF THE PARTIES HERETO IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO
TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING


 


114

















 


TO
THIS INDENTURE, THE NOTES OR THE TRANSACTIONS CONTEMPLATED HEREBY.


 


115

















 


IN WITNESS
WHEREOF, the parties hereto have caused this Indenture to be duly executed, as
of the date first written above.


 


	
   

  	
  WATERFORD
  WEDGWOOD PLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Richard Barnes

  
	
   

  	
   

  	
  Name:

  	
  RICHARD BARNES

  
	
   

  	
   

  	
  Title:

  	
  CFO

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  WATERFORD
  WEDGWOOD UK PLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Richard Barnes

  
	
   

  	
   

  	
  Name:

  	
  RICHARD BARNES

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  WATERFORD
  CRYSTAL LIMITED

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Richard Barnes

  
	
   

  	
   

  	
  Name:

  	
  RICHARD BARNES

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ALL-CLAD
  HOLDINGS, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Christopher J. McGillivary

  
	
   

  	
   

  	
  Name:

  	
  CHRISTOPHER J. McGILLIVARY

  
	
   

  	
   

  	
   

  
	
   

  	
  WATERFORD
  WEDGWOOD USA, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Christopher J. McGillivary

  
	
   

  	
   

  	
  Name:

  	
  CHRISTOPHER J. McGILLIVARY

  
	
   

  	
   

  	
   

  	
   

  
	
  INDENTURE

  



 

















 


	
   

  	
   

  	
  WEDGWOOD LIMITED

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Richard Barnes

  
	
   

  	
   

  	
  Name:

  	
  RICHARD BARNES

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  WATERFORD
  CRYSTAL

  (MANUFACTURING) LTD

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Richard Barnes

  
	
   

  	
   

  	
  Name:

  	
  RICHARD BARNES

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  WATERFORD
  WEDGWOOD GMBH

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Richard Barnes

  
	
   

  	
   

  	
  Name:

  	
  RICHARD BARNES

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  STATUM
  LIMITED

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Richard Barnes

  
	
   

  	
   

  	
  Name:

  	
  RICHARD BARNES

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  WATERFORD
  WEDGWOOD RETAIL

  LIMITED

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Richard Barnes

  
	
   

  	
   

  	
  Name:

  	
  RICHARD BARNES

  



 

















 


	
   

  	
  WATERFORD
            CRYSTAL

  (MANUFACTURING) LIMITED

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Patrick
  J. Dowling

  
	
   

  	
   

  	
  Name:

  	
  PATRICK J.
  DOWLING

  



 

















 


	
   

  	
   

  	
  STUART &
  SONS LIMITED

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Richard Barnes

  
	
   

  	
   

  	
  Name:

  	
  RICHARD BARNES

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  JOSIAH
  WEDGWOOD & SONS (EXPORTS) LIMITED

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Richard Barnes

  
	
   

  	
   

  	
  Name:

  	
  RICHARD BARNES

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ALL-CLAD
  METAL CRAFTERS LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Peter
  Cameron 

  
	
   

  	
   

  	
  Name:

  	
  PETER
  CAMERON

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  CLAD METALS
  LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Peter
  Cameron 

  
	
   

  	
   

  	
  Name:

  	
  PETER
  CAMERON

  
	
   

  	
   

  	
   

  
	
   

  	
  CLAD
  HOLDINGS CORP.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Peter
  Cameron 

  
	
   

  	
   

  	
  Name:

  	
  PETER
  CAMERON

  



 

















 


	
   

  	
  JOSIAH
  WEDGWOOD & SONS LIMITED

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Richard Barnes

  
	
   

  	
   

  	
  Name:

  	
  RICHARD BARNES

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  WATERFORD
  WEDGWOOD JAPAN LIMITED

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Richard Barnes

  
	
   

  	
   

  	
  Name:

  	
  RICHARD BARNES

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  WW INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Richard Barnes

  
	
   

  	
   

  	
  Name:

  	
  RICHARD BARNES

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  WATERFORD
  WEDGWOOD FINANCE, INC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Richard Barnes

  
	
   

  	
   

  	
  Name:

  	
  RICHARD BARNES

  
	
   

  	
   

  	
   

  
	
   

  	
  WATERFORD
  WEDGWOOD

  HOLDINGS, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Chrstopher J. McGillivary

  
	
   

  	
   

  	
  Name:

  	
  CHRSTOPHER J. McGILLIVARY

  



 

















 


	
   

  	
  WATERFORD
  WEDGWOOD INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Richard Barnes

  
	
   

  	
   

  	
  Name:

  	
  RICHARD
  BARNES

  



 

















 


	
   

  	
  THE BANK OF
  NEW YORK, LONDON, as

  Trustee, Registrar, Transfer Agent and Principal

  Paying Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Trevor
  Blewer

  	
   

  
	
   

  	
   

  	
  Name:  TREVOR BLEWER

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  KREDIETBANK
  S.A. LUXEMBOURGEOISE, as

  Paying Agent and Transfer Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Marc Pedretti

  	
   

  
	
   

  	
   

  	
  Name:  MARC PEDRETTI

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Bernard Soetens

  	
   

  
	
   

  	
   

  	
  Name:  BERNARD SOETENS

  
					



 

















 


EXHIBIT A


TO THE INDENTURE


 


[FORM OF FACE OF INITIAL GLOBAL NOTE]


 


THIS BEARER NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS INITIALLY ISSUED TO THE BOOK-ENTRY DEPOSITARY OR
ITS CUSTODIAN PURSUANT TO THE DEPOSIT AGREEMENT REFERRED TO IN THE
INDENTURE.  TRANSFERS OF THIS GLOBAL
NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO A NOMINEE OR
CUSTODIAN OF THE BOOK-ENTRY DEPOSITARY, TO THE BOOK-ENTRY DEPOSITARY OR, IN
EACH CASE, TO ANOTHER SUCCESSOR OF THE BOOK-ENTRY DEPOSITARY OR A NOMINEE OR
CUSTODIAN OF SUCH SUCCESSOR AND ANY SUCH TRANSFERS SHALL BE LIMITED TO
TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH HEREIN AND IN THE
INDENTURE.


 


THIS NOTE OF WATERFORD WEDGWOOD PLC HAS NOT BEEN REGISTERED UNDER THE
U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “U.S. SECURITIES ACT”), OR ANY
OTHER SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION.  NEITHER THIS NOTE NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION UNLESS
THE TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE U.S. SECURITIES ACT.


 


THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF (1) AGREES THAT IT
WILL NOT PRIOR TO (X) THE DATE WHICH IS TWO YEARS (OR SUCH SHORTER PERIOD OF
TIME AS PERMITTED BY RULE 144(k) UNDER THE U.S. SECURITIES ACT OR ANY SUCCESSOR
PROVISION THEREUNDER) AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF (OR OF
ANY PREDECESSOR OF THIS NOTE) OR THE LAST DAY ON WHICH WATERFORD WEDGWOOD PLC
OR ANY AFFILIATE OF WATERFORD WEDGWOOD PLC WAS THE OWNER OF THIS NOTE (OR ANY
PREDECESSOR OF THIS NOTE) AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED
BY APPLICABLE LAW (THE “RESALE RESTRICTION TERMINATION DATE”), OFFER, SELL OR
OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO WATERFORD WEDGWOOD PLC, (B) PURSUANT
TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE U.S. SECURITIES
ACT, (C) FOR SO LONG AS THIS NOTE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A
UNDER THE U.S. SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A
“QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE U.S.
SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A UNDER THE U.S. SECURITIES ACT, (D) PURSUANT
TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES
WITHIN THE MEANING OF


 


A-1

















 


REGULATION S UNDER THE U.S.
SECURITIES ACT OR (E) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE U.S. SECURITIES ACT, AND (2) AGREES THAT IT
WILL GIVE TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND; PROVIDED THAT WATERFORD WEDGWOOD
PLC, THE TRUSTEE AND THE REGISTRAR SHALL HAVE THE RIGHT PRIOR TO ANY SUCH
OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D) PRIOR TO THE END OF THE 40-DAY
DISTRIBUTION COMPLIANCE PERIOD WITHIN THE MEANING OF REGULATION S UNDER THE
U.S. SECURITIES ACT OR PURSUANT TO CLAUSE (E) PRIOR TO THE RESALE RESTRICTION
TERMINATION DATE TO REQUIRE THAT AN OPINION OF COUNSEL, CERTIFICATIONS AND/OR
OTHER INFORMATION SATISFACTORY TO WATERFORD WEDGWOOD PLC, THE TRUSTEE AND THE
REGISTRAR IS COMPLETED AND DELIVERED BY THE TRANSFEROR.  THIS LEGEND WILL BE REMOVED UPON THE REQUEST
OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.  AS USED HEREIN, THE TERMS “OFFSHORE
TRANSACTION”, “UNITED STATES” AND “U.S. PERSON” HAVE THE MEANINGS GIVEN TO THEM
BY REGULATION S UNDER THE U.S. SECURITIES ACT.


 


A-2

















 


WATERFORD WEDGWOOD PLC


 


97/8  % Mezzanine
Note due 2010


 


	
  [Common Code
  No.:                  ](1)

  
	
   

  
	
  [ISIN
  No.:                 ](1)

  
	
   

  
	
  [CUSIP
  No.:                ](1)

  



 


No.            


 


WATERFORD
WEDGWOOD PLC, a public limited company incorporated under the laws of Ireland
and having its registered office at Kilbarry, Waterford, Ireland (the
“Company,” which term includes any successor corporation), for value received
promises to pay to the bearer hereof upon surrender hereof the principal sum
indicated on Schedule A hereof, on December 1, 2010.


 


Interest
Payment Dates:  June 1 and December 1 of
each year, commencing June 1, 2004.


 


Reference is
made to the further provisions of this Note contained herein, which will for
all purposes have the same effect as if set forth at this place.


 


 












(1)                                  Insert
as applicable.


 


A-3

















 


IN WITNESS
WHEREOF, the Company has caused this Note to be signed manually or by facsimile
by its duly authorized officer.


 


 


	
   

  	
  WATERFORD
  WEDGWOOD PLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
  This is one
  of the Notes referred to

  in the within-mentioned Indenture:

  	
   

  
	
   

  	
   

  
	
  THE BANK OF
  NEW YORK, LONDON, as Trustee

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
   

  
							



 


A-4

















 


[FORM OF REVERSE]


 


WATERFORD WEDGWOOD PLC


 


97/8% Mezzanine Note
due 2010


 


 


1.   Interest.  WATERFORD WEDGWOOD PLC, a public limited company incorporated
under the laws of Ireland and having its registered office at Kilbarry,
Waterford, Ireland (the “Company”), promises to pay interest on the principal
amount of this Note at the rate and in the manner specified below.  Interest on the Notes will accrue at 97/8%
per annum on the principal amount then outstanding, and be payable
semi-annually in arrears on each June 1 and December 1, or if any such day is
not a Business Day, on the next succeeding Business Day, commencing June 1,
2004, to the Holder hereof. 
Notwithstanding any exchange of this Note for a Definitive Note during
the period starting on a Record Date relating to such Definitive Note and
ending on the immediately succeeding interest payment date, the interest due on
such interest payment date shall be payable to the Holders of the Global Note
on such record date.  Interest on the
Notes will accrue from the most recent date to which interest has been paid or,
if no interest has been paid, from December 1, 2003.  Interest will be computed on the basis of a 360-day year of
twelve 30-day months.


 


The Company
shall (to the extent permitted by law) pay interest on overdue principal and on
overdue installments of interest (without regard to any applicable grace
periods), and on any overdue Additional Amounts, from time to time at the rate
borne by the Notes.  Any interest paid
on this Note shall be increased to the extent necessary to pay Additional
Amounts as set forth in the Indenture and herein.


 


2.   Additional Amounts.  All payments made by the Company, the
Guarantors or a successor of either (a “Payor”) on the Notes and under the
Guarantees will be made without withholding or deduction for, or on account of,
any present or future taxes, duties, assessments or governmental charges of
whatever nature (“Taxes”) imposed or levied by or on behalf of:


 


(1)  Luxembourg, the United States, Ireland or
any political subdivision or governmental authority of any thereof or therein
having power to tax,


 


(2)  any jurisdiction from or through which
payment on the Notes or any Guarantee is made, or any political subdivision or
governmental authority thereof or therein having the power to tax, or


 


(3)  any other jurisdiction in which the Payor is
organized or otherwise considered to be a resident for tax purposes, or any
political subdivision or governmental authority thereof or therein having the
power to tax (each of this Section 2(1), (2) and (3), a “Relevant Taxing Jurisdiction”)


 


A-5

















 


unless the withholding or
deduction of such Taxes is then required by law.  If any deduction or withholding for, or on account of, any Taxes
of any Relevant Taxing Jurisdiction will at any time be required from any
payments made with respect to the Notes or under the Guarantees, including
payments of principal, redemption price, interest or premium, if any, the Payor
will pay (together with such payments) such additional amounts (the “Additional Amounts”) as may be necessary
in order that the net amounts received in respect of such payments by the
Holders of the Notes or the Trustee, as the case may be, after such withholding
or deduction (including any such deduction or withholding from such Additional
Amounts), equal the amounts which would have been received in respect of such
payments on the Notes in the absence of such withholding or deduction; provided, however, that no such Additional
Amounts will be payable with respect to:


 


(1)                                  any
payments to a Holder or beneficial owner who is liable for such Taxes in
respect of such Note by reason of the Holder’s or beneficial owner’s having any
present or former connection with the Relevant Taxing Jurisdiction (including
being a citizen or resident or national of, or carrying on a business or
maintaining a permanent establishment in, or being physically present in, the
Relevant Taxing Jurisdiction) other than by the mere holding of such Note or enforcement
of rights thereunder or the receipt of payments in respect thereof;


 


(2)                                  any
Taxes that are imposed or withheld where such withholding or imposition is by
reason of the failure of the Holder or beneficial owner of the Note to comply
with any reasonable and timely request by the Payor to provide information
concerning the nationality, residence or identity of such Holder or beneficial
owner or to make any declaration or similar claim or satisfy any certification,
information or other reporting requirement relating to such matters, which is
required or imposed by a statute, treaty, regulation, protocol, or
administrative practice of the Relevant Taxing Jurisdiction as a precondition
to exemption from all or part of such Taxes;


 


(3)                                  except
in the case of the winding up of the Payor, any Note presented for payment
(where presentation is required) in the Relevant Taxing Jurisdiction (unless by
reason of the Payor’s actions, presentment could not have been made elsewhere
and except to the extent that the Holder would have been entitled to Additional
Amounts had the Notes been presented elsewhere);


 


(4)                                  any
Note presented for payment (where presentation is required) more than 30 days
after the relevant payment is first made available for payment to the Holder
(except to the extent that the Holder would have been entitled to Additional
Amounts had the Note been presented during such 30 day period);


 


(5)                                  any
Taxes that are payable otherwise than by withholding from a payment of the
principal of, premium, if any, or interest, on the Notes or any Guarantee;


 


(6)                                  any
estate, inheritance, gift, sale, transfer, personal property or similar tax,
assessment or other governmental charge;


 


A-6

















 


(7)                                  any
Taxes imposed on a payment to an individual and required to be made pursuant to
any European Union Directive (a “Directive”) on the taxation of savings
implementing the conclusions of the ECOFIN Council meeting of June 3, 2003 or
any law implementing or complying with, or introduced in order to conform to,
such Directive; or


 


(8)                                  any
Taxes imposed in connection with a Note presented for payment by or on behalf
of a Holder or beneficial owner who would have been able to avoid such Tax by
presenting the relevant Note to another paying agent in a member state of the
European Union.


 


Such Additional Amounts will
also not be payable where, had the beneficial owner of the Note been the Holder
of this Note, it would not have been entitled to payment of Additional Amounts
by reason of any of clauses (1) to (8) inclusive above.


 


3.   Method of Payment.  The Company shall pay interest on this Note
to the bearer hereof.  The Holder must
surrender this Note to a Paying Agent to collect principal payments.  The Company shall pay all amounts owing
hereunder in euro.  Immediately
available funds for the payment of the principal of (and premium, if any),
interest, and Additional Amounts, if any, on this Note due on any interest
payment date, Maturity Date, Redemption Date or other repurchase date will be
made available to the Paying Agent to permit the Paying Agent to pay such funds
to the Holders on such respective dates.


 


4.   Paying Agent and Registrar.  Initially, The Bank of New York, London will
act as Principal Paying Agent and Registrar. 
In addition, Kredietbank S.A.Luxembourgeoise will act as Luxembourg
Paying Agent.  In the event that a
Paying Agent or transfer agent is replaced, the Company will provide notice
thereof as set forth in the Indenture. 
The Company or any of its Subsidiaries may, subject to certain
exceptions, act in any such capacity.


 


5.   Indenture.  The Company issued the Notes under an indenture, dated as of
December 1, 2003 (the “Indenture”), among the Company, The Bank of New York,
London, as Trustee, Registrar, Principal Paying Agent and transfer agent (the
“Trustee”), and Kredietbank S.A. Luxembourgeoise, as Luxembourg Paying Agent
and transfer agent.  This Note is one of
a duly authorized issue of Notes (as defined in the Indenture) of the Company
designated as its 97/8%
Mezzanine Notes due 2010 (the “Notes”). 
The Notes include the Initial Notes and Additional Notes, if any.  The terms of the Notes include those stated
in the Indenture.  Notwithstanding
anything to the contrary herein, the Notes are subject to all such terms, and
Holders of Notes are referred to the Indenture.  The Notes are general obligations of the Company.  The Notes are not limited in aggregate
principal amount and Additional Notes (as defined in the Indenture) may be
issued from time to time under the Indenture, in each case subject to the terms
of the Indenture; provided that
the aggregate principal amount of Initial Notes that will be issued on the
Issue Date will not exceed  €166,028,000 (one hundred sixty-six
million twenty-eight thousand euro). 
Each Holder, by accepting a Note, agrees to be bound by all of the terms
and provisions of the Indenture, as the same may be amended from time to
time.  Capitalized terms used but not
otherwise defined herein shall have the meanings assigned them in the
Indenture.


 


A-7

















 


6.   Guarantees.  Each of the Guarantors has guaranteed
pursuant to the terms of the Indenture the full and punctual payment of the
principal of, premium, if any, interest, and Additional Amounts, if any, on the
Notes and all other payment obligations of the Company under the Indenture when
and as the same shall be due and payable, whether at maturity, by acceleration
or otherwise, according to the terms of the Indenture.  In addition, the Company may from time to
time designate Additional Guarantors to provide Additional Guarantees in favor
of the Notes.  The guarantees given by
the Guarantors or any Additional Guarantor are subject to release in the
circumstances described in the Indenture.


 


7.   Special Mandatory Redemption; Notice.  If the Release has not occurred on or before
5:00 p.m., London time, on the Deadline, then the Company will, on a day not
more than 10 Business Days following the Deadline (such date, the “Special
Mandatory Redemption Date”), redeem all of the Notes (the “Special Mandatory
Redemption”) at a price equal to the issue price of the Notes (being 99.381% of
the principal amount of the Notes) plus accrued and unpaid interest from the
Issue Date of the Notes, (the “Special Mandatory Redemption Price”).  Notice of the Special Mandatory Redemption
will be mailed promptly to each Holder of Notes in accordance with the
provisions of Section 3.5 of the Indenture. 
Upon receipt of the notice of Special Mandatory Redemption, the Escrow
Agent will liquidate all Escrowed Property held by it no later than the
Business Day prior to the Special Mandatory Redemption Date.  On the Special Mandatory Redemption Date,
the Escrow Agent shall pay to a paying agent for payment to each Holder of
Notes the Special Mandatory Redemption Price for such Holder’s Notes and,
concurrently with the payment to such Holders, deliver any excess Escrowed
Property to the Company.


 


8.   Optional Redemption.  The Notes will be redeemable, at the
Company’s option, in whole or in part, on and after December 1, 2006, upon not
less than 30 nor more than 60 days’ prior notice at the redemption prices
(expressed as a percentage of principal amount) set forth below, plus accrued
and unpaid interest, if any, and Additional Amounts, if any (each, a
“Redemption Price”), to the date fixed by the Company for redemption (a
“Redemption Date”), if redeemed during the twelve-month period beginning on
December 1 of each of the years indicated below:


 


	
  Year

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2006

  	
   

  	
  109.875

  	
  %

  
	
  2007

  	
   

  	
  104.938

  	
  %

  
	
  2008

  	
   

  	
  102.469

  	
  %

  
	
  2009 and thereafter

  	
   

  	
  100.000

  	
  %

  



 


In the event
that the Company effects an optional redemption of the Notes, the Company will
inform the Luxembourg Stock Exchange of such optional redemption and confirm
the aggregate principal amount of the Notes that will remain outstanding
following such redemption.


 


In addition,
at any time, or from time to time, on or prior to December 1, 2006, the Company
may on any one or more occasions, at its option, redeem up to 35% of the
aggregate


 


A-8

















 


principal amount of the Notes
issued under the Indenture with funds in an aggregate amount (the “Redemption
Amount”) not exceeding the aggregate net cash proceeds of one or more Public
Equity Offerings at a redemption price of 109.875% of the principal amount
thereof, plus in each case accrued and unpaid interest, if any, and Additional
Amounts, if any (each, a “Redemption Price”), to the date fixed by the Company
for redemption (a “Redemption Date”); provided
that (i) at least 65% of the aggregate principal amount of the Notes issued
under the Indenture remain outstanding after the occurrence of any and each
such redemption and (ii) the redemption must occur within 90 days of the date
of the closing of such Public Equity Offering. 
Any redemption notice given in respect of the redemption referred to in
this paragraph may be given prior to completion of the related Public Equity
Offering, and any such redemption or notice may, at the Company’s discretion,
be subject to the satisfaction of one or more conditions precedent, including
but not limited to the completion of the related Public Equity Offering.


 


9.   Special Tax Redemption.   The Company may, at its option, redeem the
Notes in whole, but not in part, at any time upon giving not less than 30 nor
more than 60 days’ notice to the Holders of the Notes (which notice will be
irrevocable) at a redemption price equal to 100% of the principal amount
thereof, together with accrued and unpaid interest, if any, to the date fixed
for redemption (a “Tax Redemption Date”), and all Additional Amounts, if any,
then due and which will become due on the Tax Redemption Date as a result of
the redemption or otherwise, if any, if the Company determines that, as a
result of: (1) any change in, or amendment to, the law or treaties (or any
regulations or rulings promulgated thereunder) of a Relevant Taxing
Jurisdiction (as defined above) affecting taxation; or (2) any change in
position regarding the application, administration or interpretation of such
laws, treaties, regulations or rulings (including a holding, judgment or order
by a court of competent jurisdiction), (each of the foregoing in clauses (1)
and (2), a “Change in Tax Law”), the Company is, or on the next interest
payment date in respect of the Notes would be, required to pay any Additional
Amounts, and the Company cannot avoid such obligation by taking reasonable
measures available to it.  In the case
of the Company, the Change in Tax Law must become effective on or after
November 27, 2003.  In the case of a
Successor Company, the Change in Tax Law must become effective after the date
that such entity first makes payment on the Notes.  Notice of redemption for taxation reasons will be published in
accordance with the procedures in the Indenture.  Notwithstanding the foregoing, no such notice of redemption will
be given earlier than 90 days prior to the earliest date on which the Company
would be obliged to make such payment or withholding if a payment in respect of
such Notes were then due.  Prior to the
publication or mailing of any notice of redemption of any Notes pursuant to the
foregoing, the Company will deliver to the Trustee an opinion of an independent
tax counsel reasonably satisfactory to the Trustee to the effect that the
circumstances referred to above exist and the Trustee shall be entitled to
accept such opinion as sufficient evidence of the satisfaction of the
conditions referred to above, in which event it will be conclusive and binding
on all present and future Holders of Notes.


 


10.   Selection and Notice of Redemption.  In the event that the Company chooses to
redeem less than all of the Notes, selection of the Notes for redemption will
be made by the Trustee in compliance with the requirements of the principal
national securities exchange, if any, on which the Notes are listed as notified
by the Company to the Trustee and/or in compliance with the requirements of
each relevant Clearing Agency or if such Notes are not so listed or


 


A-9

















 


such exchange prescribes no
method of selection and the Notes are not held through a Clearing Agency or
such Clearing Agency prescribes no method of selection, on a pro rata basis, by lot or by such method as
the Trustee shall deem fair and appropriate.


 


No Notes of a
principal amount of €1,000 or less shall be redeemed in part.  Notice of redemption will be mailed by
first-class mail at least 30 but not more than 60 days before the redemption
date to each Holder of Notes to be redeemed at its registered address.  If any Note is to be redeemed in part only,
then the notice of redemption that relates to such Note must state the portion
of the principal amount thereof to be redeemed.  A new Note in a principal amount equal to the unredeemed portion
thereof will be issued in the name of the Holder thereof upon cancellation of
the original Note.  On and after the
redemption date, interest will cease to accrue on Notes or portions thereof
called for redemption as long as the Company has deposited with the Paying
Agent funds in satisfaction of the applicable redemption price.


 


If and for so
long as the Notes are listed on the Luxembourg Stock Exchange and the rules of
such exchange so require, the Company shall publish notice of redemption in
Luxembourg in a daily newspaper with general circulation in
Luxembourg (which is expected to be the Luxemburger
Wort).


 


11.   Denominations: Form.  The Global Notes are in global bearer form,
without coupons, in denominations of €1,000 and integral multiples of
€1,000.


 


12.   Persons Deemed Owners.  The bearer of this Note shall be treated as
the owner of this Note for all purposes, subject to the terms of the Indenture.


 


13.   Unclaimed Funds.  If funds for the payment of principal,
interest, premium, if any, or Additional Amounts, if any, remain unclaimed for
two years, the Trustee and the Paying Agents will repay the funds to the
Company at its written request.  After
that, all liability of the Trustee and such Paying Agents with respect to such
funds shall cease.


 


14.   Legal Defeasance and Covenant Defeasance.  The Company and the Guarantors may be
discharged from their respective obligations under the Indenture, the Notes and
the Guarantees except for certain provisions thereof, and may be discharged
from their respective obligations to comply with certain covenants contained in
the Indenture, in each case upon satisfaction of certain conditions specified
in the Indenture.


 


15.   Amendment; Supplement; Waiver.  Subject to certain exceptions specified in
the Indenture, the Indenture (including any supplemental indenture), the Notes
or the Guarantees may be amended or supplemented with the written consent of
the Holders of at least a majority in aggregate principal amount of the Notes
then outstanding, and any existing Default or Event of Default or compliance
with any provision of the Indenture or the Notes may be waived with the consent
of the Holders of a majority in aggregate principal amount of the Notes then
outstanding.


 


16.   Restrictive Covenants.  The Indenture imposes certain covenants
that, among other things, limit the ability of the Company and its Restricted
Subsidiaries to incur additional


 


A-10

















 


Indebtedness, pay dividends or
make other distributions or investments, repurchase Capital Stock of the
Company or make certain other Restricted Payments, enter into certain
consolidations or mergers or enter into certain transactions with Affiliates
and consummate certain mergers and consolidations or sales of all or
substantially all assets.  The
limitations are subject to a number of important qualifications and exceptions.


 


17.   Successors.  When a successor assumes all the obligations
of its predecessor under the Notes, the Indenture and/or any Guarantee in
accordance with the terms of the Indenture, the predecessor will be released
from those obligations.


 


18.   Defaults and Remedies.  Subject to certain restrictions, if an Event
of Default (other than an Event of Default specified in clause (6) of Section
6.1 of the Indenture with respect to the Company) occurs and is continuing, the
Trustee or the Holders of at least 25% in aggregate principal amount of the
then outstanding Notes may declare all the Notes to be due and payable
immediately in the manner and with the effect provided in the Indenture.  Holders of Notes may not enforce the
Indenture, the Notes, or the Guarantees except as provided in the Indenture.  The Trustee is not obligated to enforce the
Indenture, the Notes or the Guarantees unless it has received indemnity
satisfactory to it.  The Indenture
permits, subject to certain limitations therein provided, Holders of a majority
in aggregate principal amount of the Notes then outstanding to direct the
Trustee in its exercise of any trust or power. 
The Trustee may withhold from Holders of Notes notice of any continuing
Default or Event of Default (except a Default in payment of principal, premium,
if any, interest, and Additional Amounts, if any, including an accelerated
payment) if it determines that withholding notice is in their interest.


 


19.   Trustee Dealings with Company.  The Trustee under the Indenture, in its
individual or any other capacity, may become the owner or pledgee of Notes and
may otherwise deal with the Company, its Subsidiaries or their respective
Affiliates as if it were not the Trustee or an Agent.


 


20.   No Recourse Against Others.  No director, officer, employee, incorporator
or stockholder of the Company and no director, officer, employee or
incorporator of any Guarantor shall have any liability for any obligations of
the Company or any Guarantor under the Notes, the Guarantees or the Indenture
or for any claim based on, in respect of, or by reason of, such obligations or
their creation.  Each Holder of Notes by
accepting a Note waives and releases all such liability.  The waiver and release are part of the
consideration for issuance of the Notes.


 


21.   Authentication.  This Note shall not be valid until the
Trustee or authenticating agent signs the certificate of authentication on this
Note.


 


22.   Abbreviations and Defined Terms.  Customary abbreviations may be used in the
name of a Holder of a Note or an assignee, such as: TEN COM (= tenants in
common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with
right of survivorship and not as tenants in common), CUST (= Custodian), and
U/G/M/A (= Uniform Gifts to Minors Act).


 


A-11

















 


23.   CUSIP, ISIN and Common Code Numbers.  The Company may cause CUSIP, ISIN and Common
Code numbers to be printed on the Notes as a convenience to the Holders of the
Notes.  No representation is made as to
the accuracy of such numbers as printed on the Notes and reliance may be placed
only on the other identification numbers printed hereon.


 


24.   Governing Law.  The
Indenture and this Note, and the rights and duties of the parties hereunder and
thereunder, shall be governed by, and construed in accordance with, the laws of
the State of New York.


 


A-12

















 


SCHEDULE A


 


SCHEDULE OF PRINCIPAL AMOUNT


 


The initial principal amount at maturity of this Note shall be €                     .  The following decreases/increases in the
principal amount at maturity of this Note have been made:


 


	
  Date of

  Decrease/

  Increase

  	
   

  	
  Decrease in

  Principal

  Amount at

  Maturity

  	
   

  	
  Increase in

  Principal

  Amount at

  Maturity

  	
   

  	
  Total Principal

  Amount at

  Maturity

  Following such

  Decrease/

  Increase

  	
   

  	
  Notation Made

  by or on

  Behalf of

  Trustee

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


A-13

















 


OPTION OF HOLDER TO ELECT PURCHASE


 


If you want to
elect to have this Note purchased by the Company pursuant to Section 4.6 or
Section 4.15 of the Indenture, check the appropriate box:


 


	
  Section 4.6
  [      ]

  	
  Section 4.15
  [      ]

  



 


If you want to
elect to have only part of this Note purchased by the Company pursuant to
Section 4.6 or Section 4.15 of the Indenture, state the amount in numbers and
words: €


 


	
  Date:

  	
   

  	
   

  
	
   

  
	
   

  
	
  Your
  Signature:

  	
   

  	
   

  
	
  (Sign
  exactly as your name appears on the other side of this Note)

  
	
   

  
	
   

  
	
  Signature
  Guarantee:

  	
   

  	
   

  
	
  Participant
  in a recognized Signature Guarantee Medallion Program (or other signature
  guarantor program reasonably acceptable to the Trustee)

  
							



 


A-14

















 


EXHIBIT B


TO THE INDENTURE


 


[FORM OF FACE OF INITIAL DEFINITIVE NOTE]


 


THIS NOTE IS A
DEFINITIVE NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO.


 


THIS NOTE OF
WATERFORD WEDGWOOD PLC HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE “U.S. SECURITIES ACT”), OR ANY OTHER SECURITIES LAWS OF
ANY STATE OR OTHER JURISDICTION. 
NEITHER THIS NOTE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED
OF IN THE ABSENCE OF SUCH REGISTRATION UNLESS THE TRANSACTION IS EXEMPT FROM,
OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE U.S. SECURITIES ACT.


 


THE HOLDER OF
THIS NOTE BY ITS ACCEPTANCE HEREOF (1) AGREES THAT IT WILL NOT PRIOR TO (X) THE
DATE WHICH IS TWO YEARS (OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE
144(k) UNDER THE U.S. SECURITIES ACT OR ANY SUCCESSOR PROVISION THEREUNDER)
AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF (OR OF ANY PREDECESSOR OF
THIS NOTE) OR THE LAST DAY ON WHICH WATERFORD WEDGWOOD PLC OR ANY AFFILIATE OF
WATERFORD WEDGWOOD PLC WAS THE OWNER OF THIS NOTE (OR ANY PREDECESSOR OF THIS
NOTE) AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW
(THE “RESALE RESTRICTION TERMINATION DATE”), OFFER, SELL OR OTHERWISE TRANSFER
THIS NOTE EXCEPT (A) TO WATERFORD WEDGWOOD PLC, (B) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE U.S. SECURITIES ACT, (C)
FOR SO LONG AS THIS NOTE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
U.S. SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED
INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE U.S. SECURITIES ACT THAT
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A UNDER THE U.S. SECURITIES ACT, (D) PURSUANT TO OFFERS AND SALES TO
NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF
REGULATION S UNDER THE U.S. SECURITIES ACT OR (E) PURSUANT TO ANY OTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE U.S SECURITIES
ACT, AND (2) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS NOTE IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND; PROVIDED THAT
WATERFORD WEDGWOOD PLC, THE TRUSTEE AND THE REGISTRAR SHALL HAVE THE RIGHT
PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D) PRIOR TO THE
END OF THE 40-DAY DISTRIBUTION COMPLIANCE PERIOD WITHIN THE MEANING OF
REGULATION S UNDER THE U.S. SECURITIES ACT OR PURSUANT TO CLAUSE (E) PRIOR TO
THE RESALE RESTRICTION TERMINATION DATE TO REQUIRE THAT AN


 


B-1

















 


OPINION OF COUNSEL,
CERTIFICATIONS AND/OR OTHER INFORMATION SATISFACTORY TO WATERFORD WEDGWOOD PLC,
THE TRUSTEE AND THE REGISTRAR IS COMPLETED AND DELIVERED BY THE
TRANSFEROR.  THIS LEGEND WILL BE REMOVED
UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION
DATE.  AS USED HEREIN, THE TERMS
“OFFSHORE TRANSACTION”, “UNITED STATES” AND “U.S. PERSON” HAVE THE MEANINGS
GIVEN TO THEM BY REGULATIONS UNDER THE U.S. SECURITIES ACT.


 


B-2

















 


WATERFORD WEDGWOOD PLC


 


97/8% Mezzanine Note
due 2010


 


	
  [Common Code
  No.:                  ](1)

  
	
   

  
	
  [ISIN No.:                 ](1)

  
	
   

  
	
  [CUSIP
  No.:                ](1)

  



 


No.                


 


WATERFORD
WEDGWOOD PLC, a public limited company incorporated under the laws of Ireland
and having its registered office at Kilbarry, Waterford, Ireland (the
“Company,” which term includes any successor corporation), for value received
promises to pay to
                                         [name
of registered owner] the principal sum of €[amount in numbers] ([amount
in words] euro), on December 1, 2010.


 


Interest Payment Dates: June
1 and December 1 of each year, commencing June 1, 2004.


 


Record Dates:  15 calendar days prior to each Interest
Payment Date.


 


Reference is made to the
further provisions of this Note contained herein, which will for all purposes
have the same effect as if set forth at this place.


 


 












(1) 
Insert as applicable.


 


B-3

















 


IN WITNESS
WHEREOF, the Company has caused this Note to be signed manually or by facsimile
by its duly authorized officer.


 


 


	
   

  	
  WATERFORD
  WEDGWOOD PLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


This is one of the Notes
referred to in the within-mentioned Indenture:


 


	
  THE BANK OF
  NEW YORK, LONDON, as Trustee

  
	
   

  
	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  
	
   

  
	
  Dated:

  	
   

  	
   

  
				



 


B-4

















 


[FORM OF REVERSE]


 


WATERFORD WEDGWOOD PLC


 


97/8% Mezzanine Note
due 2010


 


 


1.     Interest.  WATERFORD WEDGWOOD PLC, a public limited
company incorporated under the laws of Ireland and having its registered office
at Kilbarry, Waterford, Ireland (the “Company”), promises to pay interest on
the principal amount of this Note at the rate and in the manner specified
below.  Interest on the Notes will
accrue at 97/8%
per annum on the principal amount then outstanding, and be payable
semi-annually in arrears on each June 1 and December 1, or if any such day is
not a Business Day, on the next succeeding Business Day, commencing June 1,
2004, to the Holder hereof.  Interest on
the Notes will accrue from the most recent date to which interest has been paid
or, if no interest has been paid, from December 1, 2003.  Interest will be computed on the basis of a
360-day year of twelve 30-day months.


 


The Company
shall (to the extent permitted by law) pay interest on overdue principal and on
overdue installments of interest (without regard to any applicable grace
periods), and on any overdue Additional Amounts, from time to time at the rate
borne by the Notes.  Any interest paid
on this Note shall be increased to the extent necessary to pay Additional
Amounts as set forth in the Indenture and herein.


 


2.   Additional Amounts.  All payments made by the Company, the
Guarantors or a successor of either (a “Payor”) on the Notes and under the
Guarantees will be made without withholding or deduction for, or on account of,
any present or future taxes, duties, assessments or governmental charges of
whatever nature (“Taxes”) imposed or levied by or on behalf of:


 


(1)  Luxembourg, the United States, Ireland or
any political subdivision or governmental authority of any thereof or therein
having power to tax,


 


(2)  any jurisdiction from or through which
payment on the Notes or any Guarantee is made, or any political subdivision or
governmental authority thereof or therein having the power to tax, or


 


(3)  any other jurisdiction in which the Payor is
organized or otherwise considered to be a resident for tax purposes, or any
political subdivision or governmental authority thereof or therein having the
power to tax (each of this Section 2 (1), (2) and (3), a “Relevant Taxing Jurisdiction”)


 


unless the withholding or
deduction of such Taxes is then required by law.  If any deduction or withholding for, or on account of, any Taxes
of any Relevant Taxing Jurisdiction will at any time be required from any
payments made with respect to the Notes or under the Guarantees, including
payments of principal, redemption price, interest or premium, if any, the Payor
will pay (together with such payments) such additional amounts (the “Additional Amounts”) as may be necessary
in order that the net amounts received in respect of such payments by the
Holders of the Notes or the Trustee, as the case may be, after such withholding
or deduction (including any such


 


B-5

















 


deduction or withholding from
such Additional Amounts), equal the amounts which would have been received in
respect of such payments on the Notes in the absence of such withholding or
deduction; provided, however,
that no such Additional Amounts will be payable with respect to:


 


(1)     any payments to a Holder
or beneficial owner who is liable for such Taxes in respect of such Note by
reason of the Holder’s or beneficial owner’s having any present or former connection
with the Relevant Taxing Jurisdiction (including being a citizen or resident or
national of, or carrying on a business or maintaining a permanent establishment
in, or being physically present in, the Relevant Taxing Jurisdiction) other
than by the mere holding of such Note or enforcement of rights thereunder or
the receipt of payments in respect thereof;


 


(2)     any Taxes that are
imposed or withheld where such withholding or imposition is by reason of the
failure of the Holder or beneficial owner of the Note to comply with any
reasonable and timely request by the Payor to provide information concerning
the nationality, residence or identity of such Holder or beneficial owner or to
make any declaration or similar claim or satisfy any certification, information
or other reporting requirement relating to such matters, which is required or
imposed by a statute, treaty, regulation, protocol, or administrative practice
of the Relevant Taxing Jurisdiction as a precondition to exemption from all or
part of such Taxes;


 


(3)     except in the case of
the winding up of the Payor, any Note presented for payment (where presentation
is required) in the Relevant Taxing Jurisdiction (unless by reason of the
Payor’s actions, presentment could not have been made elsewhere and except to
the extent that the Holder would have been entitled to Additional Amounts had
the Notes been presented elsewhere);


 


(4)     any Note presented for
payment (where presentation is required) more than 30 days after the relevant
payment is first made available for payment to the Holder (except to the extent
that the Holder would have been entitled to Additional Amounts had the Note
been presented during such 30 day period);


 


(5)     any Taxes that are
payable otherwise than by withholding from a payment of the principal of,
premium, if any, or interest, on the Notes or any Guarantee;


 


(6)                                  any
estate, inheritance, gift, sale, transfer, personal property or similar tax,
assessment or other governmental charge;


 


(7)     any Taxes imposed on a
payment to an individual and required to be made pursuant to any European Union
Directive (a “Directive”) on the taxation of savings implementing the
conclusions of the ECOFIN Council meeting of June 3, 2003 or any law
implementing or complying with, or introduced in order to conform to, such
Directive; or


 


(8)     any Taxes imposed in
connection with a Note presented for payment by or on behalf of a Holder or
beneficial owner who would have been able to avoid such Tax by presenting the
relevant Note to another paying agent in a member state of the European Union.


 


B-6

















 


Such Additional Amounts will
also not be payable where, had the beneficial owner of the Note been the Holder
of this Note, it would not have been entitled to payment of Additional Amounts
by reason of any of clauses (1) to (8) inclusive above.


 


3.     Method of Payment.  The Company shall pay interest on this Note
to the registered Holder hereof.  The
Company shall pay all amounts owing hereunder in euro.  Immediately available funds for the payment
of the principal of (and premium, if any), interest, and Additional Amounts, if
any, on this Note due on any interest payment date, Maturity Date, Redemption
Date or other repurchase date will be made available to the Paying Agent to
permit the Paying Agent to pay such funds to the Holders on such respective
dates.


 


4.     Paying Agent and Registrar.  Initially, The Bank of New York, London will
act as Principal Paying Agent and Registrar. 
In addition, Kredietbank S.A. Luxembourgeoise will act as Luxembourg
Paying Agent.  In the event that a
Paying Agent or transfer agent is replaced, the Company will provide notice
thereof as set forth in the Indenture. 
The Company or any of its Subsidiaries may, subject to certain
exceptions, act in any such capacity.


 


5.     Indenture.  The Company issued the Notes under an
indenture, dated as of December 1, 2003 (the “Indenture”), among the Company,
The Bank of New York, London, as Trustee, Registrar, Principal Paying Agent and
transfer agent (the “Trustee”), and Kredietbank S.A. Luxembourgeoise, as
Luxembourg Paying Agent and transfer agent. 
This Note is one of a duly authorized issue of Notes (as defined in the
Indenture) of the Company designated as its 
97/8  % Mezzanine
Notes due 2010 (the “Notes”).  The Notes
include the Initial Notes and Additional Notes, if any.  The terms of the Notes include those stated
in the Indenture.  Notwithstanding
anything to the contrary herein, the Notes are subject to all such terms, and
Holders of Notes are referred to the Indenture.  The Notes are general obligations of the Company.  The Notes are not limited in aggregate
principal amount and Additional Notes (as defined in the Indenture) may be
issued from time to time under the Indenture, in each case subject to the terms
of the Indenture; provided that
the aggregate principal amount of Initial Notes that will be issued on the
Issue Date will not exceed €166,028,000
(one hundred sixty-six million twenty-eight thousand euro).  Each Holder, by accepting a Note, agrees to
be bound by all of the terms and provisions of the Indenture, as the same may
be amended from time to time. 
Capitalized terms used but not otherwise defined herein shall have the
meanings assigned them in the Indenture.


 


6.     Guarantees.  Each of the Guarantors has guaranteed
pursuant to the terms of the Indenture the full and punctual payment of the
principal of, premium, if any, interest, and Additional Amounts, if any, on the
Notes and all other payment obligations of the Company under the Indenture when
and as the same shall be due and payable, whether at maturity, by acceleration
or otherwise, according to the terms of the Indenture.  In addition, the Company may from time to
time designate Additional Guarantors to provide Additional Guarantees in favor
of the Notes.  The guarantees given by
the Guarantors or any Additional Guarantor are subject to release in the
circumstances described in the Indenture.


 


7.     Special Mandatory Redemption; Notice.  If the Release has not occurred on or before
5:00 p.m., London time, on the Deadline, then the Company will, on a day not
more than 10 Business Days following the Deadline (such date, the “Special
Mandatory Redemption Date”), redeem all of the Notes (the “Special Mandatory
Redemption”) at a price equal to the


 


B-7

















 


issue price of the Notes (being
99.381% of the principal amount of the Notes) plus accrued and unpaid interest
from the Issue Date of the Notes, (the “Special Mandatory Redemption
Price”).  Notice of the Special
Mandatory Redemption will be mailed promptly to each Holder of Notes (in the
case of Definitive Notes, at the registered addresses of the Holders), the
Trustee and the Escrow Agent.  Upon
receipt of the notice of Special Mandatory Redemption, the Escrow Agent will
liquidate all Escrowed Property held by it no later than the Business Day prior
to the Special Mandatory Redemption Date. 
On the Special Mandatory Redemption Date, the Escrow Agent shall pay to
a paying agent for payment to each Holder of Notes the Special Mandatory
Redemption Price for such Holder’s Notes and, concurrently with the payment to
such Holders, deliver any excess Escrowed Property to the Company.


 


8.     Optional Redemption.  The Notes will be redeemable, at the
Company’s option, in whole or in part, on and after December 1, 2006, upon not
less than 30 nor more than 60 days’ prior notice at the redemption prices
(expressed as a percentage of principal amount) set forth below, plus accrued
and unpaid interest, if any, and Additional Amounts, if any (each, a
“Redemption Price”), to the date fixed by the Company for redemption (a
“Redemption Date”), if redeemed during the twelve-month period beginning on
December 1 of each of the years indicated below:


 


	
  Year

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2006

  	
   

  	
  109.875

  	
  %

  
	
  2007

  	
   

  	
  104.938

  	
  %

  
	
  2008

  	
   

  	
  102.469

  	
  %

  
	
  2009 and thereafter

  	
   

  	
  100.000

  	
  %

  



 


In the event
that the Company effects an optional redemption of the Notes, the Company will
inform the Luxembourg Stock Exchange of such optional redemption and confirm
the aggregate principal amount of the Notes that will remain outstanding
following such redemption.


 


In addition,
at any time, or from time to time, on or prior to December 1, 2006, the Company
may on any one or more occasions, at its option, redeem up to 35% of the
aggregate principal amount of the Notes issued under the Indenture with funds
in an aggregate amount (the “Redemption Amount”) not exceeding the aggregate
net cash proceeds of one or more Public Equity Offerings at a redemption price
of 109.875% of the principal amount thereof, plus in each case accrued and
unpaid interest, if any, and Additional Amounts, if any (each, a “Redemption
Price”), to the date fixed by the Company for redemption (a “Redemption Date”);
provided that (i) at least 65% of
the aggregate principal amount of the Notes issued under the Indenture remain
outstanding after the occurrence of any and each such redemption and (ii) the
redemption must occur within 90 days of the date of the closing of such Public
Equity Offering.  Any redemption notice
given in respect of the redemption referred to in this paragraph may be given
prior to completion of the related Public Equity Offering, and any such
redemption or notice may, at the Company’s discretion, be subject to the
satisfaction of one or more conditions precedent, including but not limited to
the completion of the related Public Equity Offering.


 


B-8

















 


9.     Special Tax Redemption.  The Company may, at its option, redeem the
Notes in whole, but not in part, at any time upon giving not less than 30 nor
more than 60 days’ notice to the Holders of the Notes (which notice will be irrevocable)
at a redemption price equal to 100% of the principal amount thereof, together
with accrued and unpaid interest, if any, to the date fixed for redemption (a
“Tax Redemption Date”), and all Additional Amounts, if any, then due and which
will become due on the Tax Redemption Date as a result of the redemption or
otherwise, if any, if the Company determines that, as a result of: (1) any
change in, or amendment to, the law or treaties (or any regulations or rulings
promulgated thereunder) of a Relevant Taxing Jurisdiction (as defined above)
affecting taxation; or (2) any change in position regarding the application,
administration or interpretation of such laws, treaties, regulations or rulings
(including a holding, judgment or order by a court of competent jurisdiction),
(each of the foregoing in clauses (1) and (2), a “Change in Tax Law”), the
Company is, or on the next interest payment date in respect of the Notes would
be, required to pay any Additional Amounts, and the Company cannot avoid such obligation
by taking reasonable measures available to it. 
In the case of the Company, the Change in Tax Law must become effective
on or after November 27, 2003.  In the
case of a Successor Company, the Change in Tax Law must become effective after
the date that such entity first makes payment on the Notes.  Notice of redemption for taxation reasons
will be published in accordance with the procedures in the Indenture.  Notwithstanding the foregoing, no such
notice of redemption will be given earlier than 90 days prior to the earliest
date on which the Company would be obliged to make such payment or withholding
if a payment in respect of such Notes were then due.  Prior to the publication or mailing of any notice of redemption
of any Notes pursuant to the foregoing, the Company will deliver to the Trustee
an opinion of an independent tax counsel reasonably satisfactory to the Trustee
to the effect that the circumstances referred to above exist and the Trustee
shall be entitled to accept such opinion as sufficient evidence of the
satisfaction of the conditions referred to above, in which event it will be
conclusive and binding on all present and future Holders of Notes.


 


10.     Selection and Notice of Redemption.  In the event that the Company chooses to
redeem less than all of the Notes, selection of the Notes for redemption will
be made by the Trustee in compliance with the requirements of the principal
national securities exchange, if any, on which the Notes are listed as notified
by the Company to the Trustee and/or in compliance with the requirements of
each relevant Clearing Agency or if such Notes are not so listed or such
exchange prescribes no method of selection and the Notes are not held through a
Clearing Agency or such Clearing Agency prescribes no method of selection, on a
pro rata basis, by lot or by such
method as the Trustee shall deem fair and appropriate.


 


No Notes of a
principal amount of €1,000 or less shall be redeemed in part.  Notice of redemption will be mailed by
first-class mail at least 30 but not more than 60 days before the redemption
date to each Holder of Notes to be redeemed at its registered address.  If any Note is to be redeemed in part only,
then the notice of redemption that relates to such Note must state the portion
of the principal amount thereof to be redeemed.  A new Note in a principal amount equal to the unredeemed portion
thereof will be issued in the name of the Holder thereof upon cancellation of
the original Note.  On and after the
redemption date, interest will cease to accrue on Notes or portions thereof
called for redemption as long as the Company has deposited with the Paying
Agent funds in satisfaction of the applicable redemption price.


 


B-9

















 


If and for so long as the
Notes are listed on the Luxembourg Stock Exchange and the rules of such
exchange so require, the Company shall publish notice of redemption in Luxembourg
in a daily newspaper with general circulation in Luxembourg (which is expected
to be the Luxemburger Wort).


 


11.     Denominations; Form.  The Definitive Notes are in registered form,
without coupons, in denominations of €1,000 and integral multiples of €1,000.


 


12.     Persons Deemed Owners.  The registered Holder (as reflected on the
records of the Registrar) of this Note shall be treated as the owner of this
Note for all purposes, subject to the terms of the Indenture.


 


13.     Unclaimed Funds.  If funds for the payment of principal,
interest, premium, if any, or Additional Amounts, if any, remain unclaimed for
two years, the Trustee and the Paying Agents will repay the funds to the
Company at its written request.  After
that, all liability of the Trustee and such Paying Agents with respect to such
funds shall cease.


 


14.     Legal Defeasance and Covenant
Defeasance.  The Company and the
Guarantors may be discharged from their respective obligations under the
Indenture, the Notes and the Guarantees except for certain provisions thereof,
and may be discharged from their respective obligations to comply with certain
covenants contained in the Indenture, in each case upon satisfaction of certain
conditions specified in the Indenture.


 


15.     Amendment; Supplement; Waiver.  Subject to certain exceptions specified in
the Indenture, the Indenture (including any supplemental indenture), the Notes
or the Guarantees may be amended or supplemented with the written consent of
the Holders of at least a majority in aggregate principal amount of the Notes
then outstanding, and any existing Default or Event of Default or compliance
with any provision of the Indenture or the Notes may be waived with the consent
of the Holders of a majority in aggregate principal amount of the Notes then
outstanding.


 


16.     Restrictive Covenants.  The Indenture imposes certain covenants
that, among other things, limit the ability of the Company and its Restricted
Subsidiaries to incur additional Indebtedness, pay dividends or make other
distributions or investments, repurchase Capital Stock of the Company or make
certain other Restricted Payments, enter into certain consolidations or mergers
or enter into certain transactions with Affiliates and consummate certain
mergers and consolidations or sales of all or substantially all assets.  The limitations are subject to a number of
important qualifications and exceptions.


 


17.     Successors.  When a successor assumes all the obligations
of its predecessor under the Notes, the Indenture and/or any Guarantee in
accordance with the terms of the Indenture, the predecessor will be released
from those obligations.


 


18.     Defaults and Remedies.  Subject to certain restrictions, if an Event
of Default (other than an Event of Default specified in clause (6) of Section
6.1 of the Indenture with respect to the Company) occurs and is continuing, the
Trustee or the Holders of at least 25% in aggregate principal amount of the
then outstanding Notes may declare all the Notes to be due and payable
immediately in the manner and with the effect provided in the Indenture.  Holders of


 


B-10

















 


Notes may not enforce the Indenture,
the Notes, or the Guarantees except as provided in the Indenture.  The Trustee is not obligated to enforce the
Indenture, the Notes or the Guarantees unless it has received indemnity
satisfactory to it.  The Indenture
permits, subject to certain limitations therein provided, Holders of a majority
in aggregate principal amount of the Notes then outstanding to direct the
Trustee in its exercise of any trust or power. 
The Trustee may withhold from Holders of Notes notice of any continuing
Default or Event of Default (except a Default in payment of principal, premium,
if any, interest, and Additional Amounts, if any, including an accelerated
payment) if it determines that withholding notice is in their interest.


 


19.     Trustee Dealings with Company.  The Trustee under the Indenture, in its
individual or any other capacity, may become the owner or pledgee of Notes and
may otherwise deal with the Company, its Subsidiaries or their respective
Affiliates as if it were not the Trustee or an Agent.


 


20.     No
Recourse Against Others.  No
director, officer, employee, incorporator or stockholder of the Company and no
director, officer, employee or incorporator of any Guarantor shall have any
liability for any obligations of the Company or any Guarantor under the Notes,
the Guarantees or the Indenture or for any claim based on, in respect of, or by
reason of, such obligations or their creation. 
Each Holder of Notes by accepting a Note waives and releases all such
liability.  The waiver and release are
part of the consideration for issuance of the Notes.


 


21.     Authentication.  This Note shall not be valid until the
Trustee or authenticating agent signs the certificate of authentication on this
Note.


 


22.     Abbreviations and Defined Terms.  Customary abbreviations may be used in the
name of a Holder of a Note or an assignee, such as: TEN COM (= tenants in
common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with
right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A
(= Uniform Gifts to Minors Act).


 


23.     CUSIP, ISIN and Common Code Numbers.  The Company may cause CUSIP, ISIN and Common
Code numbers to be printed on the Notes as a convenience to the Holders of the
Notes.  No representation is made as to
the accuracy of such numbers as printed on the Notes and reliance may be placed
only on the other identification numbers printed hereon.


 


24.     Governing Law.  The
Indenture and this Note, and the rights and duties of the parties hereunder and
thereunder, shall be governed by, and construed in accordance with, the laws of
the State of New York.


 


B-11

















 


ASSIGNMENT FORM


 


To assign this Note fill in the
form below:


 


I or we assign and transfer
this Note to


 


(Print or type
assignee’s name, address and zip code)


 


(Insert
assignee’s social security or tax I.D. No., if any, or other appropriate
identifying information)


 


and irrevocably
appoint                                 agent
to transfer this Note on the books of the Company.


 


 


The agent may substitute
another to act for him.


 


	
   

  	
   

  
	
   

  
	
  Date:

  	
   

  	
   

  	
  Your
  Signature:

  	
   

  	
   

  
	
   

  
	
   

  	
   

  
	
  Sign exactly
  as your name appears on the other side of this Note.

  	
   

  
							



 


B-12

















 


OPTION OF HOLDER TO ELECT PURCHASE


 


 


If you want to
elect to have this Note purchased by the Company pursuant to Section 4.6 or
Section 4.15 of the Indenture, check the appropriate box:


 


Section 4.6
[     ]       Section
4.15 [     ]


 


If you want to
elect to have only part of this Note purchased by the Company pursuant to
Section 4.6 or Section 4.15 of the Indenture, state the amount in numbers and
words:


€                                  (                         ).


 


	
  Date:

  	
   

  	
   

  
	
   

  
	
   

  
	
  Your
  Signature:

  	
   

  	
   

  
	
  (Sign
  exactly as your name appears on the other side of this Note)

  
	
   

  
	
   

  
	
  Signature
  Guarantee:

  	
   

  	
   

  
							



Participant in a recognized
Signature Guarantee Medallion Program (or other signature guarantor program
reasonably acceptable to the Trustee)


 


B-13

















 


EXHIBIT C


TO THE INDENTURE


 


FORM OF TRANSFER CERTIFICATE FOR TRANSFER FROM

RULE 144A GLOBAL NOTE TO REGULATION S GLOBAL NOTE


(Transfers pursuant to Section 2.7(b) of the Indenture)


 


 


The Bank of New York, as
Book-Entry Depositary


Attention:  Corporate Trust Office


[Address]


 


 


Re:                               97/8  %
Mezzanine Notes due 2010 (the “Notes”) of Waterfird Wedgwood plc (the
“Company”)


 


Reference is
hereby made to the Indenture dated as of December 1, 2003 (the “Indenture”)
among the Company, the Guarantors, The Bank of New York London, as trustee,
Kredietbank S.A. Luxembourgeoise, and the other entities party thereto from
time to time as Additional Guarantors. 
Capitalized terms used but not defined herein shall have the meanings
given to them in the Indenture.  Terms
used in this certificate and not otherwise defined in the Indenture have the
meanings set forth in Regulation S under the Securities Act.


 


This letter
relates to
€                   (being
any integral multiple of €1,000) principal amount of Notes which are evidenced
by Rule 144A Global Notes [(CUSIP No. *; ISIN No.*; Common Code No. *)] and
held by you, a Depositary Interest in which is held by the Common Depositary
who in turn is holding an interest in such Depositary Interest on behalf of the
undersigned (the “Transferor”).  The
Transferor hereby requests that on [INSERT DATE] such beneficial interest in
the Rule 144A Global Note be transferred or exchanged for an interest in the
Regulation S Global Note [(CUSIP No. * ; ISIN No. *; Common Code No. *)] in the
form of an equal aggregate principal amount of Notes.  If this is a partial transfer, a minimum amount of €1,000 and any
integral multiple of €1,000 in excess thereof of the Rule 144A Global Note will
remain outstanding.


 


In connection
with such request and in respect of such Notes, the Transferor does hereby
certify that such transfer has been effected in accordance with the transfer
restrictions set forth in the Indenture and the Notes and pursuant to and in
accordance with Rule 903 or 904 of Regulation S under the Securities Act, and
accordingly the Transferor further certifies that:


 


(A)                              (1)  the offer of the Notes was not made to a
person in the United States;


 


(2)  either (a) at the time the buy order was
originated, the transferee was outside the United States or we and any person
acting on our behalf reasonably believed that the transferee was outside the
United States or (b) the transaction was executed


 


C-1

















 


in, on or
through the facilities of a designated offshore securities market and neither
we nor any person acting on our behalf knows that the transaction was prearranged
with a buyer in the United States,


 


(3)  no directed selling efforts have been made
in contravention of the requirements of Rule 903(b) or 904(b) of Regulation S,
as applicable; and


 


(4)  the transaction is not part of a plan or
scheme to evade the registration requirements of the Securities Act.


 


OR


 


(B)                                such
transfer is being made in accordance with Rule 144 under the Securities Act.


 


C-2

















 


This
certificate and the statements contained herein are made for your benefit and
the benefit of the Company, the Guarantors, any Additional Guarantor, the
Initial Purchasers and the Trustee.


 


	
  Dated:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [Name of
  Transferor]*

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  	
  Telephone
  No.:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Please print
  name and address (including zip code number)

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
						



 












*Note: Name of Transferor must
exactly match name in which the applicable Depositary Interest is held.


 


C-3

















 


EXHIBIT D


TO THE INDENTURE


 


FORM OF TRANSFER CERTIFICATE FOR TRANSFER FROM

REGULATION S GLOBAL NOTE TO RULE 144A GLOBAL NOTE

(Transfers pursuant to Section 2.7(c) of the Indenture)


 


 


The Bank of New York, as
Book-Entry Depositary


Attention: Corporate Trust
Office


[Address]


 


Re:                               97/8%
Mezzanine Notes due 2010 (the “Notes”) of Waterford Wedgwood plc (the
“Company”)


 


Reference is
hereby made to the Indenture dated as of December 1, 2003 (the “Indenture”)
among the Company, the Guarantors, The Bank of New York London, as trustee,
Kredietbank S.A. Luxembourgeoise, and the other entities party thereto from
time to time as Additional Guarantors. 
Capitalized terms used but not defined herein shall have the meanings
given to them in the Indenture.  Terms
used in this certificate and not otherwise defined in the Indenture have the
meanings set forth in Regulation S under the Securities Act.


 


This letter
relates to
€                    (being
any integral multiple of €1,000) principal amount of Notes which are evidenced
by Regulation S Global Notes [(CUSIP No. * ; ISIN No.*; Common Code No. *)] and
held by you, a Depositary Interest in which is held by the Common Depositary
who in turn is holding an interest in such Depositary Interest on behalf of the
undersigned (the “Transferor”).  The
Transferor hereby requests that on 
[INSERT DATE] such beneficial interest in the Regulation S Global Note
be transferred or exchanged for an interest in the Rule 144A Global Note
[(CUSIP No. * ; ISIN No. *; Common Code No. *)] in the form of an equal
aggregate principal amount of Notes.  If
this is a partial transfer, a minimum amount of €1,000 and any integral
multiple of €1,000 in excess thereof of the Regulation S Global Note will
remain outstanding.


 


In connection
with such request, and in respect of such Notes, the Transferor does hereby
certify that such Notes are being transferred in accordance with Rule 144A
under the Securities Act to a transferee that the Transferor reasonably
believes is purchasing the Notes for its own account or an account with respect
to which the transferee exercises sole investment discretion and the transferee
and any such account is a “qualified institutional buyer” within the meaning of
Rule 144A, in each case in a transaction meeting the requirements of Rule 144A
and in accordance with any applicable securities laws of any state of the
United States or any other jurisdiction.


 


D-1

















 


This
certificate and the statements contained herein are made for your benefit and
the benefit of the Company, the Guarantors, any Additional Guarantor, the
Initial Purchasers and the Trustee.


 


	
  Dated:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [Name of
  Transferor]*

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  	
  Telephone
  No.:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Please print
  name and address (including zip code number)

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
						



 












*Note: Name of Transferor must
exactly match name in which the applicable Depositary Interest is held.


 


D-2

















 


EXHIBIT E


TO THE INDENTURE


 


FORM OF SUPPLEMENTAL INDENTURE


 


This
Supplemental Indenture, dated as of [                       ]
(this “Supplemental Indenture” or “Additional Guarantee”), among [name of
Additional Guarantor] (the “Additional Guarantor”), Waterford Wedgwood plc (the
“Company”), the Guarantors, each other then existing Additional Guarantor under
the Indenture referred to below, The Bank of New York, London, as Trustee under
the Indenture referred to below, and the other parties hereto.


 


W I T N E S S E T H:


 


WHEREAS, the
Company, the Guarantors, the Trustee and the other parties thereto have heretofore
executed and delivered an Indenture, dated as of December 1, 2003 (as amended,
supplemented, waived or otherwise modified, the “Indenture”), providing for the
issuance of an initial aggregate principal amount of €166,028,000 million of 97/8%
Mezzanine Notes due 2010 of the Company as well as Additional Notes;


 


WHEREAS,
Section 11.1 of the Indenture provides that, subject to certain conditions and
exceptions, the Company may designate Restricted Subsidiaries to become
Additional Guarantors (as defined in the Indenture) by the execution and
delivery of a supplemental indenture providing for a guarantee of such
Restricted Subsidiary;


 


WHEREAS,
pursuant to Section 9.1 of the Indenture, the Company, any existing Guarantors
and the Trustee are authorized to execute and deliver this Supplemental
Indenture to amend the Indenture, without the consent of any Holder, to add
guarantees with respect to the Notes;


 


WHEREAS, the
Additional Guarantor is a Restricted Subsidiary of the Company;


 


WHEREAS, each
party hereto has duly authorized the execution and delivery of this
Supplemental Indenture and has done all things necessary to make this
Supplemental Indenture a valid agreement in accordance with its terms;


 


NOW, THEREFORE,
in consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the Additional
Guarantor, the Company, the Guarantors, any other Additional Guarantors, the
Trustee and the other parties to the Indenture mutually covenant and agree for
the equal and ratable benefit of the Holders of the Notes as follows:


 


E-1

















 


ARTICLE I


 


Definitions


 


SECTION
1.1.  Defined Terms.  As used in this Supplemental Indenture,
terms defined in the Indenture or in the preamble or recital thereto are used
herein as therein defined, except that the term “Holders” in this
Supplemental Indenture shall refer to the term “Holders” as defined in the
Indenture and the Trustee acting on behalf or for the benefit of such
holders.  The words “herein,” “hereof”
and “hereby” and other words of similar import used in this Supplemental
Indenture refer to this Supplemental Indenture as a whole and not to any
particular section hereof.


 


ARTICLE II


 


Agreement to be Bound; Guarantee


 


SECTION
2.1.   Agreement to be Bound.  The Additional Guarantor hereby becomes a
party to the Indenture as an Additional Guarantor and as such will have all of
the rights and be subject to all of the obligations and agreements of an
Additional Guarantor under the Indenture. 
The Additional Guarantor agrees to be bound by all of the provisions of
the Indenture applicable to an Additional Guarantor and to perform all of the
obligations and agreements of an Additional Guarantor under the Indenture.


 


SECTION
2.2.   Guarantee.  Subject to the terms of the Indenture
(including, without limitation, Articles XI and XII and Section 14.18 thereof),
the Additional Guarantor hereby fully, unconditionally and irrevocably guarantees,
as primary obligor and not merely as surety, jointly and severally with each
other Guarantor, to each Holder of the Notes and the Trustee, the full and
punctual payment when due, whether at maturity, by acceleration, by redemption
or otherwise, of the principal of, premium, if any, interest and Additional
Amounts, if any, on the Notes and all other payment obligations of the Company
under the Indenture.


 


ARTICLE III


 


Miscellaneous


 


SECTION 3.1.   Notices.  All notices and other communications to the
Additional Guarantor shall be given as provided in the Indenture to the
Additional Guarantor, at its address set forth below, with a copy to the
Company as provided in the Indenture for notices to the Company.


 


SECTION
3.2.   Parties.  Nothing expressed or mentioned herein is
intended or shall be construed to give any Person, firm or corporation, other
than the Holders and the Trustee, any legal or equitable right, remedy or claim
under or in respect of this Supplemental Indenture or the Indenture or any provision
herein or therein contained.


 


E-2

















 


SECTION 3.3.   Governing Law.  This
Supplemental Indenture shall be governed by, and construed in accordance with,
the laws of the State of New York.


 


SECTION 3.4.   Severability
Clause.  In case any one or more of
the provisions in this Supplemental Indenture shall be held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the
remaining provisions shall not in any way be affected or impaired thereby, it
being intended that all of the provisions hereof shall be enforceable to the
full extent permitted by law.


 


SECTION 3.5.   Ratification
of Indenture; Supplemental Indentures Part of Indenture.  Except as expressly amended hereby, the
Indenture is in all respects ratified and confirmed and all the terms,
conditions and provisions thereof shall remain in full force and effect.  This Supplemental Indenture shall form a
part of the Indenture for all purposes, and every Holder of Notes heretofore or
hereafter authenticated and delivered shall be bound hereby.  The Trustee makes no representation or
warranty as to the validity or sufficiency of this Supplemental Indenture.


 


SECTION 3.6.   Counterparts.  The parties hereto may sign one or more
copies of this Supplemental Indenture in counterparts, all of which together
shall constitute one and the same agreement.


 


SECTION 3.7.   Headings.  The headings of the Articles and the
sections in this Supplemental Indenture are for convenience of reference only
and shall not be deemed to alter or affect the meaning or interpretation of any
provisions hereof.


 


SECTION 3.8.   Successors.  All covenants and agreements in this Supplemental
Indenture by the parties hereto shall bind their successors and assigns,
whether so expressed or not.


 


E-3

















 


IN WITNESS
WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly
executed as of the date first above written.


 


	
   

  	
  [ADDITIONAL
  GUARANTOR],

  
	
   

  	
   

  
	
   

  	
  as an
  Additional Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  The Bank of
  New York, London, as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WATERFORD
  WEDGWOOD PLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WATERFORD
  WEDGWOOD U.K. PLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WATERFORD
  CRYSTAL LIMITED

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


E-4

















 


	
   

  	
  ALL-CLAD
  HOLDINGS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WATERFORD
  WEDGWOOD, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WATERFORD
  WEDGWOOD USA, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WEDGWOOD
  LIMITED

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WATERFORD
  CRYSTAL (MANUFACTURING) LTD

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


E-5

















 


	
   

  	
  WATERFORD
  WEDGWOOD GMBH

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  STATUM
  LIMITED

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WATERFORD
  WEDGWOOD RETAIL LIMITED

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  JOSIAH
  WEDGWOOD & SONS LIMITED

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WATERFORD
  WEDGWOOD JAPAN LIMITED

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WW INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


E-6

















 


	
   

  	
  WATERFORD
  WEDGWOOD FINANCE, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WATERFORD
  WEDGWOOD HOLDINGS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  STUART &
  SONS LIMITED

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  JOSIAH
  WEDGWOOD & SONS (EXPORTS) LIMITED

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ALL-CLAD
  METALCRAFTERS, L.L.C.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CLAD METALS
  L.L.C.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


E-7

















 


	
   

  	
  CLAD
  HOLDINGS CORP.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [Other
  Additional Guarantors]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [Other
  Parties to the Indenture]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


E-8