Indenture Of The Company To U.s. Bank Trust National Association, As Trustee

EXHIBIT 10.44


Acclaim Entertainment, Inc.


To


U.S. Bank Trust National Association,

as Trustee


Indenture


Dated February 17, 2004


Debt Securities


CROSS-REFERENCE SHEET

Certain Sections of this Indenture relating to Sections 310 through 318, inclusive, of the Trust Indenture Act of 1939:


Trust Indenture

Act Section

Indenture

Section

ss.310 (a)(1) 609

(a)(2) 609

(a)(3) Not Applicable

(a)(4) Not Applicable

(b) 608, 610

ss.311 (a) 613

(b) 613

ss.312 (a) 701, 702

(b) 702

(c) 702

ss.313 (a) 703

(b) 703

(c) 703

(d) 703

ss.314 (a) 704

(a)(4) 101, 1004

(b) 1006

(c)(1) 102

(c)(2) 102

(c)(3) Not Applicable

(d) 1501

(e) 102

ss.315 (a) 601

(b) 602

(c) 601

(d) 601

(e) 514

ss.316 (a) 101

(a)(1)(A) 502, 512

(a)(1)(B) 513

(a)(2) Not Applicable

(b) 508

(c) 104

ss.317 (a)(1) 503

(a)(2) 504

(b) 1003

ss.318 (a) 107


NOTE: This cross-reference sheet shall not, for any purpose, be deemed to be a part of the Indenture.


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Acclaim Entertainment, Inc.

To

U.S. Bank Trust National Association, as Trustee


Indenture

Debt Securities


TABLE OF CONTENTS

Page


Article One Definitions and Other Provisions of General Application 1

Section 101. Definitions 1

Section 102. Compliance Certificates and Opinions 8

Section 103. Form of Documents Delivered to Trustee 8

Section 104. Acts of Holders 9

Section 105. Notices, Etc. to Trustee and Company 11

Section 106. Notice to Holders; Waiver 11

Section 107. Conflict with Trust Indenture Act 12

Section 108. Effect of Headings and Table of Contents 12

Section 109. Successors and Assigns 12

Section 110. Separability Clause 12

Section 111. Benefits of Indenture 12

Section 112. Governing Law 12

Section 113. Legal Holidays 12

Section 114. Indenture and Securities Solely Corporate Obligations 12

Article Two Security Forms 13

Section 201. Forms Generally 13

Section 202. Form of Legend for Global Securities 13

Section 203. Form of Trustee's Certificate of Authentication 14

Section 204. Form of Conversion Notice 14

Article Three The Securities 14

Section 301. Amount Unlimited; Issuable in Series 14

Section 302. Denominations 17

Section 303. Execution, Authentication, Delivery and Dating 17

Section 304. Temporary Securities 18

Section 305. Registration; Registration of Transfer and Exchange 19

Section 306. Mutilated, Destroyed, Lost and Stolen Securities 20

Section 307. Payment of Interest; Interest Rights Preserved 21

Section 308. Persons Deemed Owners 22

Section 309. Cancellation 23

Section 310. Computation of Interest 23


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Article Four Satisfaction and Discharge 23

Section 401. Satisfaction and Discharge of Indenture 23

Section 402. Application of Trust Money 24

Article Five Remedies 24

Section 501. Events of Default 24

Section 502. Acceleration of Maturity; Rescission and Annulment 25

Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee 26

Section 504. Trustee May File Proofs of Claim 26

Section 505. Trustee May Enforce Claims without Possession of Securities 27

Section 506. Application of Money Collected 27

Section 507. Limitation on Suits 27

Section 508. Unconditional Right of Holders to Receive Principal, Premium and Interest and to Convert 28

Section 509. Restoration of Rights and Remedies 28

Section 510. Rights and Remedies Cumulative 28

Section 511. Delay or Omission not Waiver 29

Section 512. Control by Holders 29

Section 513. Waiver of Past Defaults 29

Section 514. Undertaking for Costs 30

Section 515. Waiver of Usury, Stay or Extension Laws 30

Article Six The Trustee 30

Section 601. Certain Duties and Responsibilities 30

Section 602. Notice of Defaults 30

Section 603. Certain Rights of Trustee 31

Section 604. Not Responsible for Recitals or Issuance of Securities 31

Section 605. May Hold Securities and Act as Trustee Under Other Indentures 32

Section 606. Money Held in Trust 32

Section 607. Compensation and Reimbursement 32

Section 608. Conflicting Interests 32

Section 609. Corporate Trustee Required; Eligibility 33

Section 610. Resignation and Removal; Appointment of Successor 33

Section 611. Acceptance of Appointment by Successor 34

Section 612. Merger, Conversion, Consolidation or Succession to Business 35

Section 613. Preferential Collection of Claims Against Company 35

Section 614. Appointment of Authenticating Agent 36


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Article Seven Holders' Lists and Reports by Trustee and Company 38

Section 701. Company to Furnish Trustee Names and Addresses of Holders 38

Section 702. Preservation of Information; Communications to Holders 38

Section 703. Reports by Trustee 38

Section 704. Reports by Company 39

Article Eight Consolidation, Merger, Conveyance, Transfer or Lease 39

Article Nine Supplemental Indentures 39

Section 901. Supplemental Indentures without Consent of Holders 39

Section 902. Supplemental Indentures with Consent of Holders 40

Section 903. Execution of Supplemental Indentures 41

Section 904. Effect of Supplemental Indentures 42

Section 905. Conformity with Trust Indenture Act 42

Section 906. Reference in Securities to Supplemental Indentures 42

Article Ten Covenants 42

Section 1001. Payment of Principal, Premium and Interest 42

Section 1002. Maintenance of Office or Agency 42

Section 1003. Money For Securities Payments to Be Held in Trust 43

Section 1004. Statement by Officers as to Default 44

Section 1005. Existence 44

Section 1006. Opinions as to Pledged Property 44

Section 1007. Waiver of Certain Covenants 45

Article Eleven Redemption of Securities 45

Section 1101. Applicability of Article 45

Section 1102. Election to Redeem; Notice to Trustee 45

Section 1103. Selection by Trustee of Securities to Be Redeemed 45

Section 1104. Notice of Redemption 46

Section 1105. Payment of Redemption Price 46

Section 1106. Securities Payable on Redemption Date 46

Section 1107. Securities Redeemed in Part 47

Article Twelve Sinking Funds 47

Section 1201. Applicability of Article 47

Section 1202. Satisfaction of Sinking Fund Payments with Securities 47

Section 1203. Redemption of Securities for Sinking Fund 48

Article Thirteen Defeasance and Covenant Defeasance 48

Section 1301. Company's Option to Effect Defeasance or Covenant Defeasance 48

Section 1302. Defeasance and Discharge 48

Section 1303. Covenant Defeasance 49


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Section 1304. Conditions to Defeasance or Covenant Defeasance 49

Section 1305. Deposited Money and U.S. Government Obligations to Be Held in Trust; Miscellaneous Provisions 51

Section 1306. Reinstatement 51

Article Fourteen Conversion of Securities 52

Section 1401. Applicability of Article 52

Section 1402. Notice of Certain Corporate Actions 52

Section 1403. Reservation of Shares of Common Stock 52

Section 1404. Payment of Certain Taxes upon Conversion 52

Section 1405. Nonassessability 52

Section 1406. Duties of Trustee Regarding Conversion 52

Section 1407. Repayment of Certain Funds upon Conversion 53

Article Fifteen Collateral 53

Section 1501. Releases of Collateral 53


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INDENTURE , dated February 17, 2004, between ACCLAIM ENTERTAINMENT, INC. , a corporation duly organized and existing under the laws of the State of Delaware (herein called the "Company"), having its principal executive office at One Acclaim Plaza, Glen Cove, New York 11542, and U.S. BANK TRUST NATIONAL ASSOCIATION , a national banking association duly organized and existing under the laws of the United States of America, as Trustee (herein called the "Trustee").


RECITALS OF THE COMPANY


The Company has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its secured and unsecured debentures, notes or other evidences of indebtedness (herein called the "Securities"), to be issued in one or more series as provided in this Indenture.


All things necessary to make this Indenture a valid agreement of the Company, in accordance with its terms, have been done.


NOW, THEREFORE, THIS INDENTURE WITNESSETH:


For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Securities or of series thereof appertaining, as follows:


ARTICLE ONE


DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION


Section 101. Definitions. For all purposes of this Indenture, except as otherwise expressly provided herein or in a Supplemental Indenture, or unless the context otherwise requires:


(1) the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular;

(2) all other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein;


(3) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles, and, except as otherwise herein expressly provided, the term "generally accepted accounting principles" with respect to any computation required or permitted hereunder shall mean such accounting principles as are generally accepted at the date of such computation;

(4) unless the context otherwise requires, any reference to an "Article" or a "Section" refers to an Article or a Section, as the case may be, of this Indenture; and


(5) the words "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.

"Act" when used with respect to any Holder, has the meaning specified in Section 104.

"Affiliate" of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, "control" when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing.


"Appraiser" means a Person engaged in the business of appraising property who (except as otherwise expressly provided in this Indenture) may be employed by or affiliated with the Company.

"Authenticating Agent" means any Person authorized by the Trustee pursuant to Section 614 to act on behalf of the Trustee to authenticate Securities of one or more series.


"Board of Directors" means either the board of directors of the Company or any duly authorized committee of that board empowered to act for it with respect to this Indenture.


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


"Business Day" when used with respect to any Place of Payment, means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in that Place of Payment are authorized or obligated by law or executive order to close.

"Commission" means the Securities and Exchange Commission, from time to time constituted, created under the Exchange Act, or, if at any time after the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.

"Company" means the corporation named as the "Company" in the first paragraph of this instrument until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter "Company" shall mean such successor Person.

"Company Request" or "Company Order" means a written request or order signed in the name of the Company by its Chairman of the Board, its Vice Chairman of the Board, its


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President or a Vice President, and by its principal financial officer, its Secretary or an Assistant Secretary, and delivered to the Trustee.

"Corporate Trust Office" means the corporate trust office of the Trustee at which at any particular time the trust created by this Indenture shall be administered, which office on the date hereof is located at 100 Wall Street, 16 th Floor, New York, New York, 10005.

"corporation" means a corporation, association, company, joint-stock company or business trust.

"Covenant Defeasance" has the meaning specified in Section 1303.


"Defaulted Interest" has the meaning specified in Section 307.


"Defeasance" has the meaning specified in Section 1302.


"Depositary" means, with respect to Securities of any series issuable in whole or in part in the form of one or more Global Securities, a clearing agency registered under the Exchange Act that is designated to act as Depositary for such Securities as contemplated by Section 301.


"Event of Default" has the meaning specified in Section 501.


"Exchange Act" means the Securities Exchange Act of 1934 and any statute successor thereto, in each case as amended from time to time.

"Expiration Date" has the meaning specified in Section 104.


"Fair Market Value" means, at any time with respect to any property, the sale value of such property which could be realized in an arm's length sale at such time between an informed and willing vendee, and an informed and willing vendor, under no compulsion to buy or sell, respectively, all as determined in good faith (a) in the case of any Officers' Certificate or other certificate delivered pursuant to Section 1501, by the signer or signers thereof and (b) in all other cases, (i) by the vendor's board of directors or (ii) in the case of any such property of the Company or any Restricted Subsidiary, by the Chief Executive Officer or the President of the Company, except as otherwise specifically provided in this Indenture or any Indenture supplemental hereto.


"Financial Advisor" shall mean an investment banking firm of national reputation which (except as otherwise expressly provided in this Indenture) may be employed by or affiliated with the Company.


"Global Security" means a Security that evidences all or part of the Securities of any series and bears the legend set forth in Section 204 (or such legend as may be specified as contemplated by Section 301 for such Securities).


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"Holder" means a Person in whose name a Security is registered in the Security Register.


"Indenture" means this instrument as originally executed and as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof, including, for all purposes of this instrument and any such supplemental indenture, the provisions of the Trust Indenture Act that are deemed to be a part of and govern this instrument and any such supplemental indenture, respectively. The term "Indenture" shall also include the terms of particular series of Securities established as contemplated by Section 301; provided, however, that if at any time more than one Person is acting as Trustee under this Indenture due to the appointment of one or more separate Trustees for any one or more separate series of Securities, "Indenture" shall mean, with respect to such series of Securities for which any such Person is Trustee, this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof and shall include the terms of particular series of Securities for which such Person is Trustee established as contemplated by Section 301, exclusive, however, of any provisions or terms which relate solely to other series of Securities for which such Person is not Trustee, regardless of when such terms or provisions were adopted, and exclusive of any provisions or terms adopted by means of one or more indentures supplemental hereto executed and delivered after such Person had become such Trustee, but to which such Person, as such Trustee, was not a party; provided, further, that in the event that this Indenture is supplemented or amended by one or more indentures supplemental hereto which are only applicable to certain series of Securities, the term "Indenture" for a particular series of Securities shall include only the supplemental indentures applicable thereto.


"Independent" when used with respect to any specified Person means such a Person who (a) is independent within the meaning of the Trust Indenture Act, (b) does not have any direct financial interest or any material indirect financial interest in the Company or in any other obligor under the Securities or in any Affiliate of the Company or of such other obligor and (c) is not connected with the Company or such other obligor as an officer, employee, promoter, underwriter, trustee, partner, director or Person performing similar functions. Whenever it is herein provided that any Independent Person's opinion or certificate shall be furnished to the Trustee, such Person shall be appointed by a Company Order and such opinion or certificate shall state that the signer has read this definition and that the signer is Independent within the meaning thereof.


"interest" when used with respect to an Original Issue Discount Security which by its terms bears interest only after Maturity, means interest payable after Maturity.

"Interest Payment Date" when used with respect to any Security, means the Stated Maturity of an installment of interest on such Security.


"Investment Company Act" means the Investment Company Act of 1940 and any statute successor thereto, in each case as amended from time to time.


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"Lien" shall mean any lien, mortgage, security interest, chattel mortgage, pledge, equity or other encumbrance (statutory or otherwise) of any kind, including, without limitation, any agreement to give any of the foregoing, any conditional sales or other title retention agreement, any lease in the nature thereof, and the filing of or the agreement to give any financing statement under the Uniform Commercial Code of New York or similar evidence of any encumbrance, whether within or outside the United States.


"Maturity" when used with respect to any Security, means the date on which the principal of such Security or an installment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.


"Notice of Default" means a written notice of the kind specified in a Board Resolution or Supplemental Indenture with respect to any series of Securities.


"Officers' Certificate" means a certificate signed by the Chairman of the Board, a Vice Chairman of the Board, the President or a Vice President, and by the principal financial officer, the Secretary or an Assistant Secretary, of the Company, and delivered to the Trustee. One of the officers signing an Officers' Certificate given pursuant to Section 1004 shall be the principal executive, financial or accounting officer of the Company.

"Opinion of Counsel" means a written opinion of counsel, who may be counsel for, or an employee of, the Company, and who shall be reasonably acceptable to the Trustee.

"Original Issue Discount Security" means any Security which provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 502.


"Outstanding" when used with respect to Securities, means, as of the date of determination, all Securities theretofore authenticated and delivered under this Indenture, except:

(1) Securities theretofore canceled by the Trustee or delivered to the Trustee for cancellation;


(2) Securities for whose payment or redemption money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for the Holders of such Securities; provided that, if such Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made;

(3) Securities as to which Defeasance has been effected pursuant to Section 1302; and


(4) Securities which have been paid pursuant to Section 306 or in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this


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Indenture, other than any such Securities in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Securities are held by a bona fide purchaser in whose hands such Securities are valid obligations of the Company; provided, however, that in determining whether the Holders of the requisite principal amount of the Outstanding Securities have given, made or taken any request, demand, authorization, direction, notice, consent, waiver or other action hereunder as of any date, (A) the principal amount of an Original Issue Discount Security which shall be deemed to be Outstanding shall be the amount of the principal thereof which would be due and payable as of such date upon acceleration of the Maturity thereof to such date pursuant to Section 502, (B) if, as of such date, the principal amount payable at the Stated Maturity of a Security is not determinable, the principal amount of such Security which shall be deemed to be Outstanding shall be the amount as specified or determined as contemplated by Section 301, (C) the principal amount of a Security denominated in one or more foreign currencies or currency units which shall be deemed to be Outstanding shall be the U.S. dollar equivalent, determined as of such date in the manner provided as contemplated by Section 301, of the principal amount of such Security (or, in the case of a Security described in Clause (A) or (B) above, of the amount determined as provided in such Clause), and (D) Securities owned by the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent, waiver or other action, only Securities which the Trustee knows to be so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee's right so to act with respect to such Securities and that the pledgee is not the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor.


"Paying Agent" means any Person authorized by the Company to pay the principal of or any premium or interest on any Securities on behalf of the Company.


"Person" means any individual, corporation, partnership, limited liability company, joint venture, trust, unincorporated organization or government or any agency or political subdivision thereof.


"Place of Payment" when used with respect to the Securities of any series, means the place or places where the principal of and any premium and interest on the Securities of that series are payable as specified as contemplated by Section 301.

"Predecessor Security" of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 306 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security.


"Prior Lien" means any Lien on any of the collateral securing the Company's obligations with respect to Securities issued under this Indenture ranking prior to or upon parity with the Lien of this Indenture.

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"Property" means any interest in any kind of property or asset, whether real, personal or mixed, and whether tangible or intangible.


"Redemption Date" when used with respect to any Security to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture.

"Redemption Price" when used with respect to any Security to be redeemed, means the price at which it is to be redeemed pursuant to this Indenture.


"Regular Record Date" for the interest payable on any Interest Payment Date on the Securities of any series means the date specified for that purpose as contemplated by Section 301.

"Responsible Officer" means an officer in the Corporate Trust Office of the Trustee.

"Securities" has the meaning stated in the first recital of this Indenture and more particularly means any Securities authenticated and delivered under this Indenture.

"Securities Act" means the Securities Act of 1933 and any statute successor thereto, in each case as amended from time to time.

"Security Register" and "Security Registrar" have the respective meanings specified in Section 305.


"Special Record Date" for the payment of any Defaulted Interest means a date fixed by the Trustee pursuant ...