exv4w6








EXHIBIT 4.6




Form of Indenture




MAJESCO ENTERTAINMENT COMPANY

ISSUER




and




 






INDENTURE TRUSTEE




INDENTURE




Dated as of                     ,           




 








 









TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE
	 	 	1	 
	 
	 	 	 	 
	Section 1.01 Definitions
	 	 	1	 
	Section 1.02 Other Definitions
	 	 	4	 
	Section 1.03 Incorporation by Reference of Trust Indenture Act
	 	 	4	 
	Section 1.04 Rules of Construction
	 	 	4	 
	 
	 	 	 	 
	ARTICLE II THE SECURITIES
	 	 	5	 
	 
	 	 	 	 
	Section 2.01 Issuable in Series
	 	 	5	 
	Section 2.02 Establishment of Terms of Series of Securities
	 	 	5	 
	Section 2.03 Execution and Authentication
	 	 	6	 
	Section 2.04 Registrar and Paying Agent
	 	 	7	 
	Section 2.05 Paying Agent to Hold Money in Trust
	 	 	7	 
	Section 2.06 Holder Lists
	 	 	8	 
	Section 2.07 Transfer and Exchange
	 	 	8	 
	Section 2.08 Mutilated, Destroyed, Lost and Stolen Securities
	 	 	8	 
	Section 2.09 Outstanding Securities
	 	 	8	 
	Section 2.10 Treasury Securities
	 	 	9	 
	Section 2.11 Temporary Securities
	 	 	9	 
	Section 2.12 Cancellation
	 	 	9	 
	Section 2.13 Defaulted Interest
	 	 	9	 
	Section 2.14 Global Securities
	 	 	9	 
	Section 2.15 CUSIP Numbers
	 	 	10	 
	 
	 	 	 	 
	ARTICLE III REDEMPTION
	 	 	11	 
	 
	 	 	 	 
	Section 3.01 Notice to Trustee
	 	 	11	 
	Section 3.02 Selection of Securities to be Redeemed
	 	 	11	 
	Section 3.03 Notice of Redemption
	 	 	11	 
	Section 3.04 Effect of Notice of Redemption
	 	 	12	 
	Section 3.05 Deposit of Redemption Price
	 	 	12	 
	Section 3.06 Securities Redeemed in Part
	 	 	12	 
	 
	 	 	 	 
	ARTICLE IV COVENANTS
	 	 	12	 






 









 








	 	 	 	 	 
	 	 	Page
	Section 4.01 Payment of Principal and Interest
	 	 	12	 
	Section 4.02 SEC Reports
	 	 	12	 
	Section 4.03 Compliance Certificate
	 	 	12	 
	Section 4.04 Stay, Extension and Usury Laws
	 	 	12	 
	 
	 	 	 	 
	ARTICLE V SUCCESSORS
	 	 	13	 
	 
	 	 	 	 
	Section 5.01 When Company May Merge, Etc
	 	 	13	 
	Section 5.02 Successor Corporation Substituted
	 	 	13	 
	 
	 	 	 	 
	ARTICLE VI DEFAULTS AND REMEDIES
	 	 	13	 
	 
	 	 	 	 
	Section 6.01 Events of Default
	 	 	13	 
	Section 6.02 Acceleration of Maturity; Rescission and Annulment
	 	 	14	 
	Section 6.03 Collection of Indebtedness and Suits for Enforcement by Trustee
	 	 	14	 
	Section 6.04 Trustee May File Proofs of Claim
	 	 	15	 
	Section 6.05 Trustee May Enforce Claims Without Possession of Securities
	 	 	15	 
	Section 6.06 Application of Money Collected
	 	 	15	 
	Section 6.07 Limitation on Suits
	 	 	15	 
	Section 6.08 Unconditional Right of Holders to Receive Principal and Interest
	 	 	16	 
	Section 6.09 Restoration of Rights and Remedies
	 	 	16	 
	Section 6.10 Rights and Remedies Cumulative
	 	 	16	 
	Section 6.11 Delay or Omission Not Waiver
	 	 	16	 
	Section 6.12 Control by Holders
	 	 	16	 
	Section 6.13 Waiver of Past Defaults
	 	 	17	 
	Section 6.14 Undertaking for Costs
	 	 	17	 
	 
	 	 	 	 
	ARTICLE VII TRUSTEE
	 	 	17	 
	 
	 	 	 	 
	Section 7.01 Duties of Trustee
	 	 	17	 
	Section 7.02 Rights of Trustee
	 	 	18	 
	Section 7.03 Individual Rights of Trustee
	 	 	19	 
	Section 7.04 Trustee’s Disclaimer
	 	 	19	 
	Section 7.05 Notice of Defaults
	 	 	19	 
	Section 7.06 Reports by Trustee to Holders
	 	 	19	 
	Section 7.07 Compensation and Indemnity
	 	 	19	 
	Section 7.08 Replacement of Trustee
	 	 	20	 
	Section 7.09 Successor Trustee by Merger, etc
	 	 	20	 
	Section 7.10 Eligibility; Disqualification
	 	 	20	 
	Section 7.11 Preferential Collection of Claims Against Company
	 	 	20	 
	 
	 	 	 	 
	ARTICLE VIII SATISFACTION AND DISCHARGE; DEFEASANCE
	 	 	20	 
	 
	 	 	 	 
	Section 8.01 Satisfaction and Discharge of Indenture
	 	 	20	 
	Section 8.02 Application of Trust Funds; Indemnification
	 	 	21	 
	Section 8.03 Legal Defeasance of Securities of any Series
	 	 	21	 
	Section 8.04 Covenant Defeasance
	 	 	23	 






 









 








TABLE OF CONTENTS

continued




	 	 	 	 	 
	 	 	Page
	Section 8.05 Repayment to Company
	 	 	23	 
	Section 8.06 Reinstatement
	 	 	23	 
	 
	 	 	 	 
	ARTICLE IX AMENDMENTS AND WAIVERS
	 	 	24	 
	 
	 	 	 	 
	Section 9.01 Without Consent of Holders
	 	 	24	 
	Section 9.02 With Consent of Holders
	 	 	25	 
	Section 9.03 Limitations
	 	 	25	 
	Section 9.04 Compliance with Trust Indenture Act
	 	 	25	 
	Section 9.05 Revocation and Effect of Consents
	 	 	25	 
	Section 9.06 Notation on or Exchange of Securities
	 	 	26	 
	Section 9.07 Trustee Protected
	 	 	26	 
	 
	 	 	 	 
	ARTICLE X MISCELLANEOUS
	 	 	26	 
	 
	 	 	 	 
	Section 10.01 Trust Indenture Act Controls
	 	 	26	 
	Section 10.02 Notices
	 	 	26	 
	Section 10.03 Communication by Holders with Other Holders
	 	 	27	 
	Section 10.04 Certificate and Opinion as to Conditions Precedent
	 	 	27	 
	Section 10.05 Statements Required in Certificate or Opinion
	 	 	27	 
	Section 10.06 Rules by Trustee and Agents
	 	 	27	 
	Section 10.07 Legal Holidays
	 	 	27	 
	Section 10.08 No Recourse Against Others
	 	 	27	 
	Section 10.09 Counterparts
	 	 	27	 
	Section 10.10 Governing Laws
	 	 	27	 
	Section 10.11 No Adverse Interpretation of Other Agreements
	 	 	28	 
	Section 10.12 Successors
	 	 	28	 
	Section 10.13 Severability
	 	 	28	 
	Section 10.14 Table of Contents, Headings, Etc
	 	 	28	 
	Section 10.15 Securities in a Foreign Currency
	 	 	28	 
	Section 10.16 Judgment Currency
	 	 	28	 
	 
	 	 	 	 
	ARTICLE XI SINKING FUNDS
	 	 	29	 
	 
	 	 	 	 
	Section 11.01 Applicability of Article
	 	 	29	 
	Section 11.02 Satisfaction of Sinking Fund Payments with Securities
	 	 	29	 
	Section 11.03 Redemption of Securities for Sinking Fund
	 	 	29	 






 









 







MAJESCO ENTERTAINMENT COMPANY

Reconciliation and tie between Trust Indenture Act of 1939 and

Indenture, dated as of                    ,      




	 	 	 	 	 	 	 	 	 	 	 
	Section 310
	 	(a)(1)	 	 	 	 	 	 	 7.10
	 
	 	(a)(2)	 	 	 	 	 	 	 7.10
	 
	 	(a)(3)	 	 	 	 	 	NOT APPLICABLE
	 
	 	(a)(4)	 	 	 	 	 	NOT APPLICABLE
	 
	 	(a)(5)	 	 	 	 	 	 	 7.10
	 
	 	(b)	 	 	 	 	 	 	 7.10
	Section 311
	 	(a)	 	 	 	 	 	 	 7.11
	 
	 	(b)	 	 	 	 	 	 	 7.11
	 
	 	(c)	 	 	 	 	 	NOT APPLICABLE
	Section 312
	 	(a)	 	 	 	 	 	 	2.06
	 
	 	(b)	 	 	 	 	 	 	10.03
	 
	 	(c)	 	 	 	 	 	 	10.03
	Section 313
	 	(a)	 	 	 	 	 	 	7.06
	 
	 	(b)(1)	 	 	 	 	 	 	7.06
	 
	 	(b)(2)	 	 	 	 	 	 	7.06
	 
	 	(c)(1)	 	 	 	 	 	 	7.06
	 
	 	(d)	 	 	 	 	 	 	7.06
	Section 314
	 	(a)	 	 	 	 	 	 	4.02, 10.05
	 
	 	(b)	 	 	 	 	 	NOT APPLICABLE
	 
	 	(c)(1)	 	 	 	 	 	 	10.04
	 
	 	(c)(2)	 	 	 	 	 	 	10.04
	 
	 	(c)(3)	 	 	 	 	 	NOT APPLICABLE
	 
	 	(d)	 	 	 	 	 	NOT APPLICABLE
	 
	 	(e)	 	 	 	 	 	 	10.05
	 
	 	(f)	 	 	 	 	 	NOT APPLICABLE
	Section 315
	 	(a)	 	 	 	 	 	 	7.01
	 
	 	(b)	 	 	 	 	 	 	7.05
	 
	 	(c)	 	 	 	 	 	 	7.
	 
	 	(d)	 	 	 	 	 	 	7.01
	 
	 	(e)	 	 	 	 	 	 	6.14
	Section 316
	 	(a)	 	 	 	 	 	 	2.09
	 
	 	(a)(1)(a)	 	 	 	 	 	 	6.12
	 
	 	(a)(1)(b)	 	 	 	 	 	 	6.13
	 
	 	(b)	 	 	 	 	 	 	6.08
	Section 317
	 	(a)(1)	 	 	 	 	 	 	6.03
	 
	 	(a)(2)	 	 	 	 	 	 	6.04
	 
	 	(b)	 	 	 	 	 	 	2.05
	Section 318
	 	(a)	 	 	 	 	 	 	10.01






 









 






     Indenture dated as of                      , ___between Majesco Entertainment Company, a Delaware
corporation (“Company”), and                      , a ___corporation, as trustee (“Trustee”).



     Each party agrees as follows for the benefit of the other party and for the equal and ratable
benefit of the Holders of the Securities issued under this Indenture.



ARTICLE I




DEFINITIONS AND INCORPORATION BY REFERENCE




     Section 1.01 Definitions.



     “Additional Amounts” means any additional amounts which are required hereby or by any
Security, under circumstances specified herein or therein, to be paid by the Company in respect of
certain taxes imposed on Holders specified herein or therein and which are owing to such Holders.



     “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” (including, with correlative meanings, the terms “controlled
by” and “under common control with”), as used with respect to any person, shall mean the
possession, directly or indirectly, of the power to direct or cause the direction of the management
or policies of such person, whether through the ownership of voting securities or by agreement or
otherwise.



     “Agent” means any Registrar, Paying Agent or Service Agent.



     “Applicable Procedures” means, with respect to any transfer or transaction involving a Global
Security or beneficial interest therein, the rules and procedures of DTC or any successor
Depositary, in each case to the extent applicable to such transaction and as in effect from time to
time.



     “Authorized Newspaper” means a newspaper in an official language of the country of publication
customarily published at least once a day for at least five days in each calendar week and of
general circulation in the place in connection with which the term is used. If it shall be
impractical in the opinion of the Trustee to make any publication of any notice required hereby in
an Authorized Newspaper, any publication or other notice in lieu thereof that is made or given by
the Trustee shall constitute a sufficient publication of such notice.



     “Bearer” means anyone in possession from time to time of a Bearer Security.



     “Bearer Security” means any Security, including any interest coupon appertaining thereto, that
does not provide for the identification of the Holder thereof.



     “Board of Directors” means the Board of Directors of the Company or any duly authorized
committee thereof.



     “Board Resolution” means a copy of a resolution certified by the Secretary or an Assistant
Secretary of the Company to have been adopted by the Board of Directors or pursuant to
authorization by the Board of Directors and to be in full force and effect on the date of the
certificate and delivered to the Trustee.



     “Business Day” means, unless otherwise provided by Board Resolution, Officers’ Certificate or
supplemental indenture hereto for a particular Series, any day except a Saturday, Sunday or a legal
holiday in The City of New York on which banking institutions are authorized or required by law,
regulation or executive order to close.



     “Capital Interests” means any and all shares, interests, participations, rights or other
equivalents (however designated) of capital stock, including, without limitation, with respect to
partnerships, partnership interests (whether general or limited) and any other interest or
participation that confers on a person the right to receive a share of the profits and losses of,
or distributions of assets of, such partnership.



 









 






     “Company” means the party named as such above until a successor replaces it and thereafter
means the successor.



     “Company Order” means a written order signed in the name of the Company by two Officers, one
of whom must be the Company’s principal executive officer, principal financial officer or principal
accounting officer.



     “Company Request” means a written request signed in the name of the Company by its Chief
Executive Officer, Chief Financial Officer or a Vice President, and by its Treasurer, an Assistant
Treasurer, its Secretary or an Assistant Secretary, and delivered to the Trustee.



     “Corporate Trust Office” means the office of the Trustee at which at any particular time its
corporate trust business shall be principally administered.



     “Default” means any event which is, or after notice or passage of time or both would be, an
Event of Default.



     “Depository” means, with respect to the Securities of any Series issuable or issued in whole
or part in the form of one or more Global Securities, the person designated as Depositary for such
Series by the Company, which Depository shall be a clearing agency registered under the Exchange
Act; and if at any time there is more than one such person, “Depository” as used with respect to
the Securities of any Series shall mean the Depository with respect to the Securities of such
Series.



     “Discount Security” means any Security that provides for an amount less than the stated
principal amount thereof to be due and payable upon declaration of acceleration of the maturity
thereof pursuant to Section 6.02.



     “Dollars” and “$” means the currency of The United States of America.



     “DTC” means the Depository Trust Company, a New York corporation.



     “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.



     “Foreign Currency” means any currency or currency unit issued by a government other than the
government of The United States of America.



     “Foreign Government Obligations” means, with respect to Securities of any Series that are
denominated in a Foreign Currency, (i) direct obligations of the government that issued or caused
to be issued such currency for the payment of which obligations its full faith and credit is
pledged or (ii) obligations of a person controlled or supervised by or acting as an agency or
instrumentality of such government the timely payment of which is unconditionally guaranteed as a
full faith and credit obligation by such government, which, in either case under clauses (i) or
(ii), are not callable or redeemable at the option of the issuer thereof.



     “GAAP” means generally accepted accounting principles promulgated by the Financial Accounting
Standards Board or by such other entity as the SEC may designate for that purpose.



     “Global Security” or “Global Securities” means a Security or Securities, as the case may be,
in the form established pursuant to Section 2.02 evidencing all or part of a Series of Securities,
issued to the Depository for such Series or its nominee, and registered in the name of such
Depository or nominee.



     “Holder” means a person in whose name a Security is registered or the holder of a Bearer
Security.



     “Indenture” means this Indenture as amended or supplemented from time to time and shall
include the form and terms of particular Series of Securities established as contemplated
hereunder.



2









 





     “interest” with respect to any Discount Security which by its terms bears interest only after
Maturity means interest payable after Maturity.



     “Maturity” when used with respect to any Security or installment of principal thereof, means
the date on which the principal of such Security or such 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.



     “Officer” means the Chief Executive Officer, Chief Financial Officer, any Vice-President, the
Treasurer, the Secretary, any Assistant Treasurer or any Assistant Secretary of the Company.



     “Officers’ Certificate” means a certificate signed by two Officers, one of whom must be the
Company’s principal executive officer, principal financial officer or principal accounting officer.



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



     “person” means any individual, corporation, partnership, joint venture, association, limited
liability company, joint-stock company, trust, unincorporated organization or government or any
agency or political subdivision thereof.



     “principal” of a Security means the principal of the Security plus, when appropriate, the
premium, if any, on, and any Additional Amounts in respect of, the Security.



     “Responsible Officer” means any officer of the Trustee in its Corporate Trust Office with
direct responsibility for the administration of this Indenture and also means, with respect to a
particular corporate trust matter, any other officer to whom any corporate trust matter is referred
because of his or her knowledge of and familiarity with a particular subject.



     “SEC” means the Securities and Exchange Commission.



     “Securities” means the debentures, notes or other debt instruments of the Company of any
Series authenticated and delivered under this Indenture.



     “Series” or “Series of Securities” means each series of debentures, notes or other debt
instruments of the Company created pursuant to Sections 2.01 and 2.02 hereof.



     “Stated Maturity” means when used with respect to any Security or any installment of principal
thereof or interest thereon, the date specified in such Security as the fixed date on which the
principal of such Security or such installment of principal or interest is due and payable.



     “Subsidiary” means, with respect to any person, any corporation, association or other business
entity of which more than 50% of the total voting power of shares of Capital Interests entitled
(without regard to the occurrence of any contingency) to vote in the election of directors,
managers or trustees thereof or, in the case of a partnership, more than 50% of the partners’
Capital Interests (considering all partners’ Capital Interests as a single class), is at the time
owned or controlled, directly or indirectly, by such person or one or more of the other
Subsidiaries of such person or combination thereof.



     “TIA” means the Trust Indenture Act of 1939 (15 U.S. Code Sections 77aaa-77bbbb) as in effect
on the date of this Indenture and the rules and regulations promulgated thereunder; provided,
however, that in the event the Trust Indenture Act of 1939 is amended after such date, “TIA” means,
to the extent required by any such amendment, the Trust Indenture Act as so amended.



     “Trustee” means the person named as the “Trustee” in the first paragraph of this instrument
until a successor Trustee shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter “Trustee” shall mean each person who is then a Trustee hereunder, and if
at any time there is more than one such person, “Trustee” as used with respect to the Securities of
any Series shall mean the Trustee with respect to Securities of that Series.



3









 





     “U.S. Government Obligations” means securities which are (i) direct obligations of The United
States of America for the payment of which its full faith and credit is pledged or (ii) obligations
of a person controlled or supervised by and acting as an agency or instrumentality of The United
States of America the payment of which is unconditionally guaranteed as a full faith and credit
obligation by The United States of America, and which are not callable or redeemable at the option
of the issuer thereof, and shall also include a depository receipt issued by a bank or trust
company as custodian with respect to any such U.S. Government Obligation or a specific payment of
interest on or principal of any such U.S. Government Obligation held by such custodian for the
account of the holder of a depository receipt, provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in respect of the U.S. Government
Obligation evidenced by such depository receipt.



     Section 1.02 Other Definitions.



	 	 	 	 	 
	 	 	DEFINED IN
	TERM	 	SECTION
	“Bankruptcy Law”
	 	 	6.01	 
	“Custodian”
	 	 	6.01	 
	“Event of Default”
	 	 	6.01	 
	“Judgment Currency”
	 	 	10.16	 
	“Legal Holiday”
	 	 	10.07	 
	“mandatory sinking fund payment”
	 	 	11.01	 
	“Market Exchange Rate”
	 	 	10.15	 
	“New York Banking Day”
	 	 	10.16	 
	“optional sinking fund payment”
	 	 	11.01	 
	“Paying Agent”
	 	 	2.04	 
	“Registrar”
	 	 	2.04	 
	“Required Currency”
	 	 	10.16	 
	“Service Agent”
	 	 	2.04	 
	“successor person”
	 	 	5.01	 






     Section 1.03 Incorporation by Reference of Trust Indenture Act.



     Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by
reference in and made a part of this Indenture. The following TIA terms used in this Indenture have
the following meanings:



     “Commission” means the SEC.



     “indenture securities” means the Securities.



     “indenture security holder” means a Holder.



     “indenture to be qualified” means this Indenture.



     “indenture trustee” or “institutional trustee” means the Trustee.



     “obligor” on the indenture securities means the Company and any successor obligor upon the
Securities.



     All other terms used in this Indenture that are defined by the TIA, defined by TIA reference
to another statute or defined by SEC rule under the TIA and not otherwise defined herein are used
herein as so defined.



     Section 1.04 Rules of Construction.



     Unless the context otherwise requires:



4









 





     (a) a term has the meaning assigned to it;



     (b) an accounting term not otherwise defined has the meaning assigned to it in
accordance with generally accepted accounting principles;



     (c) references to “generally accepted accounting principles” and “GAAP” shall mean
generally accepted accounting principles in effect as of the time when and for the period as to
which such accounting principles are to be applied;



     (d) “or” is not exclusive;



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



     (f) provisions apply to successive events and transactions.



ARTICLE II

THE SECURITIES




     Section 2.01 Issuable in Series. The aggregate principal amount of Securities that may be
authenticated and delivered under this Indenture is unlimited. The Securities may be issued in one
or more Series. All Securities of a Series shall be identical except as may be set forth or
determined in the manner provided in a Board Resolution, supplemental indenture or Officers’
Certificate detailing the adoption of the terms thereof pursuant to authority granted under a Board
Resolution. In the case of Securities of a Series to be issued from time to time, the Board
Resolution, Officers’ Certificate or supplemental indenture detailing the adoption of the terms
thereof pursuant to authority granted under a Board Resolution may provide for the method by which
specified terms (such as interest rate, maturity date, record date or date from which interest
shall accrue) are to be determined. Securities may differ between Series in respect of any matters,
provided that all Series of Securities shall be equally and ratably entitled to the benefits of the
Indenture.



     Section 2.02 Establishment of Terms of Series of Securities. At or prior to the issuance of
any Securities within a Series, the following shall be established (as to the Series generally, in
the case of Subsection 2.02(a) and either as to such Securities within the Series or as to the
Series generally in the case of Subsections 2.02(b) through 2.02(s) by or pursuant to a Board
Resolution, and set forth or determined in the manner provided in a Board Resolution, supplemental
indenture or an Officers’ Certificate:



     (a) the form and title of the Series (which shall distinguish the Securities of that
particular Series from the Securities of any other Series);



     (b) the price or prices (expressed as a percentage of the principal amount thereof) at
which the Securities of the Series will be issued;



     (c) any limit upon the aggregate principal amount of the Securities of the Series which
may be authenticated and delivered under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of
the Series pursuant to Section 2.07, 2.08, 2.11, 3.06 or 9.06);



     (d) the date or dates on which the principal of the Securities of the Series is
payable;



     (e) the rate or rates (which may be fixed or variable) per annum or, if applicable, the
method used to determine such rate or rates (including, but not limited to, any commodity,
commodity index, stock exchange index or financial index) at which the Securities of the Series
shall bear interest, if any, the date or dates from which such interest, if any, shall accrue, the
date or dates on which such interest, if any, shall commence and be payable and any regular record
date for the interest payable on any interest payment date;



     (f) the place or places where the principal of and interest, if any, on the Securities
of the Series shall be payable, where the Securities of such Series may be surrendered for
registration of transfer or exchange



5









 




and where notices and demands to or upon the Company in
respect of the Securities of such Series and this Indenture may be served, and the method of such
payment, if by wire transfer, mail or other means;




     (g) if applicable, the period or periods within which, the price or prices at which and
the terms and conditions upon which the Securities of the Series may be redeemed, in whole or in
part, at the option of the Company;



     (h) the obligation, if any, of the Company to redeem or purchase the Securities of the
Series pursuant to any sinking fund or analogous provisions or at the option of a Holder thereof
and the period or periods within which, the price or prices at which and the terms and conditions
upon which Securities of the Series shall be redeemed or purchased, in whole or in part, pursuant
to such obligation;



     (i) the dates, if any, on which and the price or prices at which the Securities of the
Series will be repurchased by the Company at the option of the Holders thereof and other detailed
terms and provisions of such repurchase obligations;



     (j) if other than denominations of $1,000 and any integral multiple thereof, the
denominations in which the Securities of the Series shall be issuable;



     (k) if other than the principal amount thereof, the portion of the principal amount of
the Securities of the Series that shall be payable upon declaration of acceleration of the maturity
thereof pursuant to Section 6.02;



     (l) the currency of denomination of the Securities of the Series, which may be Dollars
or any Foreign Currency, and the agency or organization, if any, responsible for overseeing such
composite currency;



     (m) the provisions, if any, relating to any security provided for the Securities of the
Series;



     (n) any addition to or change in the Events of Default which applies to any Securities
of the Series and any change in the right of the Trustee or the requisite Holders of such
Securities to declare the principal amount thereof due and payable pursuant to Section 6.02;



     (o) any addition to or change in the covenants set forth in Articles IV or V which
applies to Securities of the Series;



     (p) the provisions, if any, relating to conversion of any Securities of such Series,
including, if applicable, the securities into which the Securities are convertible, the conversion
price, the conversion period, provisions as to whether conversion will be mandatory, at the option
of the Holders or at the option of the Company, the events requiring an adjustment of the
conversion price and provisions affecting conversion if such Series of Securities are redeemed;



     (q) whether the Securities of such Series will be senior debt securities or
subordinated debt securities and, if applicable, a description of the subordination terms thereof;



     (r) any depositaries, interest rate calculation agents, exchange rate calculation
agents or other agents with respect to Securities of such Series if other than those appointed
herein; and



     (s) any other terms of the Securities of the Series (which may modify or delete any
provision of this Indenture insofar as it applies to such Series).



     All Securities of any one Series need not be issued at the same time and may be issued from
time to time, consistent with the terms of this Indenture, if so provided by or pursuant to the
Board Resolution, supplemental indenture hereto or Officers’ Certificate referred to above, and,
unless otherwise provided in such Board Resolution, a Series may be reopened, without the consent
of the Holders, for increases in the aggregate principal amount of such Series and issuances of
additional Securities of such Series.



     Section 2.03 Execution and Authentication. Two Officers shall sign the Securities for the
Company by manual or facsimile signature. If an Officer whose signature is on a Security no longer
holds that office



6









 




at the time the Security is authenticated, the Security shall nevertheless be
valid. A Security shall not be valid until authenticated by the manual signature of the Trustee or
an authenticating agent. The signature shall be conclusive evidence that the Security has been
authenticated under this Indenture. The Trustee shall at any time, and from time to time,
authenticate Securities for original issue in the principal amount provided in the Board
Resolution, supplemental indenture hereto or Officers’ Certificate, upon receipt by the Trustee of
a Company Order. Such Company Order may authorize authentication and delivery pursuant to oral or
electronic instructions from the Company or its duly authorized agent or agents, which oral
instructions shall be promptly confirmed in writing. Each Security shall be dated the date of its
authentication unless otherwise provided by a Board Resolution, a supplemental indenture hereto or
an Officers’ Certificate. The aggregate principal amount of Securities of any Series outstanding at
any time may not exceed any limit upon the maximum principal amount for such Series set forth in
the Board Resolution, supplemental indenture hereto or Officers’ Certificate delivered pursuant to
Section 2.02, except as provided in Section 2.02 or 2.08. Prior to the issuance of Securities of
any Series, the Trustee shall have received and (subject to Section 7.02) shall be fully protected
in relying on: (a) the Board Resolution, supplemental indenture hereto or Officers’Certificate
establishing the form of the Securities of that Series or of Securities within that Series and the
terms of the Securities of that Series or of Securities within that Series, (b) an Officers’
Certificate complying with Section 10.04 and (c) an Opinion of Counsel complying with Section
10.04. The Trustee shall have the right to decline to authenticate and deliver any Securities of
such Series: (a) if the Trustee, being advised by counsel, determines that such action may not be
taken lawfully; or (b) if the Trustee’s board of directors or trustees, executive committee or a
trust committee of directors and/or vice-presidents shall determine in good faith that such action
would expose the Trustee to personal liability to Holders of any then outstanding Series of
Securities. The Trustee may appoint an authenticating agent acceptable to the Company to
authenticate Securities. An authenticating agent may authenticate Securities whenever the Trustee
may do so. Each reference in this Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating agent has the same rights as an Agent to deal with
the Company or an Affiliate of the Company.




     Section 2.04 Registrar and Paying Agent. The Company shall maintain, with respect to each
Series of Securities, at the place or places specified with respect to such Series pursuant to
Section 2.02, an office or agency where Securities of such Series may be presented or surrendered
for payment (“Paying Agent”), where Securities of such Series may be surrendered for registration
of transfer or exchange (“Registrar”) and where notices and demands to or upon the Company in
respect of the Securities of such Series and this Indenture may be served (“Service Agent”). The
Registrar shall keep a register with respect to each Series of Securities and to their transfer and
exchange. The Company will give prompt written notice to the Trustee of the name and address, and
any change in the name or address, of each Registrar, Paying Agent or Service Agent. If at any time
the Company shall fail to maintain any such required Registrar, Paying Agent or Service Agent or
shall fail to furnish the Trustee with the name and address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee,
and the Company hereby appoints the Trustee as its agent to receive all such presentations,
surrenders, notices and demands. The Company may also from time to time designate one or more
co-registrars, additional paying agents or additional service agents and may from time to time
rescind such designations; provided, however, that no such designation or rescission shall in any
manner relieve the Company of its obligations to maintain a Registrar, Paying Agent and Service
Agent in each place so specified pursuant to Section 2.02 for Securities of any Series for such
purposes. The Company will give prompt written notice to the Trustee of any such designation or
rescission and of any change in the name or address of any such co-registrar, additional paying
agent or additional service agent. The term “Registrar” includes any co-registrar; the term “Paying
Agent” includes any additional paying agent; and the term “Service Agent” includes any additional
service agent. The Company hereby appoints the Trustee the initial Registrar, Paying Agent and
Service Agent for each Series unless another Registrar, Paying Agent or Service Agent, as the case
may be, is appointed prior to the time Securities of that Series are first issued.



     Section 2.05 Paying Agent to Hold Money in Trust. The Company shall require each Paying Agent
other than the Trustee to agree in writing that the Paying Agent will hold in trust, for the
benefit of Holders of any Series of Securities, or the Trustee, all money held by the Paying Agent
for the payment of principal
of or interest on the Series of Securities, and will notify the Trustee of any default by the
Company in making any such payment. While any such default continues, the Trustee may require a
Paying Agent to



7









 




pay all money held by it to the Trustee. The Company at any time may require a
Paying Agent to pay all money held by it to the Trustee. Upon payment over to the Trustee, the
Paying Agent (if other than the Company or a Subsidiary of the Company) shall have no further
liability for the money. If the Company or a Subsidiary of the Company acts as Paying Agent, it
shall segregate and hold in a separate trust fund for the benefit of Holders of any Series of
Securities all money held by it as Paying Agent.




     Section 2.06 Holder Lists. 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 each
Series of Securities and shall otherwise comply with TIA Section 312(a). If the Trustee is not the
Registrar, the Company shall furnish to the Trustee at least ten (10) days before each interest
payment date and at such other times as the Trustee may request in writing a list, in such form and
as of such date as the Trustee may reasonably require, of the names and addresses of Holders of
each Series of Securities.



     Section 2.07 Transfer and Exchange. Where Securities of a Series are presented to the
Registrar or a co-registrar with a request to register a transfer or to exchange them for an equal
principal amount of Securities of the same Series, the Registrar shall register the transfer or
make the exchange if its requirements for such transactions are met. To permit registrations of
transfers and exchanges, the Trustee shall authenticate Securities at the Registrar’s request. No
service charge shall be made for any registration of transfer or exchange (except as otherwise
expressly permitted herein), but the Company may require payment of a sum sufficient to cover any
transfer tax or similar governmental charge payable in connection therewith (other than any such
transfer tax or similar governmental charge payable upon exchanges pursuant to Sections 2.11, 3.06
or 9.06). Neither the Company nor the Registrar shall be required (a) to issue, register the
transfer of, or exchange Securities of any Series for the period beginning at the opening of
business fifteen days immediately preceding the mailing of a notice of redemption of Securities of
that Series selected for redemption and ending at the close of business on the day of such mailing,
or (b) to register the transfer of or exchange Securities of any Series selected, called or being
called for redemption as a whole or the portion being redeemed of any such Securities selected,
called or being called for redemption in part.



     Section 2.08 Mutilated, Destroyed, Lost and Stolen Securities.



     (a) If any mutilated Security is surrendered to the Trustee, the Company shall execute
and the Trustee shall authenticate and make available for delivery in exchange therefor a new
Security of the same Series and of like tenor and principal amount and bearing a number not
contemporaneously outstanding. If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security and (ii) such
security or indemnity as may be required by them to save each of them and any agent of either of
them harmless, then, in the absence of notice to the Company or the Trustee that such Security has
been acquired by a protected purchaser, the Company shall execute and upon its request the Trustee
shall authenticate and make available for delivery, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same Series and of like tenor and principal amount and bearing a
number not contemporaneously outstanding. In case any such mutilated, destroyed, lost or stolen
Security has become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.



     (b) Upon the issuance of any new Security under this Section, the Company may require
the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto and any other expenses (including the fees and expenses of the Trustee)
connected therewith. Every new Security of any Series issued pursuant to this Section in lieu of
any destroyed, lost or stolen Security shall constitute an original additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Security shall be at any
time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that Series duly issued hereunder. The
provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights
and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen
Securities.



     Section 2.09 Outstanding Securities. The Securities outstanding at any time are all the
Securities authenticated by the Trustee except for those canceled by it, those delivered to it for
cancellation, those



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reductions in the interest on a Global Security effected by the Trustee in
accordance with the provisions hereof and those described in this Section as not outstanding. If a
Security is replaced pursuant to Section 2.08, it ceases to be outstanding until the Trustee
receives proof satisfactory to it that the replaced Security is held by a protected purchaser. If
the Paying Agent (other than the Company, a Subsidiary of the Company or an Affiliate of the
Company) holds on the Maturity of Securities of a Series money sufficient to pay such Securities
payable on that date, then on and after that date such Securities of the Series cease to be
outstanding and interest on them ceases to accrue. A Security does not cease to be outstanding
because the Company or an Affiliate of the Company holds the Security. In determining whether the
Holders of the requisite principal amount of outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, the principal amount of a Discount
Security that shall be deemed to be outstanding for such purposes shall be the amount of the
principal thereof that would be due and payable as of the date of such determination upon a
declaration of acceleration of the Maturity thereof pursuant to Section 6.02.




     Section 2.10 Treasury Securities. In determining whether the Holders of the required principal
amount of Securities of a Series have concurred in any request, demand, authorization, direction,
notice, consent or waiver, Securities of a Series owned by the Company shall be disregarded, except
that for the purposes of determining whether the Trustee shall be protected in relying on any such
request, demand, authorization, direction, notice, consent or waiver, only Securities of a Series
that the Trustee knows are so owned shall be so disregarded.



     Section 2.11 Temporary Securities. Until definitive Securities are ready for delivery, the
Company may prepare and the Trustee shall authenticate temporary Securities upon a Company Order.
Temporary Securities shall be substantially in the form of definitive Securities but may have
variations that the Company considers appropriate for temporary Securities. Without unreasonable
delay, the Company shall prepare and the Trustee upon request shall authenticate definitive
Securities of the same Series and date of maturity in exchange for temporary Securities. Until so
exchanged, temporary securities shall have the same rights under this Indenture as the definitive
Securities.



     Section 2.12 Cancellation. The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee any Securities
surrendered to them for registration of transfer, exchange or payment. The Trustee shall cancel all
Securities surrendered for registration of transfer, exchange, payment, replacement or cancellation
in accordance with its customary procedures and deliver such canceled Securities to the Company,
unless the Company otherwise directs; provided that the Trustee shall not be required to destroy
Securities. The Company may not issue new Securities to replace Securities that it has paid or
delivered to the Trustee for cancellation.



     Section 2.13 Defaulted Interest. If the Company defaults in a payment of interest on a Series
of Securities, it shall pay the defaulted interest, plus, to the extent permitted by law, any
interest payable on the defaulted interest, to the persons who are Holders of the Series on a
subsequent special record date. The Company shall fix the record date and payment date. At least
ten (10) days before the record date, the Company shall mail to the Trustee and to each Holder of
the Series a notice that states the record date, the payment date and the amount of interest to be
paid. The Company may pay defaulted interest in any other lawful manner.



     Section 2.14 Global Securities.



     (a) Terms of Securities. A Board Resolution, a supplemental indenture hereto or an
Officers’ Certificate shall establish whether the Securities of a Series shall be issued in whole
or in part in the form of one or more Global Securities and the Depository for such Global Security
or Securities.



     (b) Transfer and Exchange. Notwithstanding any provisions to the contrary contained in
Section 2.07 of the Indenture and in addition thereto, any Global Security shall be exchangeable
pursuant to Section 2.07 of the Indenture for Securities registered in the names of Holders other
than the Depository for such Security or its nominee only if (i) such Depository notifies the
Company that it is unwilling or unable to
continue as Depository for such Global Security or if at any time such Depository ceases to be a
clearing agency registered under the Exchange Act, and, in either case, the Company fails to
appoint a successor




9











 





Depository registered as a clearing agency under the Exchange Act within 90 days of such event,
(ii) the Company executes and delivers to the Trustee an Officers’ Certificate to the effect that
such Global Security shall be so exchangeable or (iii) an Event of Default with respect to the
Securities represented by such Global Security shall have happened and be continuing. Any Global
Security that is exchangeable pursuant to the preceding sentence shall be exchangeable for
Securities registered in such names as the Depository shall direct in writing in an aggregate
principal amount equal to the principal amount of the Global Security with like tenor and terms.




     (c) Except as provided in this Section 2.14(c), a Global Security may not be
transferred except as a whole by the Depository with respect to such Global Security to a nominee
of such Depository, by a nominee of such Depository to such Depository or another nominee of such
Depository or by the Depository or any such nominee to a successor Depository or a nominee of such
a successor Depository.



     (d) Legend. Any Global Security issued hereunder shall bear a legend in
substantially the following form:



     (e) “This Security is a Global Security within the meaning of the Indenture
hereinafter referred to and is registered in the name of the Depository or a nominee of the
Depository. This Security is exchangeable for Securities registered in the name of a person other
than the Depository or its nominee only in the limited circumstances described in the Indenture,
and may not be transferred except as a whole by the Depository to a nominee of the Depository, by a
nominee of the Depository to the Depository or another nominee of the Depository or by the
Depository or any such nominee to a successor Depository or a nominee of such a successor
Depository.”



     (f) Acts of Holders. The Depository, as a Holder, may appoint agents and otherwise
authorize participants to give or take any request, demand, authorization, direction, notice,
consent, waiver or other action which a Holder is entitled to give or take under the Indenture.



     (g) Payments. Notwithstanding the other provisions of this Indenture, unless
otherwise specified as contemplated by Section 2.02, payment of the principal of and interest, if
any, on any Global Security shall be made to the Holder thereof.



     (h) Consents, Declaration and Directions. Except as provided in Section 2.14(g),
the Company, the Trustee and any Agent shall treat a person as the Holder of such principal amount
of outstanding Securities of such Series represented by a Global Security as shall be specified in
a written statement of the Depository with respect to such Global Security, for purposes of
obtaining any consents, declarations, waivers or directions required to be given by the Holders
pursuant to this Indenture.



     (i) The Depository or its nominee, as registered owner of a Global Security, shall
be the Holder of such Global Security for all purposes under the Indenture and the Securities, and
owners of beneficial interests in a Global Security shall hold such interests pursuant to the
Applicable Procedures. Accordingly, any such owner’s beneficial interest in a Global Security will
be shown only on, and the transfer of such interest shall be effected only through, records
maintained by the Depositary or its nominee and such owners of beneficial interests in a Global
Security will not be considered the owners or holders thereof.



          Section 2.15 CUSIP Numbers. The Company in issuing the Securities may use “CUSIP”
numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP” numbers in notices of
redemption as a convenience to Holders; provided that any such notice may state that no
representation is made as to the correctness of such numbers either as printed on the Securities or
as contained in any notice of a redemption and that reliance may be placed only on the other
elements of identification printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers. The Company shall promptly notify the Trustee of any
change in “CUSIP” numbers of which the Company becomes aware.




10









 






ARTICLE III

REDEMPTION





          Section 3.01 Notice to Trustee. The Company may, with respect to any Series of
Securities, reserve the right to redeem and pay the Series of Securities or may covenant to redeem
and pay the Series of Securities or any part thereof prior to the Stated Maturity thereof at such
time and on such terms as provided for in such Securities. If a Series of Securities is redeemable
and the Company wants or is obligated to redeem prior to the Stated Maturity thereof all or part of
the Series of Securities pursuant to the terms of such Securities, it shall notify the Trustee of
the redemption date and the principal amount of Series of Securities to be redeemed.



          Section 3.02 Selection of Securities to be Redeemed. Unless otherwise indicated for a
particular Series by a Board Resolution, a supplemental indenture or an Officers’ Certificate, if
less than all the Securities of a Series are to be redeemed, the Trustee shall select the
Securities of the Series to be redeemed in any manner that the Trustee deems fair and appropriate.
The Trustee shall make the selection from Securities of the Series outstanding not previously
called for redemption. The Trustee may select for redemption portions of the principal of
Securities of the Series that have denominations larger than $1,000. Securities of the Series and
portions of them it selects shall be in amounts of $1,000 or whole multiples of $1,000 or, with
respect to Securities of any Series issuable in other denominations pursuant to Section 2.02(j),
the minimum principal denomination for each Series and integral multiples thereof. Provisions of
this Indenture that apply to Securities of a Series called for redemption also apply to portions of
Securities of that Series called for redemption.



          Section 3.03 Notice of Redemption. Unless otherwise indicated for a particular Series
by Board Resolution, a supplemental indenture hereto or an Officers’ Certificate, at least 30 days
but not more than 60 days before a redemption date, the Company shall mail a notice of redemption
by first-class mail to each Holder whose Securities are to be redeemed and, if any Bearer
Securities are outstanding, publish on one occasion a notice in an Authorized Newspaper. The notice
shall identify the Securities of the Series to be redeemed and shall state:




     (i) the redemption date;




     (ii) the redemption price;




     (iii) the name and address of the Paying Agent;




     (iv) that Securities of the Series called for redemption must be
surrendered to the Paying Agent to collect the redemption price;




     (v) that interest on Securities of the Series called for redemption
ceases to accrue on and after the redemption date;




     (vi) the CUSIP number, if any; and




     (vii) any other information as may be required by the terms of the
particular Series or the Securities of a Series being redeemed.



               At the Company’s request, the Trustee shall give the notice of redemption in the
Company’s name and at its expense.



11









 





          Section 3.04 Effect of Notice of Redemption. Once notice of redemption is mailed or
published as provided in Section 3.03, Securities of a Series called for redemption become due and
payable on the redemption date and at the redemption price. A notice of redemption may not be
conditional. Upon surrender to the Paying Agent, such Securities shall be paid at the redemption
price plus accrued interest to the redemption date; provided that installments of interest whose
Stated Maturity is on or prior to the redemption date shall be payable to the Holders of such
Securities (or one or more predecessor Securities) registered at the close of business on the
relevant record date therefor according to their terms and the terms of this Indenture.



          Section 3.05 Deposit of Redemption Price. On or before 10:00 a.m., New York City time,
on the redemption date, the Company shall deposit with the Paying Agent money sufficient to pay the
redemption price of and accrued interest, if any, on all Securities to be redeemed on that date.



          Section 3.06 Securities Redeemed in Part. Upon surrender of a Security that is
redeemed in part, the Trustee shall authenticate for the Holder a new Security of the same Series
and the same maturity equal in principal amount to the unredeemed portion of the Security
surrendered.



ARTICLE IV

COVENANTS




          Section 4.01 Payment of Principal and Interest. The Company covenants and agrees for
the benefit of the Holders of each Series of Securities that it will duly and punctually pay the
principal of and interest, if any, on the Securities of that Series in accordance with the terms of
such Securities and this Indenture.



          Section 4.02 SEC Reports. The Company shall, so long as any of the Securities are
outstanding, electronically file with the Commission the annual, quarterly and other periodic
reports that the Company is required to file with the Commission pursuant to Sections 13 and 15(d)
of the Exchange Act. The Company also shall comply with the other provisions of TIA Section 314(a).
Delivery of any reports, information and documents to the Trustee is for informational purposes
only and the Trustee’s receipt of such shall not constitute constructive notice of any information
contained therein or determinable from information contained therein, including the Company’s
compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely
exclusively on an Officers’ Certificate).



          Section 4.03 Compliance Certificate. The Company shall, so long as any of the
Securities are outstanding, deliver to the Trustee, within 120 days after the end of each fiscal
year of the Company, an Officers’ Certificate stating whether or not to the knowledge of the
signers thereof the Company is in default in the performance and observance of any of the terms,
provisions and conditions hereof (without regard to any period of grace or requirement of notice
provided hereunder), and if a Default or Event of Default shall have occurred, specifying all such
Defaults or Events of Default and the nature and status thereof of which they may have knowledge.
The Company shall, so long as any of the Securities are outstanding, deliver to the Trustee, within
thirty (30) days after becoming aware of any Default or Event of Default, an Officers’ Certificate
specifying such Default or Event of Default and what action the Company is taking or proposes to
take with respect thereto.



          Section 4.04 Stay, Extension and Usury Laws. The Company covenants (to the extent that
it may lawfully do so) that it will not at any time insist upon, plead or in any manner whatsoever
claim or take the benefit or advantage of, any stay, extension or usury law wherever enacted, now
or at any time hereafter in force, which may affect the covenants or the performance of this
Indenture or the Securities and the Company (to the extent it may lawfully do so) hereby expressly
waives all benefit or advantage of any such law and covenants that it will not, by resort to any
such law, hinder, delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such law has been enacted.





12









 





ARTICLE V

SUCCESSORS





          Section 5.01 When Company May Merge, Etc. The Company shall not consolidate with or
merge with or into, or convey, transfer or lease all or substantially all of its properties and
assets to, any person (a “successor person”) unless:



     (a) the Company is the surviving corporation or the successor person (if other than
the Company) is organized and validly existing under the laws of any U.S. domestic jurisdiction and
expressly assumes the Company’s obligations on the Securities and under this Indenture; and



     (b) immediately after giving effect to the transaction, no Default or Event of
Default shall have occurred and be continuing.



          The Company shall deliver to the Trustee prior to the consummation of the proposed
transaction an Officers’ Certificate to the foregoing effect and an Opinion of Counsel stating that
the proposed transaction and any supplemental indenture comply with this Indenture.



          Section 5.02 Successor Corporation Substituted. Upon any consolidation or merger, or
any sale, lease, conveyance or other disposition of all or substantially all of the assets of the
Company in accordance with Section 5.01, the successor corporation formed by such consolidation or
into or with which the Company is merged or to which such sale, lease, conveyance or other
disposition is made shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture with the same effect as if such successor person has
been named as the Company herein; provided, however, that the predecessor Company in the case of a
sale, conveyance or other disposition (other than a lease) shall be released from all obligations
and covenants under this Indenture and the Securities.



ARTICLE VI

DEFAULTS AND REMEDIES




          Section 6.01 Events of Default.



          “Event of Default,” wherever used herein with respect to Securities of any Series,
means any one of the following events, unless in the establishing Board Resolution, supplemental
indenture or Officers’ Certificate, it is provided that such Series shall not have the benefit of
said Event of Default:



               (a) default in the payment of any interest on any Security of that Series when it becomes due
and payable, and continuance of such default for a period of 30 days (unless the entire amount of
such payment is deposited by the Company with the Trustee or with a Paying Agent prior to the
expiration of such period of 30 days); or



               (b) default in the payment of principal of any Security of that Series at its Maturity; or



               (c) default in the performance or breach of any covenant or warranty of the Company in this
Indenture (other than a covenant or warranty for which the consequences of nonperformance or breach
are addressed elsewhere in this Section 6.01 and other than a covenant or warranty that has been
included in this Indenture solely for the benefit of Series of Securities other than that Series),
which default continues uncured for a period of 90 days after there has been given, by registered
or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders
of not less than a majority in principal amount of the outstanding Securities of that Series a
written notice specifying such default or breach and requiring it to be remedied and stating that
such notice is a “Notice of Default” hereunder; or



               (d) the Company pursuant to or within the meaning of any Bankruptcy Law: (i) commences a
voluntary case or proceeding; (ii) consents to the entry of an order for relief against it in an
involuntary case, (iii) consents to the appointment of a Custodian of it or for all or
substantially all of its property, (iv) makes a general assignment for the benefit of its
creditors, or (v) makes an admission by writing that it is generally unable to pay its debts as the
same become due; or



               (e) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(i) is for relief against the Company in an involuntary case, (ii) appoints a Custodian of the
Company or for all



13









 







or substantially all of its property, or (iii) orders the liquidation of the Company, and the
order or decree remains unstayed and in effect for 90 days; or



               (f) any other Event of Default provided with respect to Securities of that Series, which is
specified in a Board Resolution, a supplemental indenture hereto or an Officers’ Certificate, in
accordance with Section 2.02(n).



          The term “Bankruptcy Law” means Title 11 of the U.S. Code or any similar federal or
state law for the relief of debtors. The term “Custodian” means any receiver, trustee, assignee,
liquidator or similar official under any Bankruptcy Law.



          Section 6.02 Acceleration of Maturity; Rescission and Annulment. If an Event of
Default with respect to Securities of any Series at the time outstanding occurs and is continuing
(other than an Event of Default referred to in Section 6.1(d) or (e)), then in every such case the
Trustee or the Holders of not less than a majority in principal amount of the outstanding
Securities of that Series may declare the principal amount (or, if any Securities of that Series
are Discount Securities, such portion of the principal amount as may be specified in the terms of
such Securities) of and accrued and unpaid interest, if any, on all of the Securities of that
Series to be due and payable immediately, by a notice in writing to the Company (and to the Trustee
if given by Holders), and upon any such declaration such principal amount (or specified amount) and
accrued and unpaid interest, if any, shall become immediately due and payable. If an Event of
Default specified in Section 6.1(d) or (e) shall occur, the principal amount (or specified amount)
of and accrued and unpaid interest, if any, on all outstanding Securities shall ipso facto become
and be immediately due and payable without any declaration or other act on the part of the Trustee
or any Holder. At any time after such a declaration of acceleration with respect to any Series has
been made and before a judgment or decree for payment of the money due has been obtained by the
Trustee as hereinafter in this Article provided, the Holders of a majority in principal amount of
the outstanding Securities of that Series, by written notice to the Company and the Trustee, may
rescind and annul such declaration and its consequences if all Events of Default with respect to
Securities of that Series, other than the non-payment of the principal and interest, if any, of
Securities of that Series which have become due solely by such declaration of acceleration, have
been cured or waived as provided in Section 6.13. No such rescission shall affect any subsequent
Default or impair any right consequent thereon.



          Section 6.03 Collection of Indebtedness and Suits for Enforcement by Trustee.



          The Company covenants that if:



     (a) default is made in the payment of any interest on any Security when such
interest becomes due and payable and such default continues for a period of 30 days, or



     (b) default is made in the payment of principal of any Security at the Maturity
thereof, then the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such Securities for principal
and interest and, to the extent that payment of such interest shall be legally enforceable,
interest on any overdue principal and any overdue interest at the rate or rates prescribed therefor
in such Securities and, in addition thereto, such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.



          If the Company fails to pay such amounts forthwith upon such demand, the Trustee, in
its own name and as trustee of an express trust, may institute a judicial proceeding for the
collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree
and may enforce the same against the Company or any other obligor upon such Securities and collect
the moneys adjudged or deemed to be payable in the manner provided by law out of the property of
the Company or any other obligor upon such Securities, wherever situated.



          If an Event of Default with respect to any Securities of any Series occurs and is
continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the
rights of the Holders of Securities of such Series by such appropriate judicial proceedings as the
Trustee shall deem most effectual



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to protect and enforce any such rights, whether for the specific enforcement of any covenant or
agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.



          Section 6.04 Trustee May File Proofs of Claim. In case of the pendency of any
receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their creditors, the Trustee
(irrespective of whether the principal of the Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made
any demand on the Company for the payment of overdue principal or interest) shall be entitled and
empowered, by intervention in such proceeding or otherwise, (a) to file and prove a claim for the
whole amount of principal and interest owing and unpaid in respect of the Securities and to file
such 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) and of the Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable or deliverable on any such claims
and to distribute the same, and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding 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 it for the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel, and any other amounts due the Trustee under Section 7.07. Nothing herein contained shall
be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of
any Holder in any such proceeding.



          Section 6.05 Trustee May Enforce Claims Without Possession of Securities. All rights
of action and claims under this Indenture or the Securities may be prosecuted and enforced by the
Trustee without the possession of any of the Securities or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment shall, after provision for the
payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel, be for the ratable benefit of the Holders of the Securities in respect of which
such judgment has been recovered.



          Section 6.06 Application of Money Collected.



          Any money collected by the Trustee pursuant to this Article shall be applied in the
following order, at the date or dates fixed by the Trustee and, in case of the distribution of such
money on account of principal or interest, upon presentation of the Securities and the notation
thereon of the payment if only partially paid and upon surrender thereof if fully paid:



          First: To the payment of all amounts due the Trustee under Section 7.07; and



          Second: To the payment of the amounts then due and unpaid for principal of and
interest on the Securities in respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind, according to the amounts due and
payable on such Securities for principal and interest, respectively; and



          Third: To the Company.



          Section 6.07 Limitation on Suits. No Holder of any Security of any Series shall have
any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or
for the appointment of a receiver or trustee, or for any other remedy hereunder, unless:



     (a) such Holder has previously given written notice to the Trustee of a continuing
Event of Default with respect to the Securities of that Series;



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     (b) the Holders of at least a majority in principal amount of the outstanding
Securities of that Series shall have made written request to the Trustee to institute proceedings
in respect of such Event of Default in its own name as Trustee hereunder;



     (c) such Holder or Holders have offered to the Trustee reasonable indemnity against
the costs, expenses and liabilities to be incurred in compliance with such request;



     (d) the Trustee for 60 days after its receipt of such notice, request and offer of
indemnity has failed to institute any such proceeding; and



     (e) no direction inconsistent with such written request has been given to the
Trustee during such 60-day period by the Holders of a majority in principal amount of the
outstanding Securities of that Series; it being understood and intended that no one or more of such
Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of such Holders, or to
obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any
right under this Indenture, except in the manner herein provided and for the equal and ratable
benefit of all such Holders.



          Section 6.08 Unconditional Right of Holders to Receive Principal and Interest.
Notwithstanding any other provision in this Indenture, the Holder of any Security shall have the
right, which is absolute and unconditional, to receive payment of the principal of and interest, if
any, on such Security on the Stated Maturity or Stated Maturities expressed in such Security (or,
in the case of redemption, on the redemption date) and to institute suit for the enforcement of any
such payment, and such rights shall not be impaired without the consent of such Holder.



          Section 6.09 Restoration of Rights and Remedies. If the Trustee or any Holder 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 shall be restored severally and respectively to their
former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding had been instituted.



          Section 6.10 Rights and Remedies Cumulative. Except as otherwise provided with respect
to the replacement or payment of mutilated, destroyed, lost or stolen Securities in Section 2.08,
no right or remedy herein conferred upon or reserved to the Trustee or to the Holders 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, to the extent permitted by law, prevent the
concurrent assertion or employment of any other appropriate right or remedy.



          Section 6.11 Delay or Omission Not Waiver. No delay or omission of the Trustee or of
any Holder of any Securities 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 may be exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders, as the case may be.



          Section 6.12 Control by Holders. The Holders of a majority in principal amount of the
outstanding Securities of any Series shall have the right to 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 the Trustee, with respect to the Securities of such Series, provided that:



     (a) such direction shall not be in conflict with any rule of law or with this
Indenture,



     (b) the Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction, and



16









 





     (c) subject to the provisions of Section 6.01, the Trustee shall have the right to
decline to follow any such direction if the Trustee in good faith shall, by a Responsible Officer
of the Trustee, determine that the proceeding so directed would involve the Trustee in personal
liability.



          Section 6.13 Waiver of Past Defaults. The Holders of not less than a majority in
principal amount of the outstanding Securities of any Series may on behalf of the Holders of all
the Securities of such Series waive any past Default hereunder with respect to such Series and its
consequences, except a Default (i) in the payment of the principal of or interest on any Security
of such Series (provided, however, that the Holders of a majority in principal amount of the
outstanding Securities of any Series may rescind an acceleration and its consequences, including
any related payment default that resulted from such acceleration) or (ii) in respect of a covenant
or provision hereof which cannot be modified or amended without the consent of the Holder of each
outstanding Security of such Series affected. Upon any such waiver, such Default shall cease to
exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or other Default or
impair any right consequent thereon.



          Section 6.14 Undertaking for Costs. All parties to this Indenture agree, and each
Holder of any Security by his acceptance thereof shall be deemed to have agreed, that any court may
in its discretion require, 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, suffered or omitted by it as
Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such
suit, and that such court may in its discretion assess reasonable costs, including reasonable
attorneys’ fees, against any party litigant in such suit, having due regard to the merits and good
faith of the claims or defenses made by such party litigant; but the provisions of this Section
shall not apply to any suit instituted by the Company, to any suit instituted by the Trustee, to
any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in
principal amount of the outstanding Securities of any Series, or to any suit instituted by any
Holder for the enforcement of the payment of the principal of or interest on any Security on or
after the Stated Maturity or Stated Maturities expressed in such Security (or, in the case of
redemption, on the redemption date).



ARTICLE VII

TRUSTEE




          Section 7.01 Duties of Trustee.



     (a) If an Event of Default has occurred and is continuing, the Trustee shall
exercise 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 such person’s own affairs.



     (b) Except during the continuance of an Event of Default:




     (i) The Trustee need perform only those duties that are specifically
set forth in this Indenture and no others.




     (ii) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon Officers’ Certificates or Opinions of Counsel
furnished to the Trustee and conforming to the requirements of this Indenture;
however, in the case of any such Officers’ Certificates or Opinions of Counsel
which by any provisions hereof are specifically required to be furnished to the
Trustee, the Trustee shall examine such Officers’ Certificates and Opinions of
Counsel to determine whether or not they conform to the requirements of this
Indenture.



     (c) 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:




	 	(i)	 	This paragraph does not limit the effect of paragraph (b) of this Section,
	 
	 	(ii)	 	the Trustee shall not be liable for any error of judgment made in good faith by a Responsible




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	 	 	 	Officer, unless it is proved that the Trustee was negligent in ascertaining
the pertinent facts, and






	 	(iii)	 	the Trustee shall not be liable with respect to any action taken, suffered or omitted to
be taken by it with respect to Securities of any Series in good faith in accordance with
the direction of the Holders of a majority in principal amount of the outstanding
Securities of such Series relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Indenture with respect to the Securities of such
Series.





     (d) Every provision of this Indenture that in any way relates to the Trustee is
subject to paragraph (a), (b) and (c) of this Section.



     (e) The Trustee may refuse to perform any duty or exercise any right or power at
the request or direction of any Holder unless it receives indemnity satisfactory to it against any
loss, liability or expense.



     (f) The Trustee shall not be liable for interest on any money received by it except
as the Trustee may agree in writing with the Company. Money held in trust by the Trustee need not
be segregated from other funds except to the extent required by law.



     (g) No provision of this Indenture shall require the Trustee to risk its own funds
or otherwise incur any financial liability in the performance of any of its duties, or in the
exercise of any of its rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk is not reasonably assured to it.



     (h) The Paying Agent, the Registrar and any Service Agent or authenticating agent
shall be entitled to the protections, immunities and standard of care as are set forth in
paragraphs (a), (b) and (c) of this Section with respect to the Trustee.



          Section 7.02 Rights of Trustee.



     (a) The Trustee may rely on and shall be protected in acting or refraining from
acting upon any document believed by it to be genuine and to have been signed or presented by the
proper person. The Trustee need not investigate any fact or matter stated in the document.



     (b) Before the Trustee acts or refrains from acting, it may require an Officers’
Certificate. The Trustee shall not be liable for any action it takes or omits to take in good faith
in reliance on such Officers’ Certificate.



     (c) The Trustee may act through agents and shall not be responsible for the
misconduct or negligence of any agent appointed with due care. No Depository shall be deemed an
agent of the Trustee, and the Trustee shall not be responsible for any act or omission by any
Depository.



     (d) The Trustee shall not be liable for any action it takes or omits to take in
good faith which it believes to be authorized or within its rights or powers, provided that the
Trustee’s conduct does not constitute negligence or bad faith.



     (e) The Trustee may consult with counsel, and the advice of such counsel or any
Opinion of Counsel shall be full and complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder without negligence and in good faith and in reliance
thereon.



     (f) The Trustee shall be under no obligation to exercise any of the rights or
powers vested in it by this Indenture at the request or direction of any of the Holders of
Securities unless such Holders shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred by it in compliance with such
request or direction.



18









 





     (g) 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.



     (h) The Trustee shall not be deemed to have notice of any Default or Event of
Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written
notice of any event which is in fact such a default is received by the Trustee at the Corporate
Trust Office of the Trustee, and such notice references the Securities generally or the Securities
of a particular Series and this Indenture.



     (i) The permissive rights of the Trustee enumerated herein shall not be construed
as duties.



          Section 7.03 Individual Rights of Trustee. The Trustee in its individual or any other
capacity may become the owner or pledgee of Securities and may otherwise deal with the Company or
an Affiliate of the Company with the same rights it would have if it were not Trustee. Any Agent
may do the same with like rights. The Trustee is also subject to Sections 7.10 and 7.11.



          Section 7.04 Trustee’s Disclaimer. The Trustee makes no representation as to the
validity or adequacy of this Indenture or the Securities, it shall not be accountable for the
Company’s use of the proceeds from the Securities, and it shall not be responsible for any
statement in the Securities other than its authentication.



          Section 7.05 Notice of Defaults. If a Default or Event of Default occurs and is
continuing with respect to the Securities of any Series and if it is known to a Responsible Officer
of the Trustee, the Trustee shall mail to each Holder of the Securities of that Series and, if any
Bearer Securities are outstanding, publish on one occasion in an Authorized Newspaper, notice of a
Default or Event of Default within 90 days after it occurs or, if later, after a Responsible
Officer of the Trustee has knowledge of such Default or Event of Default. Except in the case of a
Default or Event of Default in payment of principal of or interest on any Security of any Series,
the Trustee may withhold the notice if and so long as its corporate trust committee or a committee
of its Responsible Officers in good faith determines that withholding the notice is in the
interests of Holders of that Series.



          Section 7.06 Reports by Trustee to Holders. Within 60 days after May 15 in each year,
the Trustee shall transmit by mail to all Holders, as their names and addresses appear on the
register kept by the Registrar and, if any Bearer Securities are outstanding, publish in an
Authorized Newspaper, a brief report dated as of such May 15, in accordance with, and to the extent
required under, TIA Section 313. A copy of each report at the time of its mailing to Holders of any
Series shall be filed with the SEC and each stock exchange on which the Securities of that Series
are listed. The Company shall promptly notify the Trustee when Securities of any Series are listed
on any stock exchange.



          Section 7.07 Compensation and Indemnity. The Company shall pay to the Trustee from
time to time compensation for its services as the Company and the Trustee shall from time to time
agree upon in writing. The Trustee’s compensation shall not be limited by any law on compensation
of a trustee of an express trust. The Company shall reimburse the Trustee upon request for all
reasonable out-of-pocket expenses incurred by it. Such expenses shall include the reasonable
compensation and expenses of the Trustee’s agents and counsel. The Company shall indemnify each of
the Trustee and any predecessor Trustee against any loss, liability or expense (including the cost
of defending itself), including taxes (other than taxes based upon, measured by or determined by
the income of the Trustee) incurred by it except as set forth in this Section 7.07 in the
performance of its duties under this Indenture as Trustee or Agent. The Trustee shall notify the
Company promptly of any claim for which it may seek indemnity. The Company shall defend the claim
and the Trustee shall cooperate in the defense. The Trustee may have one separate counsel and the
Company shall pay the reasonable fees and expenses of such counsel. The Company need not pay for
any settlement made without its consent, which consent shall not be unreasonably withheld. This
indemnification shall apply to officers, directors, employees, shareholders and agents of the
Trustee. The Company need not reimburse any expense or indemnify against any loss or liability
incurred by the Trustee or by any officer, director, employee, shareholder or agent of the Trustee
through the negligence or bad faith of any such persons. To secure the Company’s payment
obligations in this Section, the Trustee



19









 







shall have a lien prior to the Securities of any Series on all money or property held or collected
by the Trustee, except that held in trust to pay principal of and interest on particular Securities
of that Series. When the Trustee incurs expenses or renders services after an Event of Default
specified in Section 6.01(d) or (e) occurs, the expenses and the compensation for the services are
intended to constitute expenses of administration under any Bankruptcy Law. The provisions of this
Section shall survive the resignation or removal of the Trustee and the termination of this
Indenture.



          Section 7.08 Replacement of Trustee. A resignation or removal of the Trustee and
appointment of a successor Trustee shall become effective only upon the successor Trustee’s
acceptance of appointment as provided in this Section. The Trustee may resign with respect to the
Securities of one or more Series by so notifying the Company at least 30 days prior to the date of
the proposed resignation. The Holders of a majority in principal amount of the Securities of any
Series may remove the Trustee with respect to that Series by so notifying the Trustee and the
Company. The Company may remove the Trustee with respect to Securities of one or more Series if:



     (a) the Trustee fails to comply with Section 7.10;



     (b) the Trustee is adjudged bankrupt or insolvent or an order for relief is entered
with respect to the Trustee under any Bankruptcy Law;



     (c) a Custodian or public officer takes charge of the Trustee or its property; or



     (d) the Trustee becomes incapable of acting.



          If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee
for any reason, the Company shall promptly appoint a successor Trustee.



          If a successor Trustee with respect to the Securities of any one or more Series does
not take office within 60 days after the retiring Trustee resigns or is removed, the retiring
Trustee, the Company or the Holders of at least a majority in principal amount of the Securities of
the applicable Series may petition any court of competent jurisdiction for the appointment of a
successor Trustee.



          A successor Trustee shall deliver a written acceptance of its appointment to the
retiring Trustee and to the Company. Immediately after that, the retiring Trustee shall transfer
all property held by it as Trustee to the successor Trustee subject to the lien provided for in
Section 7.07, the resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee with respect to each
Series of Securities for which it is acting as Trustee under this Indenture. A successor Trustee
shall mail a notice of its succession to each Holder of each such Series and, if any Bearer
Securities are outstanding, publish such notice on one occasion in an Authorized Newspaper.
Notwithstanding replacement of the Trustee pursuant to this Section 7.08, the Company’s obligations
under Section 7.07 hereof shall continue for the benefit of the retiring Trustee with respect to
expenses and liabilities incurred by it prior to the date of such replacement.



          Section 7.09 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, the successor corporation without any further act shall be the successor
Trustee.



          Section 7.10 Eligibility; Disqualification. This Indenture shall always have a Trustee
who satisfies the requirements of TIA Section 310(a)(1), (2) and (5). The Trustee shall comply with
TIA Section 310(b).



          Section 7.11 Preferential Collection of Claims Against Company. The Trustee is subject
to 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.



ARTICLE VIII

SATISFACTION AND DISCHARGE; DEFEASANCE




          Section 8.01 Satisfaction and Discharge of Indenture.



20









 





          This Indenture shall upon Company Order cease to be of further effect (except as
hereinafter provided in this Section 8.01), and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of this Indenture, when



     (a) any of the following shall have occurred: (i) no Securities have been issued hereunder;
(ii) all Securities theretofore authenticated and delivered (other than Securities that have been
destroyed, lost or stolen and that have been replaced or paid) have been delivered to the Trustee
for cancellation; or (iii) all such Securities not theretofore delivered to the Trustee for
cancellation (1) have become due and payable, or (2) will become due and payable at their Stated
Maturity within one year, or (3) are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and
at the expense, of the Company; and the Company has irrevocably deposited or caused to be deposited
with the Trustee as trust funds in trust an amount sufficient for the purpose of paying and
discharging the entire indebtedness on such Securities not theretofore delivered to the Trustee for
cancellation, for principal and interest to the date of such deposit (in the case of Securities
which have become due and payable on or prior to the date of such deposit) or to the Stated
Maturity or redemption date, as the case may be;



     (b) the Company has paid or caused to be paid all other sums payable hereunder by
the Company; and



     (c) the Company has delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been complied with.



          Notwithstanding the satisfaction and discharge of this Indenture, the obligations of
the Company to the Trustee under Section 7.07 and, if money shall have been deposited with the
Trustee pursuant to clause (a) of this Section, the provisions of Sections 2.04 , 2.05 , 2.07,
2.08, 8.01, 8.02 and 8.05 shall survive.



          Section 8.02 Application of Trust Funds; Indemnification.



     (a) Subject to the provisions of Section 8.05, all money deposited with the Trustee
pursuant to Section 8.01, all money and U.S. Government Obligations or Foreign Government
Obligations deposited with the Trustee pursuant to Section 8.03 or 8.04 and all money received by
the Trustee in respect of U.S. Government Obligations or Foreign Government Obligations deposited
with the Trustee pursuant to Section 8.03 or 8.04, shall be held in trust and applied by it, in
accordance with the provisions of the Securities and this Indenture, to the payment, either
directly or through any Paying Agent (other than the Company acting as its own Paying Agent) as the
Trustee may determine, to the persons entitled thereto, of the principal and interest for whose
payment such money has been deposited with or received by the Trustee or analogous payments as
contemplated by Sections 8.03 or 8.04.



     (b) The Company shall pay and shall indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against U.S. Government Obligations or Foreign Government
Obligations deposited pursuant to Sections 8.03 or 8.04 or the interest and principal received in
respect of such obligations other than any payable by or on behalf of Holders.



     (c) The Trustee shall deliver or pay to the Company from time to time upon Company
Request any U.S. Government Obligations or Foreign Government Obligations or money held by it as
provided in Sections 8.03 or 8.04 which, in the opinion of a nationally recognized firm of
independent certified public accountants expressed in a written certification thereof delivered to
the Trustee, are then in excess of the amount thereof which then would have been required to be
deposited for the purpose for which such U.S. Government Obligations or Foreign Government
Obligations or money were deposited or received. This provision shall not authorize the sale by the
Trustee of any U.S. Government Obligations or Foreign Government Obligations held under this
Indenture.



          Section 8.03 Legal Defeasance of Securities of any Series. Unless this Section 8.03 is
otherwise specified, pursuant to Section 2.02(s), to be inapplicable to Securities of any Series,
the Company shall be deemed to have paid and discharged the entire indebtedness on all the
outstanding Securities of any Series



21









 







on the 91st day after the date of the deposit referred to in subparagraph (d) hereof, and the
provisions of this Indenture, as it relates to such outstanding Securities of such Series, shall no
longer be in effect (and the Trustee, at the expense of the Company, shall, at Company Request,
execute proper instruments acknowledging the same), except as to:



     (a) the rights of Holders of Securities of such Series to receive, from the trust
funds described in subparagraph (d) hereof, (i) payment of the principal of and each installment of
principal of and interest on the outstanding Securities of such Series on the Stated Maturity of
such principal or installment of principal or interest, and (ii) the benefit of any mandatory
sinking fund payments applicable to the Securities of such Series on the day on which such payments
are due and payable in accordance with the terms of this Indenture and the Securities of such
Series; and



     (b) the provisions of Sections 2.04, 2.05, 2.07, 2.08, 8.02, 8.03 and 8.05; and



     (c) the rights, powers, trust and immunities of the Trustee hereunder;



     provided that, the following conditions shall have been satisfied:



     (d) with reference to this Section 8.03, the Company shall have deposited or caused
to be irrevocably deposited (except as provided in Section 8.02(c)) with the Trustee as trust funds
in trust for the purpose of making the following payments, specifically pledged as security for and
dedicated solely to the benefit of the Holders of such Securities (i) in the case of Securities of
such Series denominated in Dollars, cash in Dollars and/or U.S. Government Obligations, or (ii) in
the case of Securities of such Series denominated in a Foreign Currency (other than a composite
currency), money and/or Foreign Government Obligations, which through the payment of interest and
principal in respect thereof in accordance with their terms, will provide (without reinvestment and
assuming no tax liability will be imposed on such Trustee), not later than one day before the due
date of any payment of money, an amount in cash, sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge each installment of principal of and interest, if
any, on and any mandatory sinking fund payments in respect of all the Securities of such Series on
the dates such installments of interest or principal and such sinking fund payments are due;



     (e) such deposit will not result in a breach or violation of, or constitute a
default under, this Indenture or any other agreement or instrument to which the Company is a party
or by which it is bound;



     (f) no Default or Event of Default with respect to the Securities of such Series
shall have occurred and be continuing on the date of such deposit or during the period ending on
the 91st day after such date;



     (g) the Company shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel to the effect that (i) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling, or (ii) since the date of execution of this
Indenture, there has been a change in the applicable Federal income tax law, in either case to the
effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders of the
Securities of such Series will not recognize income, gain or loss for Federal income tax purposes
as a result of such deposit, defeasance and discharge and will be subject to Federal income tax on
the same amounts and in the same manner and at the same times as would have been the case if such
deposit, defeasance and discharge had not occurred;



     (h) the Company shall have delivered to the Trustee an Officers’ Certificate
stating that the deposit was not made by the Company with the intent of preferring the Holders of
the Securities of such Series over any other creditors of the Company or with the intent of
defeating, hindering, delaying or defrauding any other creditors of the Company;



     (i) the Company shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that all conditions precedent provided for relating to the
defeasance contemplated by this Section have been complied with; and



22









 





     (j) such defeasance shall not result in the trust arising from such deposit
constituting an investment company within the meaning of the Investment Company Act of 1940, as
amended, unless such trust shall be registered under such Act or exempt from registration
thereunder.



          Section 8.04 Covenant Defeasance. Unless this Section 8.04 is otherwise specified,
pursuant to Section 2.02(s), to be inapplicable to Securities of any Series, on and after the 91st
day after the date of the deposit referred to in subparagraph (a) hereof, the Company may omit to
comply with respect to the Securities of any Series with any term, provision or condition set forth
under Sections 4.02, 4.03, and 5.01 as well as any additional covenants specified in a supplemental
indenture for such Series of Securities or a Board Resolution or an Officers’ Certificate delivered
pursuant to Section 2.02 (and the failure to comply with any such covenants shall not constitute a
Default or Event of Default with respect to such Series under Section 6.01) and the occurrence of
any event specified in a supplemental indenture for such Series of Securities or a Board Resolution
or an Officers’ Certificate delivered pursuant to Section 2.02 and designated as an Event of
Default shall not constitute a Default or Event of Default hereunder, with respect to the
Securities of such Series, provided that the following conditions shall have been satisfied:



     (a) with reference to this Section 8.04, the Company has deposited or caused to be
irrevocably deposited (except as provided in Section 8.02(c)) with the Trustee as trust funds in
trust for the purpose of making the following payments specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such Securities (i) in the case of Securities of
such Series denominated in Dollars, cash in Dollars and/or U.S. Government Obligations, or (ii) in
the case of Securities of such Series denominated in a Foreign Currency (other than a composite
currency), money and/or Foreign Government Obligations, which through the payment of interest and
principal in respect thereof in accordance with their terms, will provide (and without reinvestment
and assuming no tax liability will be imposed on such Trustee), not later than one day before the
due date of any payment of money, an amount in cash, sufficient, in the opinion of a nationally
recognized firm of independent certified public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge each installment of principal of and
interest, if any, on and any mandatory sinking fund payments in respect of the Securities of such
Series on the dates such installments of interest or principal and such sinking fund payments are
due;



     (b) such deposit will not result in a breach or violation of, or constitute a
default under, this Indenture or any other agreement or instrument to which the Company is a party
or by which it is bound;



     (c) no Default or Event of Default with respect to the Securities of such Series
shall have occurred and be continuing on the date of such deposit or during the period ending on
the 91st day after such date;



     (d) the Company shall have delivered to the Trustee an Opinion of Counsel to the
effect that Holders of the Securities of such Series will not recognize income, gain or loss for
federal income tax purposes as a result of such deposit and 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 deposit and covenant defeasance had not occurred;



     (e) the Company shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the
covenant defeasance contemplated by this Section have been complied with; and



     (f) Such defeasance shall not result in the trust arising from such deposit
constituting an investment company within the meaning of the Investment Company Act of 1940, as
amended, unless such trust shall be registered under such Act or exempt from registration
thereunder.



          Section 8.05 Repayment to Company. The Trustee and the Paying Agent shall pay to the
Company upon written request any money held by them for the payment of principal and interest that
remains unclaimed for two years, and after such time, Holders entitled to the money must look to
the Company for payment as general creditors unless an applicable abandoned property law designates
another person.



          Section 8.06 Reinstatement. If the Trustee or the Paying Agent is unable to apply any
money deposited with respect to Securities of any series in accordance with Section 8.01 by reason
of any legal



23









 







proceeding or by reason of any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the obligations of the Company under this
Indenture with respect to the Securities of such series and under the Securities of such series
shall be revived and reinstated as though no deposit had occurred pursuant to Section 8.01 until
such time as the Trustee or the Paying Agent is permitted to apply all such money in accordance
with Section 8.01; provided, however, that if the Company has made any payment of principal of,
premium (if any) or interest on any Additional Amounts with respect to any Securities because of
the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders
of such Securities to receive such payment from the money held by the Trustee or the Paying Agent.



ARTICLE IX

AMENDMENTS AND WAIVERS




          Section 9.01 Without Consent of Holders. The Company and the Trustee may amend or
supplement this Indenture or the Securities of one or more Series without the consent of any
Holder:



     (a) to evidence the succession of another person to the Company under this
Indenture and the Securities and the assumption by any such successor person of the obligations of
the Company hereunder and under the Securities;



     (b) to add or remove covenants of the Company for the benefit of the Holders of all
or any series of Securities (and if such covenants are to be for the benefit of less than all
series of Securities, stating that such covenants are expressly being included for the benefit of
such series) or to surrender any right or power herein conferred upon the Company provided such
action does not adversely affect the interests of the Company;



     (c) to add any additional Events of Default;



     (d) to add to or change any of the provisions of this Indenture to such extent as
shall be necessary to permit or facilitate the issuance of Securities in bearer form, registrable
or not registrable as to principal, and with or without interest coupons, or to permit or
facilitate the issuance of Securities in uncertificated form;



     (e) to add to, change or eliminate any of the provisions of this Indenture in
respect of one or more series of Securities, provided that any such addition, change or elimination
(A) shall neither (i) apply to any Security of any series created prior to the execution of such
supplemental indenture and entitled to the benefit of such provision nor (ii) modify the rights of
the Holder of any such Security with respect to such provision or (B) shall become effective only
when there is no such Security Outstanding;



     (f) to establish the forms or terms of the Securities of any series issued pursuant
to the terms hereof;



     (g) to cure any ambiguity or correct any inconsistency in this Indenture;



     (h) to evidence and provide for the acceptance of appointment hereunder by a
successor Trustee with respect to the Securities of one or more series and to add to or change any
of the provisions of this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee;



     (i) to qualify this Indenture under the Trust Indenture Act;



     (j) to provide for uncertificated securities in addition to certificated
securities;



     (k) to supplement any provisions of this Indenture necessary to permit or
facilitate the defeasance and discharge of any series of Securities, provided that such action does
not adversely affect the interests of the Holders of Securities of such series or any other series;
and



     (l) to comply with the rules or regulations of any securities exchange or automated
quotation system on which any of the Securities may be listed or traded.



24









 





          Section 9.02 With Consent of Holders. The Company and the Trustee may enter into a
supplemental indenture with the written consent of the Holders of at least a majority in principal
amount of the outstanding Securities of each Series affected by such supplemental indenture
(including consents obtained in connection with a tender offer or exchange offer for the Securities
of such Series), for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of any supplemental indenture or of
modifying in any manner the rights of the Holders of each such Series. Except as provided in
Section 6.13, the Holders of at least a majority in principal amount of the outstanding Securities
of any Series by notice to the Trustee (including consents obtained in connection with a tender
offer or exchange offer for the Securities of such Series) may waive compliance by the Company with
any provision of this Indenture or the Securities with respect to such Series. It shall not be
necessary for the consent of the Holders of Securities under this Section 9.02 to approve the
particular form of any proposed supplemental indenture or waiver, but it shall be sufficient if
such consent approves the substance thereof. After a supplemental indenture or waiver under this
section becomes effective, the Company shall mail to the Holders of Securities affected thereby
and, if any Bearer Securities affected thereby are outstanding, publish on one occasion in an
Authorized Newspaper, a notice briefly describing the supplemental indenture or waiver. Any failure
by the Company to mail or publish such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental indenture or waiver.



          Section 9.03 Limitations. Without the consent of each Holder affected, an amendment or
waiver may not:



     (a) reduce the amount of Securities whose Holders must consent to an amendment,
supplement or waiver;



     (b) reduce the rate of or extend the time for payment of interest (including
default interest) on any Security;



     (c) reduce the principal or change the Stated Maturity of any Security or reduce
the amount of, or postpone the date fixed for, the payment of any sinking fund or analogous
obligation;



     (d) reduce the principal amount of Discount Securities payable upon acceleration of
the maturity thereof;



     (e) waive a Default or Event of Default in the payment of the principal of or
interest, if any, on any Security (except a rescission of acceleration of the Securities of any
Series by the Holders of at least a majority in principal amount of the outstanding Securities of
such Series and a waiver of the payment default that resulted from such acceleration);



     (f) make the principal of or interest, if any, on any Security payable in any
currency other than that stated in the Security;



     (g) make any change in Sections 6.08, 6.13, or 9.03; or



     (h) waive a redemption payment with respect to any Security.



          Section 9.04 Compliance with Trust Indenture Act. Every amendment to this Indenture or
the Securities of one or more Series shall be set forth in a supplemental indenture hereto that
complies with the TIA as then in effect.



          Section 9.05 Revocation and Effect of Consents. Until an amendment is set forth in a
supplemental indenture or a waiver becomes effective, a consent to it by a Holder of a Security is
a continuing consent by the Holder and every subsequent Holder of a Security or portion of a
Security that evidences the same debt as the consenting Holder’s Security, even if notation of the
consent is not made on any Security. However, any such Holder or subsequent Holder may revoke the
consent as to his Security or portion of a Security if the Trustee receives the notice of
revocation before the date of the supplemental indenture or the date the waiver becomes effective.
Any amendment or waiver once effective shall bind every Holder of each Series



25









 







affected by such amendment or waiver unless it is of the type described in any of clauses
(a) through (h) of Section 9.03. In that case, the amendment or waiver shall bind each Holder of a
Security who has consented to it and every subsequent Holder of a Security or portion of a Security
that evidences the same debt as the consenting Holder’s Security.



          Section 9.06 Notation on or Exchange of Securities. The Trustee may place an
appropriate notation about an amendment or waiver on any Security of any Series thereafter
authenticated. The Company in exchange for Securities of that Series may issue and the Trustee
shall authenticate upon request new Securities of that Series that reflect the amendment or waiver.



          Section 9.07 Trustee Protected. In executing, or accepting the additional trusts
created by, any supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive, in addition to the
documents required by Section 10.04, and (subject to Section 7.01) shall be fully protected in
relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee shall sign all supplemental indentures,
except that the Trustee need not sign any supplemental indenture that adversely affects its rights.



ARTICLE X

MISCELLANEOUS




          Section 10.01 Trust Indenture Act Controls. If any provision of this Indenture limits,
qualifies or conflicts with another provision which is required or deemed to be included in this
Indenture by the TIA, such required or deemed provision shall control.



          Section 10.02 Notices.




     (a) Any notice or communication by the Company or the Trustee to the other, or by a
Holder to the Company or the Trustee, is duly given if in writing and delivered in person or mailed
by first-class mail or sent by telecopier transmission addressed as follows:





if to the Company:

Majesco Entertainment Company

160 Raritan Center Parkway

Edison, New Jersey 08837

Attention: Chief Counsel

Telephone: (732) 225-8910

Facsimile: (732) 225-5451

if to the Trustee:

[          ]






     (b) The Company or the Trustee by notice to the other may designate additional or
different addresses for subsequent notices or communications. Any notice or communication to a
Holder shall be mailed by first-class mail to his address shown on the register kept by the
Registrar and, if any Bearer Securities are outstanding, published in an Authorized Newspaper.
Failure to mail a notice or communication to a Holder of any Series or any defect in it shall not
affect its sufficiency with respect to other Holders of that or any other Series. If a notice or
communication is mailed or published in the manner provided above, within the time prescribed, it
is duly given, whether or not the Holder receives it. If the Company mails a notice or
communication to Holders, it shall mail a copy to the Trustee and each Agent at the same time.



     (c) Any notice or demand that by any provision of this Indenture is required or
permitted to be given or served by the Company may, at the Company’s written request received by
the Trustee not fewer than five (5) Business Days prior (or such shorter period of time as may be
acceptable to the Trustee) to the date on which such notice must be given or served, be given or
served by the Trustee in the name of and at the expense of the Company.



26









 





          Section 10.03 Communication by Holders with Other Holders. Holders of any Series may
communicate pursuant to TIA Section 312(b) with other Holders of that Series or any other Series
with respect to their rights under this Indenture or the Securities of that Series or all Series.
The Company, the Trustee, the Registrar and anyone else shall have the protection of TIA Section
312(c).



          Section 10.04 Certificate and Opinion as to Conditions Precedent. Upon any request or
application by the Company to the Trustee to take any action under this Indenture, the Company
shall furnish to the Trustee:



     (a) an Officers’ Certificate stating that, in the opinion of the signers, all
conditions precedent, if any, provided for in this Indenture relating to the proposed action have
been complied with; and



     (b) an Opinion of Counsel stating that, in the opinion of such counsel, all such
conditions precedent have been complied with.



          Section 10.05 Statements Required in Certificate or Opinion. Each certificate or
opinion with respect to compliance with a condition or covenant provided for in this Indenture
(other than a certificate provided pursuant to TIA Section 314(a)(4)) shall comply with the
provisions of TIA Section 314(e) and shall include:



     (a) a statement that the person making such certificate or opinion has read such
covenant or condition;



     (b) 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;



     (c) a statement that, in the opinion of such person, he has made such examination or
investigation as is necessary to enable him to express an informed opinion as to whether or not
such covenant or condition has been complied with; and



     (d) a statement as to whether or not, in the opinion of such person, such condition
or covenant has been complied with.



          Section 10.06 Rules by Trustee and Agents. The Trustee may make reasonable rules for
action by or a meeting of Holders of one or more Series. Any Agent may make reasonable rules and
set reasonable requirements for its functions.



          Section 10.07 Legal Holidays. Unless otherwise provided by Board Resolution, Officers’
Certificate or supplemental indenture hereto for a particular Series, a “Legal Holiday” is any day
that is not a Business Day. If a payment date is a Legal Holiday at a place of payment, payment may
be made at that place on the next succeeding day that is not a Legal Holiday, and no interest shall
accrue for the intervening period.



          Section 10.08 No Recourse Against Others. A director, officer, employee or
stockholder, as such, of the Company shall not have any liability for any obligations of the
Company under the Securities or the Indenture or for any claim based on, in respect of or by reason
of such obligations or their creation. Each Holder by accepting a Security waives and releases all
such liability. The waiver and release are part of the consideration for the issue of the
Securities.



          Section 10.09 Counterparts. This Indenture may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together shall constitute one and the same
agreement.



          Section 10.10 Governing Laws. This Indenture and the Securities will be governed by,
and construed in accordance with, the internal laws of the State of New York, without regard to
conflict of law principles that would result in the application of any law other than the laws of
the State of New York.



27









 





          Section 10.11 No Adverse Interpretation of Other Agreements. This Indenture may not be
used to interpret another indenture, loan or debt agreement of the Company or a Subsidiary of the
Company. Any such indenture, loan or debt agreement may not be used to interpret this Indenture.



          Section 10.12 Successors. All agreements of the Company in this Indenture and the
Securities shall bind its successor. All agreements of the Trustee in this Indenture shall bind its
successor.



          Section 10.13 Severability. In case any provision in this Indenture or in the
Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.



          Section 10.14 Table of Contents, Headings, Etc. The Table of Contents, Cross-Reference
Table, 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 hereof, and shall in no way modify
or restrict any of the terms or provisions hereof.



          Section 10.15 Securities in a Foreign Currency. Unless otherwise specified in a Board
Resolution, a supplemental indenture hereto or an Officers’ Certificate delivered pursuant to
Section 2.02 of this Indenture with respect to a particular Series of Securities, whenever for
purposes of this Indenture any action may be taken by the Holders of a specified percentage in
aggregate principal amount of Securities of all Series or all Series affected by a particular
action at the time outstanding and, at such time, there are outstanding Securities of any Series
which are denominated in a coin or currency other than Dollars, then the principal amount of
Securities of such Series which shall be deemed to be outstanding for the purpose of taking such
action shall be that amount of Dollars that could be obtained for such amount at the Market
Exchange Rate at such time. For purposes of this Section 10.15, “Market Exchange Rate” shall mean
the noon Dollar buying rate in New York City for cable transfers of that currency as published by
the Federal Reserve Bank of New York. If such Market Exchange Rate is not available for any reason
with respect to such currency, the Trustee shall use, in its sole discretion and without liability
on its part, such quotation of the Federal Reserve Bank of New York as of the most recent available
date, or quotations from one or more major banks in The City of New York or in the country of issue
of the currency in question or such other quotations as the Trustee, upon consultation with the
Company, shall deem appropriate. The provisions of this paragraph shall apply in determining the
equivalent principal amount in respect of Securities of a Series denominated in currency other than
Dollars in connection with any action taken by Holders of Securities pursuant to the terms of this
Indenture. All decisions and determinations of the Trustee regarding the Market Exchange Rate or
any alternative determination provided for in the preceding paragraph shall be in its sole
discretion and shall, in the absence of manifest error, to the extent permitted by law, be
conclusive for all purposes and irrevocably binding upon the Company and all Holders.



          Section 10.16 Judgment Currency. The Company agrees, to the fullest extent that it may
effectively do so under applicable law, that (a) if for the purpose of obtaining judgment in any
court it is necessary to convert the sum due in respect of the principal of or interest or other
amount on the Securities of any Series (the “Required Currency”) into a currency in which a
judgment will be rendered (the “Judgment Currency”), the rate of exchange used shall be the rate at
which in accordance with normal banking procedures the Trustee could purchase in The City of New
York the Required Currency with the Judgment Currency on the day on which final unappealable
judgment is entered, unless such day is not a New York Banking Day, then the rate of exchange used
shall be the rate at which in accordance with normal banking procedures the Trustee could purchase
in The City of New York the Required Currency with the Judgment Currency on the New York Banking
Day preceding the day on which final unappealable judgment is entered and (b) its obligations under
this Indenture to make payments in the Required Currency (i) shall not be discharged or satisfied
by any tender, any recovery pursuant to any judgment (whether or not entered in accordance with
subsection (a)), in any currency other than the Required Currency, except to the extent that such
tender or recovery shall result in the actual receipt, by the payee, of the full amount of the
Required Currency expressed to be payable in respect of such payments, (ii) shall be enforceable as
an alternative or additional cause of action for the purpose of recovering in the Required Currency
the amount, if any, by which such actual receipt shall fall short of the full amount of the
Required Currency so expressed to be payable, and (iii) shall not be affected by judgment being
obtained for any other sum due under this Indenture. For purposes of the foregoing, “New York
Banking Day” means any day except a Saturday,



28









 







Sunday or a legal holiday in The City of New York on which banking institutions are authorized or
required by law, regulation or executive order to close.



ARTICLE XI

SINKING FUNDS




          Section 11.01 Applicability of Article. The provisions of this Article shall be
applicable to any sinking fund for the retirement of the Securities of a Series, except as
otherwise permitted or required by any form of Security of such Series issued pursuant to this
Indenture. The minimum amount of any sinking fund payment provided for by the terms of the
Securities of any Series is herein referred to as a “ mandatory sinking fund payment “ and any
other amount provided for by the terms of Securities of such Series is herein referred to as an “
optional sinking fund payment .” If provided for by the terms of Securities of any Series, the cash
amount of any sinking fund payment may be subject to reduction as provided in Section 11.02. Each
sinking fund payment shall be applied to the redemption of Securities of any Series as provided for
by the terms of the Securities of such Series.



          Section 11.02 Satisfaction of Sinking Fund Payments with Securities. The Company may,
in satisfaction of all or any part of any sinking fund payment with respect to the Securities of
any Series to be made pursuant to the terms of such Securities (1) deliver outstanding Securities
of such Series to which such sinking fund payment is applicable (other than any of such Securities
previously called for mandatory sinking fund redemption) and (2) apply as credit Securities of such
Series to which such sinking fund payment is applicable and which have been repurchased by the
Company or redeemed either at the election of the Company pursuant to the terms of such Series of
Securities (except pursuant to any mandatory sinking fund) or through the application of permitted
optional sinking fund payments or other optional redemptions pursuant to the terms of such
Securities, provided that such Securities have not been previously so credited. Such Securities
shall be received by the Trustee, together with an Officers’ Certificate with respect thereto, not
later than 15 days prior to the date on which the Trustee begins the process of selecting
Securities for redemption, and shall be credited for such purpose by the Trustee at the price
specified in such Securities for redemption through operation of the sinking fund and the amount of
such sinking fund payment shall be reduced accordingly. If as a result of the delivery or credit of
Securities in lieu of cash payments pursuant to this Section 11.02, the principal amount of
Securities of such Series to be redeemed in order to exhaust the aforesaid cash payment shall be
less than $100,000, the Trustee need not call Securities of such Series for redemption, except upon
receipt of a Company Order that such action be taken, and such cash payment shall be held by the
Trustee or a Paying Agent and applied to the next succeeding sinking fund payment, provided,
however, that the Trustee or such Paying Agent shall from time to time upon receipt of a Company
Order pay over and deliver to the Company any cash payment so being held by the Trustee or such
Paying Agent upon delivery by the Company to the Trustee of Securities of that Series purchased by
the Company having an unpaid principal amount equal to the cash payment required to be released to
the Company.



          Section 11.03 Redemption of Securities for Sinking Fund. Not less than 45 days (unless
otherwise indicated in the Board Resolution, supplemental indenture or Officers’ Certificate in
respect of a particular Series of Securities) prior to each sinking fund payment date for any
Series of Securities, the Company will deliver to the Trustee an Officers’ Certificate specifying
the amount of the next ensuing mandatory sinking fund payment for that Series pursuant to the terms
of that Series, the portion thereof, if any, which is to be satisfied by payment of cash and the
portion thereof, if any, which is to be satisfied by delivering and crediting of Securities of that
Series pursuant to Section 11.02, and the optional amount, if any, to be added in cash to the next
ensuing mandatory sinking fund payment, and the Company shall thereupon be obligated to pay the
amount therein specified. Not less than 30 days (unless otherwise indicated in the Board
Resolution, Officers’ Certificate or supplemental indenture in respect of a particular Series of
Securities) before each such sinking fund payment date the Trustee shall select the Securities to
be redeemed upon such sinking fund payment date in the manner specified in Section 3.02 and cause
notice of the redemption thereof to be given in the name of and at the expense of the Company in
the manner provided in Section 3.03. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections 3.04, 3.05 and 3.06.



29









 





               IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed and
attested, all as of the day and year first above written.



MAJESCO ENTERTAINMENT COMPANY




	 	 	 	 	 
	By:
	 	 	 	 
	Name:

	 	 

	 	 
	Title:
	 	 	 	 
	 
	 	 	 	 
	[          ],	 	 
	as Trustee	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	Name:

	 	 

	 	 
	Title:
	 	 	 	 







30