EXHIBIT 4.4
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ACTIVANT SOLUTIONS INC.,
as Issuer
AND
THE GUARANTORS NAMED HEREIN
AND
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
as Trustee
_________________________
SECOND SUPPLEMENTAL INDENTURE
Dated as of September 13, 2005
to
Indenture
Dated as of June 27, 2003, as Supplemented by the
First Supplemental Indenture Dated as of April 20, 2005
__________________________
$157,000,000
10 1/2% Senior Notes
due 2011
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SECOND SUPPLEMENTAL INDENTURE, dated as of September 13, 2005, among
ACTIVANT SOLUTIONS INC., a Delaware corporation (the "Company"), SPEEDWARE
HOLDINGS, INC., a Delaware corporation ("Speedware Holdings"), SPEEDWARE USA,
INC., a New York corporation ("Speedware USA"), PROPHET 21, INC., a Delaware
corporation ("P21"), PROPHET 21 INVESTMENT CORPORATION, a Delaware corporation
("P21 Investment"), PROPHET 21 CANADA, INC., a Delaware corporation ("▇▇▇
▇▇▇▇▇▇"), PROPHET 21 NEW JERSEY, INC., a New Jersey corporation ("P21 New
Jersey"), DISTRIBUTOR INFORMATION SYSTEMS CORPORATION, a Connecticut corporation
("DISC"), TRADE SERVICE SYSTEMS, INC., a Pennsylvania corporation ("TSS"), and
STANPAK SYSTEMS, INC., a Massachusetts corporation ("Stanpak", and together with
Speedware Holdings, Speedware USA, ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇
▇▇▇▇▇▇, DISC and TSS, the "New Subsidiary Guarantors"), and ▇▇▇▇▇ FARGO BANK,
NATIONAL ASSOCIATION, as successor by merger to ▇▇▇▇▇ Fargo Bank Minnesota,
N.A., as Trustee (the "Trustee").
WHEREAS, the Company and certain subsidiary guarantors have heretofore
executed and delivered to the Trustee an Indenture dated as of June 27, 2003 (as
supplemented, the "Indenture"), providing for the issuance of $157,000,000
aggregate principal amount of 10 1/2% Senior Notes due 2011 (the "Notes"); and
WHEREAS, the Company, the New Subsidiary Guarantors and the Trustee
desire by this Second Supplemental Indenture, pursuant to and as contemplated by
the provisions of the Indenture relating to the addition of guarantors,
including, without limitation, Sections 4.05 and 10.01 thereof, to add the New
Subsidiary Guarantors as guarantors pursuant to the terms of the Indenture; and
WHEREAS, the execution and delivery of this Second Supplemental
Indenture has been authorized by resolutions of the Board of Directors of each
of the Company and the New Subsidiary Guarantors; and
WHEREAS, all conditions and requirements necessary to make this Second
Supplemental Indenture a valid, binding legal instrument in accordance with its
terms have been performed and fulfilled by the parties hereto and the execution
and delivery thereof have been in all respects duly authorized by the parties
hereto.
NOW, THEREFORE, in consideration of the above premises, each party
agrees, for the benefit of the others and for the equal and ratable benefit of
the holders of the Notes, as follows:
ARTICLE I.
ASSUMPTION OF OBLIGATIONS AS GUARANTOR
Section 1.01. Assumption. Each of the New Subsidiary Guarantors hereby expressly
and unconditionally assumes each and every covenant, agreement and undertaking
of a Guarantor in the Indenture as of the date of this Second Supplemental
Indenture, and also hereby expressly and unconditionally assumes each and every
covenant, agreement and undertaking of a Guarantor in each Note outstanding on
the date of this Second Supplemental Indenture and any Additional Notes issued
pursuant to the Indenture.
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ARTICLE II.
MISCELLANEOUS PROVISIONS
Section 2.01. Terms Defined. For all purposes of this Second Supplemental
Indenture, except as otherwise defined or unless the context otherwise requires,
terms used in capitalized form in this Second Supplemental Indenture and defined
in the Indenture have the meanings specified in the Indenture.
Section 2.02. Indenture. Except as amended hereby, the Indenture and the Notes
are in all respects ratified and confirmed and all the terms shall remain in
full force and effect.
Section 2.03. Governing Law. THIS SECOND SUPPLEMENTAL INDENTURE SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE
APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
Section 2.04. Successors. All agreements of the Company and the New Subsidiary
Guarantors in this Second Supplemental Indenture and the Notes shall bind their
successors. All agreements of the Trustee in this Second Supplemental Indenture
shall bind its successors.
Section 2.05. Duplicate Originals. All parties may sign any number of copies of
this Second Supplemental Indenture. Each signed copy shall be an original, but
all of them together shall represent the same agreement.
Section 2.06. Severability. In case any one or more of the provisions in this
Second Supplemental Indenture or in the Notes shall be held invalid, illegal or
unenforceable, in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions shall not in any way be affected or impaired thereby, it being
intended that all of the provisions hereof shall be enforceable to the full
extent permitted by law.
Section 2.07. Trustee Disclaimer. The Trustee accepts the amendment of the
Indenture effected by this Second Supplemental Indenture and agrees to execute
the trust created by the Indenture as hereby amended, but on the terms and
conditions set forth in the Indenture, including the terms and provisions
defining and limiting the liabilities and responsibilities of the Trustee, which
terms and provisions shall in like manner define and limit its liabilities and
responsibilities in the performance of the trust created by the Indenture as
hereby amended, and without limiting the generality of the foregoing, the
Trustee shall not be responsible in any manner whatsoever for or with respect to
any of the recitals or statements contained herein, all of which recitals or
statements are made solely by the Company and the New Subsidiary Guarantors, or
for or with respect to (i) the validity or sufficiency of this Second
Supplemental Indenture or any of the terms or provisions hereof, (ii) the proper
authorization hereof by the Company and the New Subsidiary Guarantors by
corporate action or otherwise, (iii) the due execution hereof by the Company and
the New Subsidiary Guarantors or (iv) the consequences (direct or indirect and
whether deliberate or inadvertent) of any amendment herein provided for, and the
Trustee makes no representation with respect to any such matters.
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Section 2.08. Effectiveness. This Second Supplemental Indenture shall become
effective, once executed, upon receipt by the Trustee of a certificate of an
appropriate officer of the Company and an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP,
counsel to the Company, each of which shall be dated no earlier than the date
hereof.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed as of the day and year written above.
ACTIVANT SOLUTIONS INC., as Issuer
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇, ▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇, ▇▇
Title: Secretary
SPEEDWARE HOLDINGS, INC., as a New
Subsidiary Guarantor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇, ▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇, ▇▇
Title: Secretary
SPEEDWARE USA, INC., as a New Subsidiary
Gurantor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇, ▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇, ▇▇
Title: Secretary
PROPHET 21, INC., as a New Subsidiary
Guarantor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇, ▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇, ▇▇
Title: Secretary
PROPHET 21 INVESTMENT CORPORATION, as a
New Subsidiary Guarantor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇, ▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇, ▇▇
Title: Secretary
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PROPHET 21 CANADA, INC., as a New
Subsidiary Guarantor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇, ▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇, ▇▇
Title: Secretary
PROPHET 21 NEW JERSEY, INC., as a New
Subsidiary Guarantor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇, ▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇, ▇▇
Title: Secretary
DISTRIBUTOR INFORMATION SYSTEMS CORPORATION,
as a New Subsidiary Guarantor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇, ▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇, ▇▇
Title: Secretary
TRADE SERVICE SYSTEMS, INC., as a New
Subsidiary Guarantor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇, ▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇, ▇▇
Title: Secretary
STANPAK SYSTEMS, INC., as a New Subsidiary
Guarantor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇, ▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇, ▇▇
Title: Secretary
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▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION, as
Trustee
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Assistant Vice President
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