EXHIBIT 4.3
ACTIVANT SOLUTIONS HOLDINGS INC.,
as Issuer
and
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
as Trustee
___________________________
FIRST SUPPLEMENTAL INDENTURE
Dated as of April 13, 2006
to
Indenture
Dated as of October 17, 2005
___________________________
$40,000,000
Senior Floating Rate PIK Notes
due 2011
FIRST SUPPLEMENTAL INDENTURE, dated as of April 13, 2006 (this
"Supplemental Indenture"), among ACTIVANT SOLUTIONS HOLDINGS INC., a Delaware
corporation (the "Company"), and ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION, as
Trustee (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Company has heretofore executed and delivered to the
Trustee an Indenture dated as of October 17, 2005, (the "Indenture"), providing
for the issuance of the Company's Senior Floating Rate PIK Notes due 2011 (the
"Notes");
WHEREAS, as of the date hereof, $40.0 million aggregate principal
amount of the Notes are outstanding and no other Notes have been issued or are
outstanding pursuant to the Indenture;
WHEREAS, Section 10.02 of the Indenture provides that the Company and
the Trustee may, with the requisite consents of the holders, enter into a
supplemental indenture for the purpose of amending certain provisions of the
Indenture;
WHEREAS, the Company has offered to purchase for cash any and all of
the outstanding Notes upon the terms and subject to the conditions set forth in
the Offer to Purchase and Consent Solicitation Statement, dated March 30, 2006
(as the same may be amended or supplemented from time to time, the "Statement"),
and in the related Consent and Letter of Transmittal (as the same may be amended
or supplemented from time to time, together with the Statement, the "Offer"),
from each Holder (as such term is defined in the Statement) of such Notes;
WHEREAS, the Offer is conditioned upon, among other things, certain
amendments to the Indenture and to the Notes set forth in Article Two, Article
Three and Article Four of this Supplemental Indenture (the "Amendments") having
been approved by Holders of at least a majority of the outstanding principal
amount of the Notes (and a supplemental indenture in respect thereof having been
executed and delivered), provided that the Amendments will only become operative
immediately prior to the Merger (as defined in the Statement) if all validly
tendered Notes are accepted for purchase pursuant to the Offer upon consummation
of the Merger (the "Acceptance");
WHEREAS, the Company has received and delivered to the Trustee the
consents from Holders of a majority of the outstanding principal amount of the
Notes to effect the Amendments;
WHEREAS, the Company has been authorized by a resolution of its Board
of Directors to enter into this Supplemental Indenture; and
WHEREAS, all acts, conditions, proceedings and requirements necessary
to make this Supplemental Indenture a valid, binding and legal agreement
enforceable in accordance with its terms for the purposes expressed herein, in
accordance with its terms, have been duly done, performed and fulfilled by the
parties hereto and the execution and delivery thereof have been in all respects
duly authorized by the parties hereto.
2
NOW, THEREFORE, in consideration of the premises and the covenants
and agreements contained herein, and for other good and valuable consideration
the receipt of which is hereby acknowledged, the Company and the Trustee hereby
agree as follows:
ARTICLE ONE
SECTION 1.01. Definitions.
-----------
Capitalized terms used in this Supplemental Indenture and not
otherwise defined herein shall have the meanings assigned to such terms in the
Indenture.
ARTICLE TWO
SECTION 2.01. Amendments to Table of Contents
-------------------------------
The Table of Contents of the Indenture is amended by deleting the
titles to Sections 4.03 through 4.07, Section 4.09, Section 4.10, and Sections
4.12 through 4.14, and inserting in lieu thereof the phrase "[intentionally
omitted]".
ARTICLE THREE
SECTION 3.01. Elimination of Certain Definitions in Article One.
-------------------------------------------------
Sections 1.01 and 1.02 of the Indenture are amended by deleting all
definitions of terms, and references to definitions of terms, that are used
exclusively in the text of the Indenture and the Notes that are being otherwise
eliminated by this Supplemental Indenture.
SECTION 3.02. Amendment of Certain Provisions in Article Four.
-----------------------------------------------
Section 4.17 of the Indenture is amended by:
(a) deleting the text "and the corporate, partnership or other
existence of each Subsidiary in accordance with the respective organizational
documents of each such Subsidiary" immediately following "its corporate
existence";
(b) deleting the text "and the Subsidiaries" immediately following
"material franchises of the Company";
(c) deleting the text ", or the corporate existence of any
Subsidiary," immediately following "any such right or franchise"; and
(d) deleting the text "and the Subsidiaries, taken as a whole"
immediately following "conduct of the business of the Company".
3
SECTION 3.03. Elimination of Certain Provisions in Article Four.
-------------------------------------------------
(a) Section 4.03 of the Indenture is amended by deleting the text of
such Section in its entirety and inserting in lieu thereof the phrase
"[intentionally omitted]".
(b) Section 4.04 of the Indenture is amended by deleting the text of
such Section in its entirety and inserting in lieu thereof the phrase
"[intentionally omitted]".
(c) Section 4.05 of the Indenture is amended by deleting the text of
such Section in its entirety and inserting in lieu thereof the phrase
"[intentionally omitted]".
(d) Section 4.06 of the Indenture is amended by deleting the text of
such Section in its entirety and inserting in lieu thereof the phrase
"[intentionally omitted]".
(e) Section 4.07 of the Indenture is amended by deleting the text of
such Section in its entirety and inserting in lieu thereof the phrase
"[intentionally omitted]".
(f) Section 4.09 of the Indenture is amended by deleting the text of
such Section in its entirety and inserting in lieu thereof the phrase
"[intentionally omitted]".
(g) Section 4.10 of the Indenture is amended by deleting the text of
such Section in its entirety and inserting in lieu thereof the phrase
"[intentionally omitted]".
(h) Section 4.12 of the Indenture is amended by deleting the text of
such Section in its entirety and inserting in lieu thereof the phrase
"[intentionally omitted]".
(i) Section 4.13 of the Indenture is amended by deleting the text of
such Section in its entirety and inserting in lieu thereof the phrase
"[intentionally omitted]".
(j) Section 4.14 of the Indenture is amended by deleting the text of
such Section in its entirety and inserting in lieu thereof the phrase
"[intentionally omitted]".
SECTION 3.04. Amendment of Certain Provisions in Article Five.
-----------------------------------------------
(a) Section 5.01 of the Indenture is amended by deleting the text of
each of clauses (a)(iii) and (a)(iv) in its entirety and inserting in lieu
thereof the phrase "[intentionally omitted]".
SECTION 3.05. Amendment of Certain Provisions in Article Six.
----------------------------------------------
Section 6.01 of the Indenture is amended by:
(a) deleting the text "or any of its Significant Subsidiaries"
immediately following "the Company" in clause (vii);
(b) deleting the text "or any Significant Subsidiary of the Company"
immediately following "(i) is for relief against the Company" from clause
(viii);
4
(c) deleting the text "or any Significant Subsidiary of the Company"
immediately following "(ii) appoints a Custodian of the Company" from clause
(viii);
(d) deleting the text "or any Significant Subsidiary of the Company"
immediately following "(iii) or orders the liquidation of the Company" from
clause (viii); and
(e) deleting the text of each of clauses (iv) through (vi) in its
entirety and inserting in lieu thereof the phrase "[intentionally omitted]".
SECTION 3.06. Amendment of Certain Provisions in Article Nine.
-----------------------------------------------
Section 9.03 of the Indenture is amended by:
(a) deleting the text of each of clauses (b) through (d) and clause
(f) in its entirety and inserting in lieu thereof the phrase "[intentionally
omitted]"; and
(b) deleting in its entirety the final paragraph of Section 9.03.
ARTICLE FOUR
SECTION 4.01. Elimination of Certain Provisions in the Notes
----------------------------------------------
The Notes are deemed to be amended and amended as follows:
Section 14 of the Notes is amended by (a) deleting the text "to make
restricted payments, to incur indebtedness,", (b) deleting the text ", to permit
restrictions on dividends and other payments by Subsidiaries to the Company,",
(c) deleting the text "and to engage in transactions with Affiliates" and (d)
inserting the word "and" immediately prior to the phrase "to consolidate, merge
or sell all or substantially all of its assets".
ARTICLE FIVE
SECTION 5.01. Waiver of Claims to Security
----------------------------
All claims to and interest in any security pledged for the benefit of
the Notes are hereby waived to the fullest extent permitted by applicable law.
ARTICLE SIX
SECTION 6.01. Effectiveness of Amendments to Indenture.
----------------------------------------
Notwithstanding any other provision of this Supplemental Indenture,
(a) this Supplemental Indenture shall be effective upon its signing by the
parties hereto and (b) the Amendments shall not be operative until immediately
prior to the Merger (as defined in the Statement), provided all validly tendered
Notes are accepted for purchase pursuant to the Offer upon consummation of the
Merger.
5
SECTION 6.02. Continuing Effect of Indenture.
------------------------------
Except as expressly provided herein, all of the terms, provisions and
conditions of the Indenture and the Notes outstanding thereunder shall remain in
full force and effect.
SECTION 6.03. Construction of Supplemental Indenture.
--------------------------------------
This Supplemental Indenture is executed as and shall constitute an
indenture supplemental to the Indenture and shall be construed in connection
with and as part of the Indenture. This Supplemental Indenture shall be governed
by, and construed in accordance with, the laws of the State of New York, as
applied to contracts made and performed within the State of New York.
SECTION 6.04. Successors.
----------
All agreements of the parties contained in this Supplemental
Indenture shall bind their respective successors.
SECTION 6.05. Trust Indenture Act Controls.
----------------------------
If any provision of this Supplemental Indenture limits, qualifies or
conflicts with another provision which is required to be included by the Trust
Indenture Act of 1939, as amended, as in force at the date as of which this
Supplemental Indenture is executed, the provision required by said Act shall
control.
SECTION 6.06. Severability.
------------
In case any one or more of the provisions in this 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 6.07. Trustee Disclaimer.
------------------
The Trustee accepts the amendment of the Indenture effected by this
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, or
for or with respect to (i) the validity or sufficiency of this Supplemental
Indenture or any of the terms or provisions hereof, (ii) the proper
authorization hereof by the Company by corporate action or otherwise, (iii) the
due execution hereof by the Company 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.
6
SECTION 6.08. Counterparts.
------------
This Supplemental Indenture may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same instrument.
[Remainder of page intentionally left blank]
7
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed as of the day and year written above.
ACTIVANT SOLUTIONS HOLDINGS INC.,
as Issuer
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President of Finance
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION, as Trustee
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
8