Exhibit 99.6
AMENDMENT NO. 1
TO CONDITIONAL ASSIGNMENT
AND SECURITY AGREEMENT
Amendment No. 1 dated as of the 18th day of July, 2001 to
the Conditional Assignment and Security Agreement dated as of
July 6, 2000 (hereinafter referred to as the "Original
Agreement"), made by Electronic Retailing Systems, International
Inc., a Delaware corporation (hereinafter referred to as the
"Parent"), and Electronic Retailing Systems International, Inc.,
a Connecticut corporation and wholly-owned subsidiary of the
Parent (together with the Parent, hereinafter referred to as the
"Grantors"), in favor of United States Trust Company of New
York, as agent for each of the Secured Parties identified in the
Original Agreement.
W I T N E S S E T H:
WHEREAS, the Grantors and the Collateral Agent are parties
to the Original Agreement; and
WHEREAS, the Super-Required Holders have executed and
delivered their consents to the amendments to the Original
Agreement set forth herein, and authorized the Collateral Agent
to enter into this Amendment No. 1, all as set forth in certain
Letters of Transmittal to Systems Holding, Inc., a Delaware
corporation (hereinafter referred to as "Holdco"), copies of
which have been delivered to the Collateral Agent; and the
Grantors further wish to amend the Original Agreement as set
forth herein;
NOW, THEREFORE, in consideration of the mutual covenants
contained herein, each of the Grantors hereby agrees with the
Collateral Agent, for the ratable benefit of the Secured
Parties, as follows:
SECTION I
Effective immediately prior to the Initial Closing (as
hereinafter defined):
A. Sub-paragraph (xviii) of Section I of this Original
Agreement shall be deleted and the following inserted in lieu
thereof:
"(xviii) The term "Notes" shall mean the 8% Notes"."
; and the phrase "(hereinafter referred to as the "Notes")"
contained in the second recital of the Original Agreement shall
be deleted;
B. The period at the end of the second sentence of
Paragraph (b) of Section 2.3 shall be deleted and in
lieu thereof the following shall be added: "; and
provided that the foregoing covenant shall not
constrain the exercise or conversion of any NewCheck
Securities in accordance with its terms (it being
acknowledged that any securities or other property
issued upon such exercise or conversion shall continue
to constitute NewCheck Securities [or proceeds
thereof] hereunder)."; and
C. Clause (b)(y) of Section 3.1 of the Original Agreement
shall be deleted.
For purposes of this Amendment No. 1, the "Initial Closing"
shall mean the effectiveness of the assignment and transfer to
Holdco of 10% Notes by the Required Holders thereof (as those
terms are defined in the Original Agreement), prior notice of
the time and date of which the Grantors shall deliver to the
Collateral Agent.
SECTION II
A. Except as set forth therein, the Original Agreement
shall remain in full force and effect.
B. The parties hereto shall execute such additional
documents and instruments reasonably requested by any other
party in order to consummate the transactions contemplated
hereunder.
C. This Amendment No. 1 shall be governed by, and
construed and interpreted in accordance with, the internal laws
of the State of New York without reference to principles of
conflicts of laws, except as required by mandatory provisions of
law.
D. This Amendment No. 1 may be executed in counterparts,
each of which shall be deemed an original and all of which shall
together constitute the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed and delivered by their duly authorized
officers as of the date first set forth above.
Attest: ELECTRONIC RETAILING SYSTEMS
INTERNATIONAL, INC., a Delaware
corporation
s/Norton Xxxxxxxxx By s/Xxxxx X. Failing, Jr.
----------------------- ----------------------------
Secretary Chief Executive Officer
Attest: ELECTRONIC RETAILING SYSTEMS
INTERNATIONAL, INC., a
Connecticut corporation
s/Norton Xxxxxxxxx By s/Xxxxx X. Failing, Jr.
------------------------ -----------------------------
Secretary President
ACCEPTED:
COLLATERAL AGENT:
UNITED STATES TRUST COMPANY
OF NEW YORK
By s/Xxxxx X. Xxxxx
-----------------------
Xxxxx X. Xxxxx
Vice President
corp\ers\amendment\no.1 to con & sec agreement 8k
