EXHIBIT 2.6
AMENDMENT NO. 1 TO AMENDED AND
RESTATED RECEIVABLES TRANSFER AGREEMENT
AMENDMENT NO. 1 dated as of November 7, 1996 between Merisel Capital
Funding, Inc. ("MCF") and Merisel Americas, Inc. (the "Originator").
WHEREAS, MCF and the Originator are parties to an Amended and Restated
Receivables Transfer Agreement dated as of September 27, 1996 (the "Transfer
Agreement").
WHEREAS, the parties to the Transfer Agreement desire to amend such
Transfer Agreement.
THE PARTIES AGREE AS FOLLOWS:
1. Definitions. All capitalized terms used herein, unless
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otherwise defined, are used as defined in the Transfer Agreement.
2. Amendment to Transfer Agreement.
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(a) Section 4.01(a)(xv) of the Transfer Agreement is amended by adding
the phrase "tax reports and statements" after the word "returns".
(b) Section 4.01(b)(vii) is amended by adding the phrase "allows the
holder thereof to bring suit or otherwise enforce its remedies against an
Obligor through judicial process," after the word "Receivable" which appears in
the first line therein.
(c) Section 4.02(f) of the Transfer Agreement is amended by adding the
phrase "(notwithstanding the foregoing, this proviso shall not be effective
unless the Originator gives prior written notice of any such contest to MCF and
its assignees and such non-compliance does not adversely affect their rights in
respect of the Transferred Receivables or impair their ability to exercise any
of their rights or remedies hereunder)" after the word "Originator" and before
the word "except".
(d) Section 4.02(h)(i) of the Transfer Agreement is amended by adding
the phrase "or its ability to perform its obligations hereunder" after the word
"Originator" which appears in the last line therein.
(e) Section 4.02(h)(iii) of the Transfer Agreement is amended by
adding the phrase "or its ability to perform its obligations hereunder" after
the word "Originator" which appears in the last line therein.
(f) Section 4.02(h)(iv) of the Transfer Agreement is amended by
adding the phrase ", or written threat to commence any proceedings," after the
word "proceedings" which appears in the first line therein.
(g) Section 4.02(h)(v) of the Transfer Agreement is amended by adding
the phrase "or its ability to perform its obligations hereunder" after the word
"Originator" which appears in the last line therein.
(h) Section 4.02(h)(vi) of the Transfer Agreement is amended by
adding the phrase "or its ability to perform its obligations hereunder" after
the word "Originator" which appears in the last line therein.
(i) Section 6.06(b) of the Transfer Agreement is amended by deleting
the word "exclusive".
3. Confirmation of Agreement and Loan Documents. Each of the
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Originator and MCF agree that, except for the specific amendments set forth in
Section 2, nothing herein shall be deemed to be a waiver or amendment of any
covenant or agreement contained in the Transfer Agreement and each of the other
documents executed in con nection therewith are ratified and confirmed in all
respects and shall remain in full force and effect in accordance with its terms.
Each reference in the Transfer Agreement to "this Agreement" and in each of the
other documents to be executed in connection therewith to the "Transfer
Agreement" shall mean the Transfer Agreement as amended by this Amendment No. 1,
and as hereinafter amended or restated.
4. Representations and Warranties. Each of the Originator and MCF
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represents and warrants that:
(a) this Amendment No. 1 has been duly authorized, executed and
delivered pursuant to its corporation power; and
(b) this Amendment No. 1 constitutes its legal, valid and binding
obligation.
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5. Counterparts. Delivery of an executed counterpart of a signature
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page to this Amendment No. 1 by facsimile shall be effective as delivery of a
manually executed counterpart of this Amendment No. 1. This Amendment No. 1 may
be executed in any number of counterparts and by different 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.
6. Governing Law. This Amendment No. 1 shall be governed by, and
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construed in accordance with, California law.
7. Effective Date. Upon the execution and delivery of this Amendment
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No. 1 by the parties hereto the Transfer Agreement shall be amended by this
Amendment No. 1, effective as of the date hereof.
IN WITNESS WHEREOF, the Originator and MCF have caused this Amendment
No. 1 to be duly executed by their respective authorized officers as of the date
and year first above written.
MERISEL CAPITAL FUNDING, INC.
By:/s/ Xxxxxxx X. Xxxxxx
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Title: Vice President & Treasurer
Name: Xxxxxxx X. Xxxxxx
MERISEL AMERICAS, INC.
By:/s/ Xxxxxxx X. Xxxxxx
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Title: Vice President & Treasurer
Name: Xxxxxxx X. Xxxxxx
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