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Exhibit 10.1
AMENDMENT NO.
7
to
SECOND AMENDED AND
RESTATED RECEIVABLES SALE AND SERVICING
AGREEMENT
Dated as of May 5,
2008
THIS AMENDMENT NO. 7 (this
“Amendment”) is entered into as of May 5, 2008, by
and among SYNNEX CORPORATION, a Delaware corporation
(“Synnex”), individually, and as originator and as
servicer (in such capacity, the “Servicer”), SIT
FUNDING CORPORATION, a Delaware corporation (the
“Borrower”), SUMITOMO MITSUI BANKING CORPORATION
(“SMBC”), as a lender, MANHATTAN ASSET FUNDING COMPANY
LLC (“MAFC”), as a lender, and GENERAL ELECTRIC CAPITAL
CORPORATION, a Delaware corporation, as a lender, as Swing Line
Lender (in its capacities as a lender and Swing Line Lender, the
“Lender”, and together with SMBC and MAFC, the
“Lenders”) and as administrative agent (in such
capacity, the “Administrative Agent”), as parties to
the Sale Agreement, as referred to below. Capitalized terms used in
this Amendment which are not otherwise defined herein shall have
the meanings given such terms in Annex X to the Sale
Agreement.
RECITALS:
WHEREAS, Synnex, individually
and as an originator, the Borrower, as buyer, and each of the
persons signatory thereto from time to time as originators are
parties to that certain Second Amended and Restated Receivables
Sale and Servicing Agreement, dated as of February 12, 2007
(as amended by that certain Amendment No. 1 dated
August 31, 2007, that certain Amendment No. 2 dated
November 30, 2007, that certain Amendment No. 3 dated
November 30, 2007, that certain Amendment No. 4 dated
February 11, 2008, that certain Amendment No. 5 dated
March 27, 2008 and that certain Amendment No. 6 dated
April 1, 2008, and as further amended, restated, supplemented
or otherwise modified from time to time, the “Sale
Agreement”);
WHEREAS, Borrower has
requested that Buyer, Lenders and Administrative Agent agree to
amend on the terms set forth herein certain sections of the Sale
Agreement to permit the issuance and repurchase of convertible
senior notes (the “ Convertible Senior Notes ”)
with a final maturity date of not less than ten (10) years
from the date of issuance in a principal amount not to exceed
$150,000,000;
WHEREAS, Buyer, Lenders and
Administrative Agent desire to amend the Sale Agreement on the
terms and conditions set forth herein;
NOW, THEREFORE, in
consideration of the premises set forth above, the terms and
conditions contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, Synnex, the Borrower, the Administrative Agent and
the Lenders hereby agree as follows:
Section 1. Amendment .
As of the Effective Date (as hereafter defined), and subject to the
satisfaction of the conditions precedent set forth in
Section 2 hereof, the parties hereto agree as
follows:
1.1 Section 4.03(e) is
hereby amended by deleting clause (ii) of such Section and
replacing it in its entirety with the following:
“(ii) make any material
change in its capital structure as described on Schedule
4.01(h) , including the issuance or repurchase of any shares of
Stock, warrants or other securities convertible into Stock or any
revision of the terms of its outstanding Stock; provided
that Originator shall be permitted to issue and repurchase the
Convertible Senior Notes (as defined in Annex A of the Credit
Agreement) as set forth in the Credit Agreement
or”
Section 2. Conditions of
Effectiveness of this Amendment . This Amendment shall become
effective as of the date hereof (the “Effective Date”)
when, and only when:
2.1 The Administrative Agent
and the Lender shall have received counterparts of this Amendment
duly executed by each of the parties hereto; and
2.2 Each of the following
conditions shall have been satisfied:
(a) each representation and
warranty by the Borrower and Synnex contained in the Sale Agreement
(as amended hereby), Funding Agreement and in each other Related
Document shall be true and correct as of the date hereof, except to
the extent that such representation or warranty expressly relates
solely to an earlier date; and
(b) no Incipient
Termi
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