AMENDMENT NO. 4 Dated as of September 21, 2005 to AMENDED AND RESTATED RECEIVABLES PURCHASE AND SERVICING AGREEMENT and AMENDED AND RESTATED RECEIVABLES TRANSFER AGREEMENT Dated as of August 30, 2002

Exhibit 10.2

 

AMENDMENT NO. 4

 

Dated as of September 21, 2005

 

to

 

AMENDED AND RESTATED RECEIVABLES PURCHASE AND SERVICING AGREEMENT

 

and

 

AMENDED AND RESTATED RECEIVABLES TRANSFER AGREEMENT

 

Dated as of August 30, 2002

 

THIS AMENDMENT NO. 4 (this “Amendment”) is entered into as of September 21, 2005 by and among SYNNEX CORPORATION (f/k/a SYNNEX Information Technologies, Inc.), a Delaware corporation (“Synnex” or the “Originator”), SIT FUNDING CORPORATION, a Delaware corporation (“SFC”), MANHATTAN ASSET FUNDING COMPANY LLC (“Manhattan Asset Funding”), as a Conduit Purchaser, SUMITOMO MITSUI BANKING CORPORATION (“Sumitomo”), as a Committed Purchaser, SMBC SECURITIES, INC. (“SMBC”), as a Purchaser Agent, and GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware corporation (“GE Capital”), in its capacities as a committed purchaser and as administrative agent (in such capacity, the “Administrative Agent”) under the Receivables Purchase and Servicing Agreement 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 Receivables Purchase and Servicing Agreement.

 

RECITALS:

 

WHEREAS, the Originator and SFC are parties to that certain Amended and Restated Receivables Transfer Agreement, dated as of August 30, 2002 (as amended by that certain Amendment No. 1, dated June 30, 2003, that certain Amendment No. 2, dated December 30, 2003, and that certain Amendment No. 3, dated December 13, 2004, the “Receivables Transfer Agreement”);

 

WHEREAS, SFC, as seller, Synnex, as servicer (the “Servicer”) and as Originator, the other Originators, GE Capital, as the Administrative Agent and as a Committed Purchaser, Manhattan Asset Funding as a Conduit Purchaser, Sumitomo as a Committed Purchaser and SMBC as a Purchaser Agent are parties to that certain Amended and Restated Receivables Purchase and Servicing Agreement dated as of August 30, 2002 (as amended by that certain Amendment No. 1, dated June 30, 2003, that certain Amendment No. 2, dated December 30, 2003, and that certain Amendment No. 3, dated December 13, 2004, the “Receivables Purchase and Servicing Agreement”);

 

WHEREAS, many of the defined terms used in the Receivables Transfer Agreement and the Receivables Purchase and Servicing Agreement are set forth in Annex X attached thereto (“Annex X”);

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WHEREAS, the parties hereto desire to amend the Receivables Purchase and Servicing Agreement on the terms 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, the Originator, SFC, Manhattan Asset Funding, Sumitomo, SMBC and GE Capital hereby agree as follows.

 

Section 1. Amendment to Receivables Purchase and Servicing Agreement. As of the Effective Date (as hereafter defined), and subject to the satisfaction of the conditions precedent set forth in Section 3 hereof, the Receivables Purchase and Servicing Agreement is hereby amended as follows:

 

1.1 Section 5.02(a) is hereby amended by amending Annex 5.02(a) by deleting paragraph (d) in its entirety and replacing it with the following: “Intentionally Omitted”.

 

Section 2. Amendment to Receivables Transfer Agreement. As of the Effective Date, and subject to the satisfaction of the conditions precedent set forth in Section 3 hereof, the Receivables Transfer Agreement is hereby amended as follows:

 

2.1 Section 5.02(a) is hereby amended by amending Annex 5.02(a) by deleting paragraph (d) in its entirety and replacing it with the following: “Intentionally Omitted”.

 

Section 3. Conditions of Effectiveness of this Amendment. This Amendment shall become effective as of the date hereof (the “Effective Date”) when, and only when:

 

3.1 the Administrative Agent shall have received counterparts of this Amendment duly executed by each of the parties hereto; and

 

3.2 Each of the following conditions shall have been satisfied:

 

(a) each representation and warranty by SFC contained in the Receivables Transfer Agreement, the Receivables Purchase and Servicing Agreement (as amended hereby) 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;

 

(b) no Incipient Termination Event or Termination Event hereunder or any “Event of Default” under (and as defined in) the Credit Agreement (as in effect on the date hereof) shall have occurred and be continuing or would result after giving effect to any of the transactions contemplated on the date hereof; and

 

(c) as of the date hereof, there has been (i) since May 31, 2005, no material adverse change (x) in the business, financial or other condition or prospects of Synnex and its Subsidiaries, taken as a whole, (y) in the Transferred

 

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Receivables, taken as a whole, or (z) in the financial condition or prospects of SFC, (ii) no litigation commenced which could reasonably be expected to have a material adverse impact on Synnex and its Subsidiaries, taken as a whole, or which would challenge the transactions contemplated herein and in the Related Documents, and (iii) since May 31, 2005, no material increase in the liabilities (liquidated or contingent) of Synnex and its Subsidiaries, taken as a whole, or material decrease in the assets of Synnex and the Subsidiary Originators, taken as a whole.

 

Section 4. Representations and Warranties. Each of the Originator and SFC hereby represents and warrants that this Amendment and each of the Receivables Transfer Agreement and the Receivables Purchase and Servicing Agreement, as amended hereby, constitute legal, valid and binding obligations of such Person and are enforceable against such Person in accordance with their respective terms.

 

Section 5. Reference to and Effect on Related Documents.

 

5.1 Upon the effectiveness of this Amendment pursuant to Section 3 hereof, on and after the Effective Date, each reference to the Receivables Purchase and Servicing Agreement in any of the Related Documents shall mean and be a reference to the Receivables Purchase and Servicing Agreement as amended hereby.

 

5.2 Except as specifically set forth above, the Receivables Transfer Agreement and the Receivables Purchase and Servicing Agreement, and all other documents, instruments and agreements executed and/or delivered in connection therewith, shall remain in full force and effect, and are hereby ratified and confirmed.

 

5.3 The execution, delivery and effectiveness of this Amendment shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of SFC, Administrative Agent, Committed Purchasers, Conduit Purchaser or Purchaser Agent nor constitute a waiver of any provision of any of the Related Documents, or any other documents, instruments and agreements executed and/or delivered in connection therewith.

 

Section 6. Headings. Section headings in this Amendment are included herein for convenience of reference only and shall not constitute a part of this Amendment for any other purpose.

 

Section 7. Counterparts. This Amendment may be executed by one or more of the parties to this Amendment on any number of separate counterparts and all of said counterparts taken together shall be deemed to constitute one and the same instrument.

 

Section 8. Entire Agreement. This Amendment, taken together with the Receivables Transfer Agreement, the Receivables Purchase and Servicing Agreement and all of the other Related Documents, embodies the entire agreement and understanding of the parties hereto and supersedes all prior agreements and understandings, written and oral, relating to the subject matter hereof.

 

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Section 9. Governing Law. This Amendment shall be governed by and construed in accordance with the laws of the State of New York applicable to contracts made and performed in such State and any applicable laws of the United States of America.

 

Section 10. No Course of Dealing. Administrative Agent, Committed Purchasers, Conduit Purchaser and Purchaser Agent have entered into this Amendment on the express understanding with SFC and the Originator that in entering into this Amendment, it is not establishing any course of dealing with SFC or the Originator. The rights of Administrative Agent, Committed Purchasers, Conduit Purchaser and Purchaser Agent to require strict performance with all the terms and conditions of the Receivables Transfer Agreement and the Receivables Purchase and Servicing Agreement as amended by this Amendment and the other Related Documents shall not in any way be impaired by the execution of this Amendment. None of the Administrative Agent, Committed Purchasers, Conduit Purchaser and Purchaser Agent (collectively, the “Purchaser Parties”) shall be obligated in any manner to execute any further amendments or waivers, and if such waivers or amendments are requested in the future, assuming the terms and conditions thereof are acceptable to them, each such Person may require the payment of fees in connection therewith.

 

Section 11. Waiver of Claims. In consideration for the execution by the Purchaser Parties of this Amendment, each of the Seller, SFC and the Originator hereby waives each and every claim, defense, demand, action and suit of any kind or nature whatsoever against the Purchaser Parties and each other Affected Party arising on or prior to the date hereof in connection with the Receivables Purchase and Servicing Agreement, any of the Related Documents and the transactions contemplated thereby.

 

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IN WITNESS WHEREOF, this Amendment No. 4 has been duly executed as of the day and year first above written.

 

 

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Amendment No. 4

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Amendment No. 4

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Amendment No. 4