Exhibit 10.30
ASSIGNMENT, CONSENT TO ASSIGNMENT AND ASSUMPTION,
AND RELEASE AGREEMENT (the "Assignment Agreement")
dated as of March 28 31, 1997 by and among VANSTAR
CORPORATION, a Delaware corporation ("VANSTAR"),
MERISEL, INC., a Delaware corporation ("MERISEL"),
MERISEL FAB, INC., a Delaware corporation ("FAB"),
and COMPUTERLAND CORPORATION, a California
corporation ("COMPUTERLAND").
R E C I T A L S
a. VANSTAR and FAB are parties to a Distribution and Services Agreement
dated January 31, 1994 (the "Services Agreement"). The Services Agreement
has been amended by the parties from time to time, and most recently by
Amendment No. 14 dated December 16, 1996. FAB's obligations under the
Services Agreement are guaranteed by MERISEL pursuant to the terms of a
Guaranty Agreement dated as of January 31, 1994 (the "Merisel Guaranty").
b. FAB desires to sell and assign substantially all of its assets to
COMPUTERLAND, a California corporation wholly-owned by SYNNEX Information
Technologies, Inc., a California corporation ("SYNNEX") and COMPUTERLAND
desires to assume certain of the liabilities of FAB (the "Acquisition"). The
Acquisition is conditioned on the assignment of the Services Agreement from
FAB to COMPUTERLAND, VANSTAR's consent to such assignment, and the amendment
of the Services Agreement on terms acceptable to SYNNEX and COMPUTERLAND.
c. VANSTAR transferred certain rights concerning the payment of the
Extended Payment Obligation arising under the terms of the Services Agreement
as collateral securing the payment of a loan (as that term is defined in
Section 2(a) of the Loan and Security Agreement dated as of May 29, 1996 (the
"Loan Agreement")) made to Vanstar by Donaldson Lufkin & Jenrette Securities
Corporation ("DLJ") under the Loan Agreement. BankAmerica Investment
Corporation ("BankAmerica") has represented that it is the beneficial owner
of all rights of DLJ under the Loan Agreement, and BankAmerica and SYNNEX
Information Technologies, Inc. ("SYNNEX") have entered into a letter
agreement dated March 25, 1997 concerning the assumption and satisfaction of
the Extended Payment Obligation by COMPUTERLAND or SYNNEX (the "BankAmerica
Letter Agreement"). The BankAmerica Letter Agreement provides for, among
other things, the written release by BankAmerica of any and all claims
against
Vanstar and of the security interest granted by VANSTAR in connection with
the Loan Agreement.
d. VANSTAR desires to consent to the assignment of the Services
Agreement, provided that (i) the Extended Payment Amount arising under the
terms of the Services Agreement is satisfied in full on the terms set forth
in the BankAmerica Letter Agreement; (ii) the Services Agreement is otherwise
amended on terms acceptable to COMPUTERLAND and VANSTAR; and (iii) that it be
released by FAB from certain obligations arising under the Services Agreement
as hereinafter set forth. FAB also desires that it be released from certain
of its obligations under the Services Agreement.
NOW, THEREFORE, for good and valuable consideration, the parties do
hereby agree as follows:
1. ASSIGNMENT OF SERVICES AGREEMENT. On satisfaction of the conditions
set forth in paragraph 3 below, and for valuable consideration, receipt of
which is acknowledged, FAB hereby assigns and transfers to COMPUTERLAND all
of FAB's right, title and interest in and to the Services Agreement, and
COMPUTERLAND agrees to and accepts the assignment. COMPUTERLAND expressly
assumes and agrees to keep, perform and fulfill, after the date hereof, all
the terms, covenants, conditions and obligations required to be kept,
performed and fulfilled by FAB under the Services Agreement. COMPUTERLAND
also acknowledges its assumption of trade accounts payable to VANSTAR in the
sum of $8,665,426.
2. CONSENT TO ASSIGNMENT. On satisfaction of the conditions set forth
in Paragraph 3 below, and subject to the Release set forth in paragraph 5
below and the Acknowledgment in Paragraph 6 below, VANSTAR consents to the
assignment of the Services Agreement from FAB to COMPUTERLAND, and hereby
releases FAB from any further liability or obligation under the Services
Agreement arising out of or related to the Services Agreement after such
assignment. VANSTAR also consents to the assumption of $8,665,426 of the FAB
trade accounts payable to VANSTAR by COMPUTERLAND.
3. CONDITIONS. The assignment by FAB, COMPUTERLAND's acceptance of the
assignment, and VANSTAR's consent to such assignment and conditioned on
satisfaction of each of the following conditions:
a. The satisfaction of the Extended Payment Amount ($20,000,000),
arising under the terms of the Services Agreement, on the terms set forth in
the BankAmerica Letter Agreement ; and
b. [INTENTIONALLY DELETED]
c. The execution and delivery by COMPUTERLAND and VANSTAR of Amendment
No. 15 to the Services Agreement, in the form attached hereto as Exhibit A;
and
2
d. The execution and delivery by SYNNEX to VANSTAR of the Guaranty
Agreement, in the form attached hereto as Exhibit B.
4. RELEASE BY VANSTAR.
a. VANSTAR and its subsidiary organizations, affiliates, partners,
agents, servants, stockholders, employees, representatives, assigns and
successors hereby fully releases and discharges MERISEL and FAB, and their
parent and subsidiary organizations, affiliates, partners, agents, servants,
stockholders, employees, representatives, assigns and successors, from and
relinquishes all rights, claims, demands, causes of action, damages, costs,
expenses, attorneys' fees, and obligations of any nature, known or unknown,
in law or in equity, which it now has or may have after execution of this
agreement against MERISEL or FAB, ARISING OUT OF OR RELATED TO THE SERVICES
AGREEMENT OR THE GUARANTY AGREEMENT, OTHER THAN THOSE ITEMS LISTED ON
SCHEDULE A HERETO.
b. VANSTAR acknowledges and agrees that this release applies to all
claims for injuries, damages, or losses to VANSTAR (whether those injuries,
damages, or losses are known or unknown, foreseen or unforeseen, or patent or
latent) that VANSTAR may have against FAB or MERISEL ARISING OUT OF OR
RELATED TO THE SERVICES AGREEMENT, OTHER THAN THOSE ITEMS LISTED ON SCHEDULE
A HERETO, and VANSTAR hereby waives application of California Civil Code
Section 1542. VANSTAR certifies that it has read the following provisions of
California Civil Code Section 1542:
"A general release does not extend to claims which the creditor does
not know or suspect to exist in his favor at the time of executing the
release, which if known by him must have materially affected his
settlement with the debtor."
c. Notwithstanding the release set forth above, nothing in this
Agreement shall release, discharge or otherwise impair VANSTAR's right to
implead or pursue any legal or equitable action against MERISEL or FAB with
respect to third party claims brought against VANSTAR for which VANSTAR would
have had a claim for indemnification, equitable indemnity, or other claim
against MERISEL or FAB.
5. RELEASE BY MERISEL AND FAB.
a. MERISEL and FAB and their subsidiary organizations, affiliates,
partners, agents, servants, stockholders, employees, representatives, assigns
and successors hereby fully releases and discharges VANSTAR, and its parent
and subsidiary organizations, affiliates, partners, agents, servants,
stockholders, employees, representatives, assigns and successors, from and
relinquishes all rights, claims, demands, causes of action, damages, costs,
expenses, attorneys' fees, and obligations of any nature, know or unknown, in
law or in equity, which they now have or may have after execution of this
agreement against
3
VANSTAR, ARISING OUT OF OR RELATED TO THE SERVICES
AGREEMENT OTHER THAN THOSE ITEMS LISTED ON SCHEDULE B HERETO.
b. MERISEL and FAB acknowledge and agree that this release applies to
all claims for injuries, damages, or losses to MERISEL and FAB (whether those
injuries, damages, or losses are known or unknown, foreseen or unforeseen, or
patent or latent) that MERISEL and FAB may have against VANSTAR ARISING OUT
OF OR RELATED TO THE SERVICES AGREEMENT OTHER THAN THOSE ITEMS LISTED ON
SCHEDULE B HERETO, and MERISEL and FAB hereby waive application of California
Civil Code Section 1542. MERISEL and FAB certify that they have read the
following provisions of California Civil Code Section 1542:
"A general release does not extend to claims which the creditor
does not know or suspect to exist in his favor at the time of executing
the release, which if known by him must have materially affected his
settlement with the debtor."
c. Notwithstanding the release set forth above, nothing in this
Agreement shall release, discharge or otherwise impair MERISEL's or FAB's
right to implead or pursue any legal or equitable action against VANSTAR with
respect to third party claims brought against MERISEL or FAB for which
MERISEL or FAB would have had a claim for indemnification, equitable
indemnity, or other claim against VANSTAR.
d. Notwithstanding the release set forth above, nothing in this
Agreement shall release, discharge or otherwise impair Vanstar's obligation
under the Services Agreement to continue to assist FAB, ComputerLand or its
customers in the process of submitting and collecting from vendors claims for
MDF, price protection, rebate and vendor credit memos on behalf of FAB,
ComputerLand and their customers. Additionally, Vanstar will continue to
assist FAB, ComputerLand and their customers in the submission and collection
of claims from vendors for MDF, price protection, rebate and vendor credit
memos where FAB, ComputerLand or their customer had not originally submitted
the claim properly or at all.
4. Acknowledgment. The parties hereto agree that (i) the items listed
on Schedule A shall remain the obligations of FAB and MERISEL after the date
hereof, (ii) the amounts owing, if any, pursuant to the items designated as
numbers 1 and 2 of Schedule B shall be paid by VANSTAR to FAB, and (iii) the
amounts owing, if any, pursuant to items 3, 4, and 5 of Schedule B shall be
paid by VANSTAR to COMPUTERLAND.
7. MISCELLANEOUS.
a. This Agreement shall be effective immediately upon execution by the
parties.
b. This Agreement is entered into, and shall be construed and
interpreted in accordance with the laws of the State of California.
4
c. This Agreement may be signed in counterparts, each of which shall be
deemed to be an original.
AGREED TO AND EFFECTIVE AS OF MARCH 28, 1997.
MERISEL, INC. VANSTAR CORPORATION
By: /s/ DWIGHT STEFFENSON By: /s/ AHMAD MANSHOURI
--------------------------- -------------------------
Name: Dwight Steffenson Name: Ahmad Manshouri
Title: Chairman & CFO Title: Sr. Vice President and
General Manager, Operations
MERISEL FAB, INC. COMPUTERLAND CORPORATION
By: /s/ DWIGHT STEFFENSON By: /s/ C. KEVIN CHUANG
--------------------------- -------------------------
Name: Dwight Steffenson Name: C. Kevin Chuang
Title: Chairman Title: CFO
5