Exhibit
10.2


 


AGREEMENT


 


This Agreement is entered into this 1st day of October, 2007 by and
among Wells Fargo Bank, National Association acting through its Wells Fargo
Business Credit operating division (“WFBC”), Gateway, Inc. (“Gateway”), Gateway
Companies, Inc. (“Gateway Companies”) and MPC-Pro, LLC (“MPC”), a wholly-owned
subsidiary of MPC Corporation (“MPC Parent”).


 


RECITALS


 


A.            Gateway,
MPC and MPC Parent are parties to an Asset Purchase Agreement dated as of
September 4, 2007 (the “Purchase and Sale Agreement”) pursuant to which MPC is
purchasing from Gateway certain assets and liabilities associated with Gateway’s
Professional Division and that portion of its Consumer Direct division that
provides business-related products (the “Transferred Organization”) and the
stock of Gateway Companies on the terms and subject to the conditions set forth
therein (the closing date of such sale referred to as the “Closing Date”).


 


B.            Pursuant
to the Purchase and Sale Agreement, Gateway shall retain accounts receivable of
the Transferred Organization generated and invoiced prior to the Closing Date
(the “Gateway Accounts”).


 


C.            WFBC
is party to Account Purchase Agreements with MPC and Gateway Companies dated as
of the date hereof (the “Account Purchase Agreements”) (copies of which has
been provided to Gateway) pursuant to which MPC and Gateway Companies have
granted WFBC a security interest in the accounts receivable generated on or
after the Closing Date (the “WFBC Accounts”), inventory and all other property
of MPC and Gateway Companies described in Section 5.01 of the Account Purchase
Agreements (collectively, the “WFBC Collateral”).


 


D.            MPC
and Gateway are parties to a Transition Services Agreement dated as of the date
hereof (the “Transition Services Agreement), pursuant to which Gateway has
agreed to purchase certain inventory for MPC and perform certain other
transitional services for MPC during the term of the Transition Services
Agreement for which Gateway will provide a statement to MPC for payment to be
due in 30 days or less, provided (i) WFBC allows Gateway to take a
junior security interest in the WFBC Collateral to secure the payment of all
obligations owing to Gateway under the Transition Services Agreement, including
without limitation, the price of such purchased inventory, shipping costs and
other expenses, service fees and indemnities (collectively, the “TSA
Obligations”) and (ii) WFBC, MPC and Gateway Companies agree to set aside
certain accounts receivable for the payment of the TSA Obligations on the terms
set forth herein (the “Financing Arrangements”).


 


E.             WFBC
has agreed to allow a junior security interest in the WFBC Collateral in favor
of Gateway pursuant to the terms hereof and to participate in the Financing
Arrangements as set forth herein.


 


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F.             The
parties desire to set forth their agreement with respect to the accounts
receivable of MPC and Gateway Companies, financing during the Transition Period
(as defined below) by Gateway and security for the TSA Obligations.


 


Now, therefore, in consideration of the foregoing and the mutual
promises contained herein, the parties agree as follows:


 


1.             Junior
Security Interest.


 


(a)           WFBC agrees that Gateway may take a security
interest in WFBC Collateral junior to the security interest of WFBC to secure
the TSA Obligations and that the granting of such junior security interest
shall not be deemed to be a default under the Account Purchase Agreements. Gateway
agrees that the security interest of WFBC in WFBC Collateral granted under the
Asset Purchase Agreements shall be and remain senior to the security interest
of Gateway granted hereby in WFBC Collateral. MPC and Gateway Companies agree
that the grant of any security interest in WFBC Collateral other than the
security interest to Gateway securing payment of the TSA Obligations shall be a
default under the terms of the Account Purchase Agreements.


 


(b)           Subject to the first-priority security
interest granted to WFBC under the Asset Purchase Agreements, MPC and Gateway
Companies hereby grant to Gateway, as collateral for the TSA Obligations, a
security interest, under the Uniform Commercial Code as in effect in the
applicable jurisdiction (the “UCC”), in the following described property, as
defined under the UCC:  all presently
existing or hereafter arising, now owned or hereafter acquired property
including, but not limited to, accounts, general intangibles, contracts rights,
investment property, deposit accounts, the Gateway Reserve Funds (as defined
below) established hereunder, inventory, instruments, chattel paper, documents,
insurance proceeds, and all books and records pertaining to accounts and all
proceeds and products of the foregoing property together with a controlled
collateral account to be maintained at Wells Fargo Bank, N.A. and controlled by
WFBC with a balance of $1,500,000 which account shall serve as additional
collateral for the TSA Obligations (collectively, “Gateway Collateral” and,
together with WFBC Collateral, “Common Collateral”).


 


(c)           MPC and Gateway Companies shall execute and
deliver to Gateway any and all documents and instruments as Gateway may request
from time to time. MPC and Gateway Companies authorize Gateway to file UCC
financing statements with any appropriate authority reflecting its security
interest and further authorize Gateway to file other filings including
amendments (other than amendments adding collateral) as Gateway deems
appropriate.


 


(d)           WFBC hereby acknowledges that if and to the
extent it holds, or a third party holds on its behalf, physical possession of
or “control” (as defined in the UCC) of any Common Collateral, such possession
or control is also for the benefit of Gateway


 


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solely to the
extent required to perfect Gateway’s security interest in such Common
Collateral.


 


(e)           The parties hereto agree that all proceeds
of Common Collateral resulting from the sale, collection or other disposition
of Common Collateral in connection with or resulting from any enforcement
action shall be distributed, first to WFBC for the payment of all
amounts owing by MPC to WFBC under the Account Purchase Agreement, until such
time that all such amounts have been paid in full, and second to Gateway
for the payment of the TSA Obligations until all such amounts have been paid in
full.


 


2.             Transition
Period Financing Arrangements. The parties agree as follows with respect to
the financing arrangements in respect of the TSA Obligations during the
Transition Period (defined as the period commencing on the Closing Date and
expiring on the date that is 120 days following the Closing Date; provided
that such period may be extended for up to an additional 60 days upon written
notice to WFBC in the event that Gateway and MPC agree to extend the term of
the Transition Services Agreement or such other longer period as WFBC may
agree).


 


(a)           During the first five business days of the
Transition Period, MPC and Gateway Companies may sell Acceptable Accounts (as
defined in the Account Purchase Agreements) to WFBC under the terms of the
Account Purchase Agreements without restriction.


 


(b)           After
the first five business days of the Transition Period, and at the end of each
week thereafter during the Transition Period, Gateway will provide a statement
to MPC (with a substantially simultaneous copy to be provided to WFBC)
specifying the amount of the TSA Obligations owed for such week (for such week,
the “Applicable Gateway Weekly Payoff Amount” and, collectively, the “Gateway
Weekly Payoff Amounts”). Such statement shall set forth the portion of the
Applicable Gateway Weekly Payoff Amount that is attributable to freight charges
(for such week, the “Gateway Freight Charge Weekly Payoff Amount”) and the
portion of the Applicable Gateway Weekly Payoff Amount that is attributable to
anything other than freight charges (for such week, the “Gateway Non-Freight
Charge Weekly Payoff Amount”).


 


(c)           After
receipt of each weekly statement specifying the Applicable Gateway Weekly
Payoff Amount (the date of such receipt, the “Weekly Statement Delivery Date”),
WFBC agrees to hold but not purchase Acceptable Accounts submitted to WFBC by
MPC and Gateway Companies during that week in a face amount equal to the
Applicable Gateway Weekly Payoff Amount (such set-aside accounts, the “Gateway
Blocked Accounts”).


 


(d)           MPC
agrees to notify WFBC and Gateway upon receipt of the Gateway weekly statement
of  any material dispute or claim in any respect (including, without
limitation, any alleged dispute related to returns, to price, invoice terms,
quantity, quality or late delivery and claims of release from liability,
counterclaim or any alleged claim of deduction, offset, or counterclaim or
otherwise), which dispute relates to an amount on


 


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the Gateway statement (“Disputed Amounts”). In
connection with such notice, MPC shall be entitled to give written instructions
to WFBC (with a substantially simultaneous copy of such instructions to be
provided to Gateway) specifying the amount of Disputed Amounts (the “Specified
Disputed Amount”) that is to be netted from the Applicable Gateway Weekly
Payoff Amount for purposes of setting aside Gateway Blocked Accounts, and WFBC
shall comply with such instructions. However, unless WFBC receives a written
notice from Gateway within 3 business days after the applicable Weekly
Statement Delivery Date confirming Gateway’s agreement that the Specified
Disputed Amount should be so netted (amount so confirmed, the “Confirmed
Disputed Amount”), at the end of such 3 business day period, WFBC shall set
aside additional Gateway Blocked Accounts in a face amount equal to such
unconfirmed Specified Disputed Amount. WFBC shall be entitled to rely upon the
notices provided herein of Gateway Weekly Payoff Amounts, Specified Disputed
Amounts and Confirmed Disputed Amounts, as applicable, for all purposes without
the need to verify or otherwise confirm the validity thereof. Gateway and MPC
will work to promptly resolve any Disputed Amounts, and upon mutual agreement,
will notify WFBC in writing of the resolution of all Disputed Amounts, to the
extent such resolution results in any change in the Gateway Weekly Payoff
Amounts, Specified Disputed Amounts or Confirmed Disputed Amounts.


 


(e)           If the Gateway Weekly Payoff Amount has been
covered fully by the aggregate face amount of the Gateway Blocked Accounts,
then MPC and Gateway Companies may sell Acceptable Accounts to WFBC under the
terms of the Account Purchase Agreements without restriction; provided
that (i) if there is a shortfall in funds available under Section 2(h) or
Section 2(i) to pay any portion of the Applicable Gateway Weekly Payoff Amount
WFBC shall set aside additional Gateway Blocked Accounts to cover the amount of
such shortfall and shall purchase such additional Gateway Blocked Accounts that
are acceptable and apply proceeds thereof to such shortfall and (ii) if WFBC
becomes aware that any Gateway Blocked Account no longer meets the criteria for
an Acceptable Account, WFBC shall set aside additional Gateway Blocked Account
or Accounts to replace such unacceptable account.


 


(f)            WFBC agrees to hold the proceeds of the
Gateway Blocked Accounts in reserve for the benefit of Gateway and release the
funds as provided for herein (the “Gateway Reserve Funds”).


 


(g)           During the Transition Period, (i) WFBC, MPC
and Gateway Companies shall grant Gateway continuous and unrestricted access to
an electronic portal maintained by WFBC that provides information at any time
on the “non-purchased accounts” and the “locked reserve balance” of MPC, in
each case at such time, and (ii) starting with the second Weekly Statement
Delivery Date and each week thereafter, WFBC shall deliver to Gateway and MPC a
weekly report which sets forth the Gateway Blocked Accounts set aside by WFBC and
the balance of the Gateway Reserve Funds, in each case at the time of delivery
of such report.


 


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(h)           Thirty days after the applicable Weekly
Statement Delivery Date of the statement reflecting the Applicable Gateway
Weekly Payoff Amount for the applicable week, WFBC agrees to pay Gateway the
Applicable Gateway Non-Freight Charge Weekly Payoff Amount to the extent funds
are available from the purchase by WFBC of acceptable Gateway Blocked Accounts
for such week together with the proceeds thereof held as Gateway Reserve Funds.
If any Applicable Gateway Non-Freight Charge Weekly Payoff Amount remains
unpaid, such shortfall shall be covered in accordance with the proviso to
Section 2(e) above.


 


(i)            Fifteen days after the applicable Weekly
Statement Delivery Date of the statement reflecting the Applicable Gateway
Weekly Payoff Amount for the applicable week, WFBC agrees to pay Gateway the
Applicable Gateway Freight Charge Weekly Payoff Amount to the extent funds are
available from the purchase by WFBC of acceptable Gateway Blocked Accounts for
such week together with the proceeds thereof held as Gateway Reserve Funds. If
any Applicable Gateway Freight Charge Weekly Payoff Amount remains unpaid, such
shortfall shall be covered in accordance with the proviso to Section 2(e)
above.


 


(j)            Thirty days after the end of the Transition
Period, WFBC shall purchase any remaining Gateway Blocked Accounts that are
acceptable and release the proceeds thereof and any other funds held as Gateway
Reserve Funds to Gateway to the extent of any outstanding amounts due under the
Gateway Weekly Payoff Amounts and remit the balance of such funds to MPC or
Gateway Companies, as applicable.


 


(k)           MPC agrees to pay WFBC $1,500 per month in consideration
for its services in connection herewith, and agrees that this obligation shall
be deemed to arise under and be subject to the terms of the Account Purchase
Agreement.


 


(l)             Gateway agrees to release its security
interests in the Gateway Collateral and hereby authorizes WFBC to file
terminations of such security interests if it deems it appropriate upon the
later of (i) thirty days after the end of the Transition Period and (ii) the
date on which all of the TSA Obligations have been paid in full in cash.


 


3.             WFBC
Hold in Trust. WFBC agrees that if it receives payment on or other proceeds
of the Gateway Accounts, it will hold such payments or proceeds in trust for
the benefit of Gateway and promptly remit such proceeds or payments to Gateway.


 


4.             Gateway
Hold in Trust. Gateway agrees that if it receives payment on or other
proceeds of the WFBC Accounts (other than pursuant to the terms of this
Agreement), it will hold such payments or proceeds in trust for the benefit of
WFBC and promptly remit such proceeds or payments to WFBC.


 


5.             Control.
MPC and Gateway Companies direct WFBC and Gateway to make payment of funds as
provided herein.


 


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6.             Forbearance.
During the Transition Period, Gateway shall not (a) notify any MPC or Gateway
Companies account debtor that payment on any Common Collateral is to be made to
Gateway; (b) collect, sue upon or otherwise exercise rights against the Common
Collateral; and, (c) sell, transfer, pledge or otherwise assign the its
interest in the Common Collateral except where such sale, transfer, pledge or
assignment is made expressly subject to this Agreement.


 


7.             Representations
and Warranties.


 


(a)           Each of the parties has had the opportunity
to consult with legal counsel of such party’s choosing, this Agreement is
satisfactory to each of the parties to this Agreement, and each such party
understands the terms of this Agreement and intends to fully perform and be
bound by this Agreement.


 


(b)           Each of the parties represents and warrants
that it is an entity that is duly created, validly existing and in good
standing under the laws of the state of its organization and that the party
signing on its behalf is authorized on its behalf to execute and deliver this
Agreement, and any other instrument executed and delivered in connection
herewith, and upon such execution and delivery each such entity shall be bound
by all such instruments.


 


(c)           Each of the parties hereto has the legal
right, power, capacity and authority to enter into and perform such party’s
covenants, obligations and agreements under this Agreement and the other
instruments referenced herein and delivered pursuant hereto, all corporate,
company, partnership and other actions required in connection with the
authorization, execution, delivery and performance of this Agreement by such
party have been duly taken.


 


(d)           No consent, approval, authorization or order
of any court or governmental authority or third party is required in connection
with the execution, delivery and performance by any party to this Agreement,
except such as have been obtained or made and are in full force and effect and
filings necessary to perfect security interests granted herein in respect of
the Gateway Collateral.


 


8.             Parties
in Interest. This Agreement shall be binding upon and inure to the benefit
of each  party hereto and each of their
respective successors and assigns, and nothing in this Agreement is intended to
confer upon any other person, whether or not named herein, any rights or
remedies of any nature whatsoever under or by reason of this Agreement.


 


9.             Counterparts.
This Agreement may be executed in any number of counterparts, by original or
facsimile signature, each of which when executed and delivered shall be deemed
an original, and such counterparts together shall constitute one instrument.


 


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IN WITNESS WHEREOF, the undersigned have executed this Agreement, as of
the date first above written.


 


 


	
  Gateway, Inc.  

  	
  Wells Fargo Bank, National Association
  

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ John Goldsberry 

  	
   

  	
  By:

  	
  /s/ Melody Stallings 

  	
   

  
	
   

  	
  (Sign)

  	
   

  	
   

  	
  (Sign)

  	
   

  
	
  By:

  	
  John Goldsberry 

  	
   

  	
  By:

  	
  Melody Stallings

  	
   

  
	
   

  	
  (Print) 

  	
   

  	
   

  	
  (Print) 

  	
   

  
	
  Its:

  	
  SVP & CFO

  	
   

  	
  Its:

  	
  Senior Vice President

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  MPC-Pro, LLC 

  	
   

  	
  Gateway Companies, Inc. 

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Curtis Akey 

  	
   

  	
  By:

  	
  /s/ John Goldsberry

  	
   

  
	
   

  	
  (Sign) 

  	
   

  	
   

  	
  (Sign)

  	
   

  
	
  By:

  	
  Curtis Akey

  	
   

  	
  By:

  	
  John Goldsberry

  	
   

  
	
   

  	
  (Print)

  	
   

  	
   

  	
  (Print)

  	
   

  
	
  Its:

  	
  CFO, Vice-President

  	
   

  	
  Its:

  	
  SVP & CFO

  	
   

  
								



 


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