# **Exhibit10.2**

# ** **

AGREEMENT

 

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

 

RECITALS

 

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

 

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

 

C.            WFBCis party to Account Purchase Agreements with MPC and Gateway Companies dated asof the date hereof (the “Account Purchase Agreements”) (copies of which hasbeen provided to Gateway) pursuant to which MPC and Gateway Companies havegranted WFBC a security interest in the accounts receivable generated on orafter the Closing Date (the “WFBC Accounts”), inventory and all other propertyof MPC and Gateway Companies described in Section 5.01 of the Account PurchaseAgreements (collectively, the “WFBC Collateral”).

 

D.            MPCand Gateway are parties to a Transition Services Agreement dated as of the datehereof (the “Transition Services Agreement), pursuant to which Gateway hasagreed to purchase certain inventory for MPC and perform certain othertransitional services for MPC during the term of the Transition ServicesAgreement for which Gateway will provide a statement to MPC for payment to bedue in 30 days or less, provided (i) WFBC allows Gateway to take ajunior security interest in the WFBC Collateral to secure the payment of allobligations owing to Gateway under the Transition Services Agreement, includingwithout limitation, the price of such purchased inventory, shipping costs andother expenses, service fees and indemnities (collectively, the “TSAObligations”) and (ii) WFBC, MPC and Gateway Companies agree to set asidecertain accounts receivable for the payment of the TSA Obligations on the termsset forth herein (the “Financing Arrangements”).

 

E.             WFBChas agreed to allow a junior security interest in the WFBC Collateral in favorof Gateway pursuant to the terms hereof and to participate in the FinancingArrangements as set forth herein.

 

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F.             Theparties desire to set forth their agreement with respect to the accountsreceivable 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 mutualpromises contained herein, the parties agree as follows:

 

1.             JuniorSecurity Interest.

 

(a)           WFBC agrees that Gateway may take a securityinterest in WFBC Collateral junior to the security interest of WFBC to securethe TSA Obligations and that the granting of such junior security interestshall not be deemed to be a default under the Account Purchase Agreements. Gatewayagrees that the security interest of WFBC in WFBC Collateral granted under theAsset Purchase Agreements shall be and remain senior to the security interestof Gateway granted hereby in WFBC Collateral. MPC and Gateway Companies agreethat the grant of any security interest in WFBC Collateral other than thesecurity interest to Gateway securing payment of the TSA Obligations shall be adefault under the terms of the Account Purchase Agreements.

 

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

 

(c)           MPC and Gateway Companies shall execute anddeliver to Gateway any and all documents and instruments as Gateway may requestfrom time to time. MPC and Gateway Companies authorize Gateway to file UCCfinancing statements with any appropriate authority reflecting its securityinterest and further authorize Gateway to file other filings includingamendments (other than amendments adding collateral) as Gateway deemsappropriate.

 

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

 

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solely to theextent required to perfect Gateway’s security interest in such CommonCollateral.

 

(e)           The parties hereto agree that all proceedsof Common Collateral resulting from the sale, collection or other dispositionof Common Collateral in connection with or resulting from any enforcementaction shall be distributed, first to WFBC for the payment of allamounts owing by MPC to WFBC under the Account Purchase Agreement, until suchtime that all such amounts have been paid in full, and second to Gatewayfor the payment of the TSA Obligations until all such amounts have been paid infull.

 

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

 

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

 

(b)           Afterthe first five business days of the Transition Period, and at the end of eachweek thereafter during the Transition Period, Gateway will provide a statementto 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 “GatewayWeekly Payoff Amounts”). Such statement shall set forth the portion of theApplicable Gateway Weekly Payoff Amount that is attributable to freight charges(for such week, the “Gateway Freight Charge Weekly Payoff Amount”) and theportion of the Applicable Gateway Weekly Payoff Amount that is attributable toanything other than freight charges (for such week, the “Gateway Non-FreightCharge Weekly Payoff Amount”).

 

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

 

(d)           MPCagrees to notify WFBC and Gateway upon receipt of the Gateway weekly statementof ** **any material dispute or claim in any respect (including, withoutlimitation, 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 orotherwise), which dispute relates to an amount on

 

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the Gateway statement (“Disputed Amounts”). Inconnection with such notice, MPC shall be entitled to give written instructionsto WFBC (with a substantially simultaneous copy of such instructions to beprovided to Gateway) specifying the amount of Disputed Amounts (the “SpecifiedDisputed Amount”) that is to be netted from the Applicable Gateway WeeklyPayoff Amount for purposes of setting aside Gateway Blocked Accounts, and WFBCshall comply with such instructions. However, unless WFBC receives a writtennotice from Gateway within 3 business days after the applicable WeeklyStatement Delivery Date confirming Gateway’s agreement that the SpecifiedDisputed Amount should be so netted (amount so confirmed, the “ConfirmedDisputed Amount”), at the end of such 3 business day period, WFBC shall setaside additional Gateway Blocked Accounts in a face amount equal to suchunconfirmed Specified Disputed Amount. WFBC shall be entitled to rely upon thenotices provided herein of Gateway Weekly Payoff Amounts, Specified DisputedAmounts and Confirmed Disputed Amounts, as applicable, for all purposes withoutthe need to verify or otherwise confirm the validity thereof. Gateway and MPCwill work to promptly resolve any Disputed Amounts, and upon mutual agreement,will notify WFBC in writing of the resolution of all Disputed Amounts, to theextent such resolution results in any change in the Gateway Weekly PayoffAmounts, Specified Disputed Amounts or Confirmed Disputed Amounts.

 

(e)           If the Gateway Weekly Payoff Amount has beencovered fully by the aggregate face amount of the Gateway Blocked Accounts,then MPC and Gateway Companies may sell Acceptable Accounts to WFBC under theterms of the Account Purchase Agreements without restriction; providedthat (i) if there is a shortfall in funds available under Section 2(h) orSection 2(i) to pay any portion of the Applicable Gateway Weekly Payoff AmountWFBC shall set aside additional Gateway Blocked Accounts to cover the amount ofsuch shortfall and shall purchase such additional Gateway Blocked Accounts thatare acceptable and apply proceeds thereof to such shortfall and (ii) if WFBCbecomes aware that any Gateway Blocked Account no longer meets the criteria foran Acceptable Account, WFBC shall set aside additional Gateway Blocked Accountor Accounts to replace such unacceptable account.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

7.             Representationsand Warranties.

 

(a)           Each of the parties has had the opportunityto consult with legal counsel of such party’s choosing, this Agreement issatisfactory to each of the parties to this Agreement, and each such partyunderstands the terms of this Agreement and intends to fully perform and bebound by this Agreement.

 

(b)           Each of the parties represents and warrantsthat it is an entity that is duly created, validly existing and in goodstanding under the laws of the state of its organization and that the partysigning on its behalf is authorized on its behalf to execute and deliver thisAgreement, and any other instrument executed and delivered in connectionherewith, and upon such execution and delivery each such entity shall be boundby all such instruments.

 

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

 

(d)           No consent, approval, authorization or orderof any court or governmental authority or third party is required in connectionwith 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 andfilings necessary to perfect security interests granted herein in respect ofthe Gateway Collateral.

 

8.             Partiesin Interest. This Agreement shall be binding upon and inure to the benefitof each  party hereto and each of theirrespective successors and assigns, and nothing in this Agreement is intended toconfer upon any other person, whether or not named herein, any rights orremedies 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 orfacsimile signature, each of which when executed and delivered shall be deemedan original, and such counterparts together shall constitute one instrument.

 

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IN WITNESS WHEREOF, the undersigned have executed this Agreement, as ofthe 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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