Exhibit 99.2
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:
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1.
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Junior Security Interest .
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(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