Exhibit 10.5


 





 


GUARANTY BY CORPORATION


 


Denver, Colorado


October 1, 2007


 


This Guaranty, dated as
of October 1, 2007, is made by MPC Corporation, a Colorado corporation (the “Guarantor”),
for the benefit of Wells Fargo Bank, National Association through its operating
Division Wells Fargo Business Credit (with its successors and assigns, the “WFBC”).


 


WFBC and MPC-Pro, LLC
(the “Customer”), are parties to an Account Purchase Agreement of a date even
herewith (the “Agreement”) pursuant to which WFBC shall purchase accounts
receivable from the Customer and may make financial accommodations to the
Customer.


 


As a condition to
entering into the Agreement and extending such accommodations to the Customer,
WFBC has required the execution and delivery of this Guaranty.


 


ACCORDINGLY, the
Guarantor, in consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
hereby agrees as follows:


 


1.             Definitions.
All terms defined in the Agreement that are not otherwise defined herein shall
have the meanings given them in the 
Agreement.


 


2.             Indebtedness
Guaranteed. The Guarantor hereby absolutely and unconditionally guarantees
to WFBC the full and prompt payment when due, whether at maturity or earlier by
reason of acceleration or otherwise, of 
each and every sum now or hereafter owing to WFBC by the Customer under
the Agreement. (all of said sums being hereinafter called the “Indebtedness”).


 


3.             Guarantor’s
Representations and Warranties. The Guarantor represents and warrants to
WFBC that (i) the Guarantor is a corporation, duly organized and existing
in good standing and has full power and authority to make and deliver this
Guaranty; (ii) the execution, delivery and performance of this Guaranty by
the Guarantor have been duly authorized by all necessary action of its
directors and stockholders and do not and will not violate the provisions of,
or constitute a default under, any presently applicable law or its articles of
incorporation or bylaws or any agreement presently binding on it;
(iii) this Guaranty has been duly executed and delivered by the authorized
officers of the Guarantor and constitutes its lawful, binding and legally
enforceable obligation; and (iv) the authorization, execution, delivery and
performance of this Guaranty do not require notification to, registration with,
or consent or approval by, any federal, state or local regulatory body or
administrative agency. The Guarantor represents and warrants to WFBC that the
Guarantor has a direct and substantial economic interest in the Customer and
expects to derive substantial benefits therefrom and from any purchases of
property, financial accommodations, discounts, 
and other transactions and events resulting in the creation of the
Indebtedness guarantied hereby, and that this Guaranty is given for a corporate
purpose. The Guarantor agrees to rely exclusively on the right to revoke this
Guaranty prospectively as to future transactions, in accordance with paragraph 4, if at any time, in the opinion of the
directors or officers, the benefits then being received by


 


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the Guarantor in
connection with this Guaranty are not sufficient to warrant the continuance of
this Guaranty as to the future Indebtedness of the Customer. Accordingly, so
long as this Guaranty is not revoked prospectively in accordance with paragraph
4, WFBC may rely conclusively on a
continuing warranty, hereby made, that the Guarantor continues to be benefited
by this Guaranty and WFBC shall have no duty to inquire into or confirm the
receipt of any such benefits, and this Guaranty shall be effective and
enforceable by WFBC without regard to the receipt, nature or value of any such
benefits.


 


4.             Unconditional
Nature. No act or thing need occur to establish the Guarantor’s liability
hereunder, and no act or thing, except full payment and discharge of all of the
Indebtedness, shall in any way exonerate the Guarantor hereunder or modify,
reduce, limit or release the Guarantor’s liability hereunder. This is an
absolute, unconditional and continuing guaranty of payment of the Indebtedness
and shall continue to be in force and be binding upon the Guarantor, whether or
not all of the Indebtedness is paid in full, until this Guaranty is revoked
prospectively as to future transactions, by written notice actually received by
WFBC, and such revocation shall not be effective as to the amount of
Indebtedness existing or committed for at the time of actual receipt of such
notice by WFBC, or as to any renewals, extensions, refinancings or refundings
thereof.


 


5.             Dissolution or
Insolvency of Guarantor. The dissolution or adjudication of bankruptcy of
the Guarantor shall not revoke this Guaranty, except upon actual receipt of
written notice thereof by WFBC and only prospectively, as to future
transactions, as herein set forth. If the Guarantor shall be dissolved or shall
be or become subject to any insolvency proceeding, then WFBC shall have the
right to declare immediately due and payable, and the Guarantor will forthwith
pay to WFBC, the full amount of all of the Indebtedness whether due and payable
or unmatured. If the Guarantor voluntarily commences or there is commenced
involuntarily against the Guarantor a case under the United States Bankruptcy
Code, the full amount of all Indebtedness, whether due and payable or
unmatured, shall be immediately due and payable without demand or notice
thereof.


 


6.             Enforcement
Expenses. The Guarantor will pay or reimburse WFBC for all costs, expenses
and reasonable attorneys’ fees paid or incurred by WFBC in endeavoring to
collect and enforce the Indebtedness and in enforcing this Guaranty.


 


7.             WFBC’s Rights.
WFBC shall not be obligated by reason of its acceptance of this Guaranty to
engage in any transactions with or for the Customer. Whether or not any
existing relationship between the Guarantor and the Customer has been changed
or ended and whether or not this Guaranty has been revoked, WFBC may enter into
transactions resulting in the creation or continuance of the Indebtedness and
may otherwise agree, consent to or suffer the creation or continuance of any of
the Indebtedness, without any consent or approval by the Guarantor and without
any prior or subsequent notice to the Guarantor. The Guarantor’s liability
shall not be affected or impaired by any of the following acts or things (which
WFBC is expressly authorized to do, omit or suffer from time to time, both
before and after revocation of this Guaranty, without consent or approval by or
notice to the Guarantor): (i) any acceptance of collateral security,
guarantors, accommodation parties or sureties for any or all of the
Indebtedness; (ii) one or more extensions or renewals of the Indebtedness
(whether or not for longer than the original period) or any modification of the
interest rates, discount rates, fees, expenses, maturities, if any, or other
contractual terms applicable to any of the Indebtedness or any amendment or
modification of any of the terms or provisions of any agreement under which the
Indebtedness or any part thereof arose; (iii) any waiver or indulgence
granted to the Customer, any delay or lack of diligence in the enforcement of
the Indebtedness or any failure to institute proceedings, file a claim, give
any required notices or otherwise protect any of the Indebtedness;
(iv) any full or partial release of, compromise or settlement with, or
agreement not to sue, the Customer or any guarantor or other person liable in
respect of any of the Indebtedness; (v) any release, surrender, cancellation
or other discharge of any evidence of the Indebtedness or the acceptance of any
instrument in renewal or substitution therefor; (vi) any failure to obtain
collateral security (including rights of setoff) for the Indebtedness, or to
see to the proper or sufficient creation and perfection thereof, or to
establish the priority thereof, or to preserve, protect, insure, care for,
exercise or enforce any collateral security; or any modification, alteration,


 


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substitution, exchange,
surrender, cancellation, termination, release or other change, impairment,
limitation, loss or discharge of any collateral security; (vii) any
collection, sale, lease or disposition of, or any other foreclosure or
enforcement of or realization on, any collateral security; (viii) any
assignment, pledge or other transfer of any of the Indebtedness or any evidence
thereof; (ix) any manner, order or method of application of any payments
or credits upon the Indebtedness; and (x) any election by WFBC under
Section 1111(b) of the United States Bankruptcy Code. The Guarantor waives any
and all defenses and discharges available to a surety, guarantor or
accommodation co-obligor.


 


8.             Waivers by
Guarantor. The Guarantor waives any and all defenses, claims, setoffs and
discharges of the Customer, or any other obligor, pertaining to the
Indebtedness, except the defense of discharge by payment in full. Without
limiting the generality of the foregoing, the Guarantor will not assert, plead
or enforce against WFBC any defense of waiver, release, discharge or
disallowance in bankruptcy, statute of limitations, res judicata, statute of
frauds, anti-deficiency statute, fraud, incapacity, minority, usury, illegality
or unenforceability which may be available to the Customer or any other person
liable in respect of any of the Indebtedness, or any setoff available against
WFBC to the Customer or any other such person, whether or not on account of a
related transaction. The Guarantor expressly agrees that the Guarantor shall be
and remain liable for any deficiency remaining after foreclosure of any
mortgage or security interest securing the Indebtedness, whether or not the
liability of the Customer or any other obligor for such deficiency is
discharged pursuant to statute or judicial decision. The liability of the
Guarantor shall not be affected or impaired by any voluntary or involuntary
liquidation, dissolution, sale or other disposition of all or substantially all
of the assets, marshalling of assets and liabilities, receivership, insolvency,
bankruptcy, assignment for the benefit of creditors, reorganization,
arrangement, composition or readjustment of, or other similar event or
proceeding affecting, the Customer or any of its assets. The Guarantor will not
assert, plead or enforce against WFBC any claim, defense or setoff available to
the Guarantor against the Customer. The Guarantor waives presentment, demand
for payment, notice of dishonor or nonpayment and protest of any instrument
evidencing the Indebtedness. WFBC shall not be required first to resort for
payment of the Indebtedness to the Customer or other persons, or their
properties, or first to enforce, realize upon or exhaust any collateral
security for the Indebtedness, before enforcing this Guaranty.


 


9.             If Payments Set
Aside, etc. If any payment applied by WFBC to the Indebtedness is
thereafter set aside, recovered, rescinded or required to be returned for any
reason (including, without limitation, the bankruptcy, insolvency or
reorganization of the Customer or any other obligor), the Indebtedness to which
such payment was applied shall for the purpose of this Guaranty be deemed to
have continued in existence, notwithstanding such application, and this
Guaranty shall be enforceable as to such Indebtedness as fully as if such
application had never been made.


 


10.           Additional
Obligation of Guarantor. The Guarantor’s liability under this Guaranty is
in addition to and shall be cumulative with all other liabilities of the
Guarantor to WFBC as guarantor, surety, endorser, accommodation co-obligor or
otherwise of any of the Indebtedness or obligation of the Customer, without any
limitation as to amount, unless the instrument or agreement evidencing or
creating such other liability specifically provides to the contrary.


 


11.           No Duties Owed by
WFBC. The Guarantor acknowledges and agrees that WFBC (i) has not made
any representations or warranties with respect to, (ii) does not assume
any responsibility to the Guarantor for, and (iii) has no duty to provide
information to the Guarantor regarding, the enforceability of any of the
Indebtedness or the financial condition of the Customer or any guarantor. The
Guarantor has independently determined the creditworthiness of the Customer and
the enforceability of the Indebtedness and until the Indebtedness is paid in
full will independently and without reliance on WFBC continue to make such
determinations.


 


12.           Acknowledgement. The
Guarantor acknowledges that it or s/he has read this Guaranty in its entirety,
has consulted such legal, tax or other advisors as it or s/he deems appropriate
and understands and agrees to each of the provisions of this Guaranty and
further acknowledges that it or s/he has entered into this Guaranty
voluntarily.


 


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13.           Miscellaneous.
This Guaranty shall be effective upon delivery to WFBC, without further act,
condition or acceptance by WFBC, shall be binding upon the Guarantor and the
successors and assigns of the Guarantor and shall inure to the benefit of WFBC
and its participants, successors and assigns. Any invalidity or
unenforceability of any provision or application of this Guaranty shall not
affect other lawful provisions and application thereof, and to this end the
provisions of this Guaranty are declared to be severable. This Guaranty may not
be waived, modified, amended, terminated, released or otherwise changed except
by a writing signed by the Guarantor and WFBC. This Guaranty shall be governed
by and construed in accordance with the substantive laws (other than conflict
laws) of the State of Colorado. The Guarantor hereby (i) consents to the
personal jurisdiction of the state and federal courts located in the State of
Colorado in connection with any controversy related to this Guaranty; (ii) waives
any argument that venue in any such forum is not convenient, (iii) agrees
that any litigation initiated by WFBC or the Guarantor in connection with this
Guaranty shall be venued in either the District Court of Denver County, Denver
Colorado, or the United States District Court, District of Colorado Division;
and (iv) agrees that a final judgment in any such suit, action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law.


 


14. Termination.
Subject to the right of prospective revocation pursuant to paragraph 4,  this Guaranty may not be terminated by the
Guarantor until all of the Customer’s obligations to WFBC have been paid in
full or otherwise satisfied and the Guarantor provides WFBC with written notice
of the termination of this Guaranty. By execution hereof, the Guarantor
knowingly accepts the full range of risk encompassed within a contract of “continuing
guaranty” which risk includes, without limitation, the possibility that the
Customer will incur additional obligations for which the Guarantor may be
liable hereunder after the Customer’s financial condition or ability to pay its
lawful debts when they are due has deteriorated, and the Guarantor understands
that the amount of the obligations may be increased or decreased.


 


15.           Waiver of Jury Trial.
THE GUARANTOR HEREBY IRREVOCABLY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF, BASED ON OR PERTAINING TO
THIS GUARANTY.


 


IN WITNESS
WHEREOF, this Guaranty has been duly executed by the Guarantor the date first
written above.


 


	
   

  	
  MPC Corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Curtis Akey

  	
   

  
	
   

  	
   

  	
  Curtis
  Akey

  
	
   

  	
  Its :

  	
  Vice
  President and Chief Financial Officer

  



 


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  Address:

  	
  906 E. Karcher
  Rd.

  	
   

  
	
   

  	
  Nampa, ID 83687

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  STATE OF Idaho         

  	
  )

  	
   

  
	
   

  	
  )

  	
   

  
	
  COUNTY OF Canyon  

  	
  )

  	
   

  
							



 


The
foregoing instrument was acknowledged before me this 1st day of October, 2007
by Curtis Akey, Vice President and Chief Financial Officer of MPC Corporation,
a Colorado corporation, on behalf of the corporation.


 


	
   

  	
  /s/ Brandi Teske

  	
   

  
	
   

  	
  Notary Public

  



 


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CERTIFICATE OF SECRETARY OF
CORPORATE GUARANTOR


 


I, Curtis Akey, do hereby certify that I am Secretary
of MPC Corporation, a corporation organized under the laws of the State of
Colorado and that the following is a true, correct and complete copy of
resolutions duly adopted (check one)


 


o                                    at
a meeting of the board of directors of said corporation duly and properly
called and held on the            
day of November, 2006, at which a quorum was present and acting throughout;


 


x                                  by
unanimous written action duly and lawfully taken, subscribed by all the
directors of said corporation,


 


and I further certify
that said resolutions are now in full force and effect:


 


WHEREAS, MPC-Pro, LLC
(herein called the “Customer”), desires or may desire at some time or from time
to time to sell accounts receivable, or engage in other transactions with, Wells
Fargo Bank, National Association through its Wells Fargo Business Credit
operating division (herein, with its successors and assigns, referred to as “WFBC”);
and


 


WHEREAS,
this corporation has a direct and substantial economic interest in the Customer
and expects to derive substantial benefits therefrom and from any purchases of
property, financial accommodations, discounts, loans, credit transactions and
other transactions and events resulting in the creation of indebtedness of the
Customer to WFBC,


 


THEREFORE,
BE IT


 


RESOLVED,
that this corporation guaranty each and all of the debts, liabilities and
obligations of every type and description now or at any time hereafter owed by
the Customer to WFBC; and the President, each Vice President, the Secretary and
each other officer and agent of this corporation, acting alone or acting
together, be and hereby is authorized at any time and from time to time to
execute and deliver to WFBC one or more instruments of guaranty by which this
corporation guaranties such debts, liabilities and obligations of the Customer,
either without any limitation as to amount or limited to such principal amount
as such officer or agent may determine to be appropriate, plus interest thereon
and costs of collection and enforcement expenses referable thereto, and on such
other terms as such officer or agent may approve (such determination and
approval to be established conclusively by the terms of any instrument or
instruments of guaranty at any time or from time to time delivered to WFBC);
and


 


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RESOLVED
FURTHER, that it be and hereby is acknowledged that each and every guaranty
made pursuant to the foregoing resolutions is and will be made and given for
the corporate purposes of this corporation; and


 


RESOLVED
FURTHER, that the President or any Vice President of this corporation shall
promptly notify WFBC in writing, and shall promptly cause WFBC to receive
written notice, of the prospective revocation, as to future transactions not existing
or committed for, of any guaranty made pursuant to the foregoing resolutions,
if at any time, in the opinion of the directors or officers or agents of this
corporation, this corporation is not receiving corporate benefits sufficient to
warrant the continuance of said guaranty as to future indebtedness of the
Customer; and, unless and until it receives such written notice, WFBC may
assume conclusively that this corporation continues to be benefited by said
guaranty and WFBC shall have no duty to inquire into or confirm the receipt of
any such benefits by this corporation; and said guaranty shall be effective and
enforceable by WFBC without regard to the receipt, nature or value of any such
benefits; and


 


RESOLVED
FURTHER, that the Secretary or an Assistant Secretary shall certify to WFBC the
names and signatures of the persons who presently are duly elected, qualified
and acting as the officers or agents authorized to act under the foregoing
resolutions and the Secretary or an Assistant Secretary shall from time to time
hereafter, upon a change in the facts so certified, immediately certify to WFBC
the names and signatures of the persons then authorized to sign or to act; WFBC
shall be fully protected in relying on such certificates and on the obligation
of the Secretary or an Assistant Secretary (set forth above) immediately to
certify to WFBC any change in any fact certified; and WFBC shall be indemnified
and saved harmless by this corporation from any and all claims, demands,
expenses, costs and damages resulting from or growing out of honoring or
relying on the signature or other authority (whether or not properly used) of
any officer or agent whose name and signature was so certified, or refusing to
honor any signature or authority not so certified; and


 


RESOLVED
FURTHER, that the foregoing resolutions are adopted in addition to, and not in
replacement or limitation of, and shall not be limited by, any and all other
resolutions heretofore or hereafter adopted by this corporation governing any
transaction with or involving WFBC, and the foregoing resolutions shall
continue in force until express written notice of their prospective rescission
or modification, as to future transactions not then existing or committed for
by WFBC, has been furnished to and received by WFBC; and


 


RESOLVED
FURTHER, that any and all prior and existing agreements and transactions by or
on behalf of this corporation with WFBC be and the same hereby are in all
respects ratified, approved and confirmed.


 


I further certify that the board of directors of said
corporation has, and at the time of adoption of the foregoing resolutions had,
full power and lawful authority to adopt the foregoing resolutions and to
confer the powers therein granted upon the persons named, and that such persons
have full power and authority to exercise the same.


 


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I further certify that the officers and agents whose
names appear below have been duly elected to and now hold the offices in said
corporation set forth opposite their respective names and that the signature
appearing opposite the name of each of such officers and agents is authentic
and official


 


 




	
  Name

  	
   

  	
  Title

  	
   

  	
  Sample Signature

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  John P. Yeros

  	
   

  	
  Chairman and Chief Executive Officer

  	
   

  	
   

  	
  /s/ John Yeros

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Curtis Akey

  	
   

  	
  Vice President and Chief Financial Officer

  	
   

  	
   

  	
  /s/ Curtis Akey

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Curtis Akey

  	
   

  	
  Secretary

  	
   

  	
   

  	
  /s/ Curtis Akey

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Curtis Akey

  	
   

  	
  Treasurer

  	
   

  	
   

  	
  /s/ Curtis Akey

  	
   

  






 


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I
further certify (check one):


 


o                                    that
the foregoing resolutions were duly approved by the shareholders of said
corporation at a meeting duly and properly called and held on the          
day of                           
at which a quorum was present and acting throughout, or otherwise as permitted
by law, with            
shares voted in favor of such approval,               
shares voted against such approval, and               
shares eligible to vote not being voted;


 


x                                  that
shareholder approval of the foregoing resolutions is not required and said
resolutions are effective and binding on said corporation without approval by
its shareholders.


 


I further certify that attached hereto as Exhibits A
and B, respectively, are true, correct and complete copies of the articles of
incorporation and bylaws of said corporation, which articles and bylaws are in
full force and effect and have not been altered, amended or revised. I further
certify that attached hereto as Exhibit C is a Certificate of Good Standing of
said corporation not more than ten days old.


 


IN WITNESS WHEREOF, I have hereunto subscribed my name
this 1st day of October, 2007.


 


	
   

  	
  /s/ Curtis Akey

  	
   

  
	
   

  	
   

  
	
   

  	
  Secretary

  
	
   

  	
   

  
	
   

  	
   

  
	
  Attest by One
  Other Officer

  	
   

  
	
   

  	
   

  
	
  /s/ John Yeros

  	
   

  	
   

  
				



 


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Exhibit A to
Secretary’s Certificate


 


ARTICLES OF INCORPORATION


 


[TO BE PROVIDED BY GUARANTOR]


 


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Exhibit B to Secretary’s Certificate


 


BYLAWS


 


[TO BE PROVIDED BY GUARANTOR]


 


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Exhibit C to Secretary’s Certificate


 


CERTIFICATE OF GOOD STANDING


 


[TO BE PROVIDED BY GUARANTOR]


 


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