**Exhibit 10.5**

** **

 

**GUARANTY BY CORPORATION**

** **

Denver, Colorado

October 1, 2007

 

This Guaranty, dated asof October 1, 2007, is made by MPC Corporation, a Colorado corporation (the “Guarantor”),for the benefit of Wells Fargo Bank, National Association through its operatingDivision 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 evenherewith (the “Agreement”) pursuant to which WFBC shall purchase accountsreceivable from the Customer and may make financial accommodations to theCustomer.

 

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

 

ACCORDINGLY, theGuarantor, in consideration of the premises and other good and valuableconsideration, 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 shallhave the meanings given them in the Agreement.

 

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

 

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

 

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the Guarantor inconnection with this Guaranty are not sufficient to warrant the continuance ofthis Guaranty as to the future Indebtedness of the Customer. Accordingly, solong as this Guaranty is not revoked prospectively in accordance with paragraph4, WFBC may rely conclusively on acontinuing warranty, hereby made, that the Guarantor continues to be benefitedby this Guaranty and WFBC shall have no duty to inquire into or confirm thereceipt of any such benefits, and this Guaranty shall be effective andenforceable by WFBC without regard to the receipt, nature or value of any suchbenefits.

 

4.             UnconditionalNature. No act or thing need occur to establish the Guarantor’s liabilityhereunder, and no act or thing, except full payment and discharge of all of theIndebtedness, shall in any way exonerate the Guarantor hereunder or modify,reduce, limit or release the Guarantor’s liability hereunder. This is anabsolute, unconditional and continuing guaranty of payment of the Indebtednessand shall continue to be in force and be binding upon the Guarantor, whether ornot all of the Indebtedness is paid in full, until this Guaranty is revokedprospectively as to future transactions, by written notice actually received byWFBC, and such revocation shall not be effective as to the amount ofIndebtedness existing or committed for at the time of actual receipt of suchnotice by WFBC, or as to any renewals, extensions, refinancings or refundingsthereof.

 

5.             Dissolution orInsolvency of Guarantor. The dissolution or adjudication of bankruptcy ofthe Guarantor shall not revoke this Guaranty, except upon actual receipt ofwritten notice thereof by WFBC and only prospectively, as to futuretransactions, as herein set forth. If the Guarantor shall be dissolved or shallbe or become subject to any insolvency proceeding, then WFBC shall have theright to declare immediately due and payable, and the Guarantor will forthwithpay to WFBC, the full amount of all of the Indebtedness whether due and payableor unmatured. If the Guarantor voluntarily commences or there is commencedinvoluntarily against the Guarantor a case under the United States BankruptcyCode, the full amount of all Indebtedness, whether due and payable orunmatured, shall be immediately due and payable without demand or noticethereof.

 

6.             EnforcementExpenses. The Guarantor will pay or reimburse WFBC for all costs, expensesand reasonable attorneys’ fees paid or incurred by WFBC in endeavoring tocollect 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 toengage in any transactions with or for the Customer. Whether or not anyexisting relationship between the Guarantor and the Customer has been changedor ended and whether or not this Guaranty has been revoked, WFBC may enter intotransactions resulting in the creation or continuance of the Indebtedness andmay otherwise agree, consent to or suffer the creation or continuance of any ofthe Indebtedness, without any consent or approval by the Guarantor and withoutany prior or subsequent notice to the Guarantor. The Guarantor’s liabilityshall not be affected or impaired by any of the following acts or things (whichWFBC is expressly authorized to do, omit or suffer from time to time, bothbefore and after revocation of this Guaranty, without consent or approval by ornotice to the Guarantor): (i) any acceptance of collateral security,guarantors, accommodation parties or sureties for any or all of theIndebtedness; (ii) one or more extensions or renewals of the Indebtedness(whether or not for longer than the original period) or any modification of theinterest rates, discount rates, fees, expenses, maturities, if any, or othercontractual terms applicable to any of the Indebtedness or any amendment ormodification of any of the terms or provisions of any agreement under which theIndebtedness or any part thereof arose; (iii) any waiver or indulgencegranted to the Customer, any delay or lack of diligence in the enforcement ofthe Indebtedness or any failure to institute proceedings, file a claim, giveany required notices or otherwise protect any of the Indebtedness;(iv) any full or partial release of, compromise or settlement with, oragreement not to sue, the Customer or any guarantor or other person liable inrespect of any of the Indebtedness; (v) any release, surrender, cancellationor other discharge of any evidence of the Indebtedness or the acceptance of anyinstrument in renewal or substitution therefor; (vi) any failure to obtaincollateral security (including rights of setoff) for the Indebtedness, or tosee to the proper or sufficient creation and perfection thereof, or toestablish 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) anycollection, sale, lease or disposition of, or any other foreclosure orenforcement of or realization on, any collateral security; (viii) anyassignment, pledge or other transfer of any of the Indebtedness or any evidencethereof; (ix) any manner, order or method of application of any paymentsor credits upon the Indebtedness; and (x) any election by WFBC underSection 1111(b) of the United States Bankruptcy Code. The Guarantor waives anyand all defenses and discharges available to a surety, guarantor oraccommodation co-obligor.

 

8.             Waivers byGuarantor. The Guarantor waives any and all defenses, claims, setoffs anddischarges of the Customer, or any other obligor, pertaining to theIndebtedness, except the defense of discharge by payment in full. Withoutlimiting the generality of the foregoing, the Guarantor will not assert, pleador enforce against WFBC any defense of waiver, release, discharge ordisallowance in bankruptcy, statute of limitations, res judicata, statute offrauds, anti-deficiency statute, fraud, incapacity, minority, usury, illegalityor unenforceability which may be available to the Customer or any other personliable in respect of any of the Indebtedness, or any setoff available againstWFBC to the Customer or any other such person, whether or not on account of arelated transaction. The Guarantor expressly agrees that the Guarantor shall beand remain liable for any deficiency remaining after foreclosure of anymortgage or security interest securing the Indebtedness, whether or not theliability of the Customer or any other obligor for such deficiency isdischarged pursuant to statute or judicial decision. The liability of theGuarantor shall not be affected or impaired by any voluntary or involuntaryliquidation, dissolution, sale or other disposition of all or substantially allof 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 orproceeding affecting, the Customer or any of its assets. The Guarantor will notassert, plead or enforce against WFBC any claim, defense or setoff available tothe Guarantor against the Customer. The Guarantor waives presentment, demandfor payment, notice of dishonor or nonpayment and protest of any instrumentevidencing the Indebtedness. WFBC shall not be required first to resort forpayment of the Indebtedness to the Customer or other persons, or theirproperties, or first to enforce, realize upon or exhaust any collateralsecurity for the Indebtedness, before enforcing this Guaranty.

 

9.             If Payments SetAside, etc. If any payment applied by WFBC to the Indebtedness isthereafter set aside, recovered, rescinded or required to be returned for anyreason (including, without limitation, the bankruptcy, insolvency orreorganization of the Customer or any other obligor), the Indebtedness to whichsuch payment was applied shall for the purpose of this Guaranty be deemed tohave continued in existence, notwithstanding such application, and thisGuaranty shall be enforceable as to such Indebtedness as fully as if suchapplication had never been made.

 

10.           AdditionalObligation of Guarantor. The Guarantor’s liability under this Guaranty isin addition to and shall be cumulative with all other liabilities of theGuarantor to WFBC as guarantor, surety, endorser, accommodation co-obligor orotherwise of any of the Indebtedness or obligation of the Customer, without anylimitation as to amount, unless the instrument or agreement evidencing orcreating such other liability specifically provides to the contrary.

 

11.           No Duties Owed byWFBC. The Guarantor acknowledges and agrees that WFBC (i) has not madeany representations or warranties with respect to, (ii) does not assumeany responsibility to the Guarantor for, and (iii) has no duty to provideinformation to the Guarantor regarding, the enforceability of any of theIndebtedness or the financial condition of the Customer or any guarantor. TheGuarantor has independently determined the creditworthiness of the Customer andthe enforceability of the Indebtedness and until the Indebtedness is paid infull will independently and without reliance on WFBC continue to make suchdeterminations.

 

12.           Acknowledgement. TheGuarantor 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 appropriateand understands and agrees to each of the provisions of this Guaranty andfurther acknowledges that it or s/he has entered into this Guarantyvoluntarily.

 

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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 thesuccessors and assigns of the Guarantor and shall inure to the benefit of WFBCand its participants, successors and assigns. Any invalidity orunenforceability of any provision or application of this Guaranty shall notaffect other lawful provisions and application thereof, and to this end theprovisions of this Guaranty are declared to be severable. This Guaranty may notbe waived, modified, amended, terminated, released or otherwise changed exceptby a writing signed by the Guarantor and WFBC. This Guaranty shall be governedby and construed in accordance with the substantive laws (other than conflictlaws) of the State of Colorado. The Guarantor hereby (i) consents to thepersonal jurisdiction of the state and federal courts located in the State ofColorado in connection with any controversy related to this Guaranty; (ii) waivesany argument that venue in any such forum is not convenient, (iii) agreesthat any litigation initiated by WFBC or the Guarantor in connection with thisGuaranty shall be venued in either the District Court of Denver County, DenverColorado, or the United States District Court, District of Colorado Division;and (iv) agrees that a final judgment in any such suit, action orproceeding shall be conclusive and may be enforced in other jurisdictions bysuit 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 theGuarantor until all of the Customer’s obligations to WFBC have been paid infull or otherwise satisfied and the Guarantor provides WFBC with written noticeof the termination of this Guaranty. By execution hereof, the Guarantorknowingly accepts the full range of risk encompassed within a contract of “continuingguaranty” which risk includes, without limitation, the possibility that theCustomer will incur additional obligations for which the Guarantor may beliable hereunder after the Customer’s financial condition or ability to pay itslawful debts when they are due has deteriorated, and the Guarantor understandsthat 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 ANYACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF, BASED ON OR PERTAINING TOTHIS GUARANTY.

 

IN WITNESSWHEREOF, this Guaranty has been duly executed by the Guarantor the date firstwritten 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 |                |
|                                                                 |            |                |
|                                                                 |            |                |
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| STATE OF Idaho          | )               |                |
|                                                                 | )               |                |
| COUNTY OF Canyon                                           | )               |                |
|                                                                      |                 |                     |        |  |  |  |

 

Theforegoing instrument was acknowledged before me this 1st day of October, 2007by 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 OFCORPORATE GUARANTOR**

** **

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

#  

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

 

x                                  byunanimous written action duly and lawfully taken, subscribed by all thedirectors of said corporation,

 

and I further certifythat 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 timeto time to sell accounts receivable, or engage in other transactions with, WellsFargo Bank, National Association through its Wells Fargo Business Creditoperating division (herein, with its successors and assigns, referred to as “WFBC”);and

#  

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

 

THEREFORE,BE IT

 

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

 

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RESOLVEDFURTHER, that it be and hereby is acknowledged that each and every guarantymade pursuant to the foregoing resolutions is and will be made and given forthe corporate purposes of this corporation; and

 

RESOLVEDFURTHER, that the President or any Vice President of this corporation shallpromptly notify WFBC in writing, and shall promptly cause WFBC to receivewritten notice, of the prospective revocation, as to future transactions not existingor 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 thiscorporation, this corporation is not receiving corporate benefits sufficient towarrant the continuance of said guaranty as to future indebtedness of theCustomer; and, unless and until it receives such written notice, WFBC mayassume conclusively that this corporation continues to be benefited by saidguaranty and WFBC shall have no duty to inquire into or confirm the receipt ofany such benefits by this corporation; and said guaranty shall be effective andenforceable by WFBC without regard to the receipt, nature or value of any suchbenefits; and

 

RESOLVEDFURTHER, that the Secretary or an Assistant Secretary shall certify to WFBC thenames and signatures of the persons who presently are duly elected, qualifiedand acting as the officers or agents authorized to act under the foregoingresolutions and the Secretary or an Assistant Secretary shall from time to timehereafter, upon a change in the facts so certified, immediately certify to WFBCthe names and signatures of the persons then authorized to sign or to act; WFBCshall be fully protected in relying on such certificates and on the obligationof the Secretary or an Assistant Secretary (set forth above) immediately tocertify to WFBC any change in any fact certified; and WFBC shall be indemnifiedand saved harmless by this corporation from any and all claims, demands,expenses, costs and damages resulting from or growing out of honoring orrelying on the signature or other authority (whether or not properly used) ofany officer or agent whose name and signature was so certified, or refusing tohonor any signature or authority not so certified; and

 

RESOLVEDFURTHER, that the foregoing resolutions are adopted in addition to, and not inreplacement or limitation of, and shall not be limited by, any and all otherresolutions heretofore or hereafter adopted by this corporation governing anytransaction with or involving WFBC, and the foregoing resolutions shallcontinue in force until express written notice of their prospective rescissionor modification, as to future transactions not then existing or committed forby WFBC, has been furnished to and received by WFBC; and

 

RESOLVEDFURTHER, that any and all prior and existing agreements and transactions by oron behalf of this corporation with WFBC be and the same hereby are in allrespects ratified, approved and confirmed.

 

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

 

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# I further certify that the officers and agents whosenames appear below have been duly elected to and now hold the offices in saidcorporation set forth opposite their respective names and that the signatureappearing opposite the name of each of such officers and agents is authenticand official

#  

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| **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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Ifurther certify (check one):

 

o                                    thatthe foregoing resolutions were duly approved by the shareholders of saidcorporation 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 permittedby law, with            shares voted in favor of such approval,               shares voted against such approval, and               shares eligible to vote not being voted;

 

x                                  thatshareholder approval of the foregoing resolutions is not required and saidresolutions are effective and binding on said corporation without approval byits shareholders.

 

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

#  

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

 
|                         | /s/ Curtis Akey |   |
|------------------------------|-----------------|--------|
|                         |            |
|                         | Secretary       |
|                         |            |
|                         |            |
| Attest by One  Other Officer |            |
|                         |            |
| /s/ John Yeros               |            |   |
|                              |                 |        |  |

 

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Exhibit A toSecretary’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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