FOURTH AMENDMENT TO LOAN AND SECURITY AGREEMENT
FOURTH AMENDMENT TO
LOAN AND SECURITY AGREEMENT
LOAN AND SECURITY AGREEMENT
THIS FOURTH AMENDMENT TO LOAN AND SECURITY AGREEMENT is made as of the 2nd day of April, 2007
by CAPITAL TEMPFUNDS, a division of CAPITAL BUSINESS CREDIT LLC, f/k/a CAPITAL FACTORS LLC
(“Capital”) and COMMAND CENTER, INC.,
a Washington corporation with its principal place of business and chief executive office at 0000 X.
0xx Xxxxxx, Xxxx Xxxxx, XX 00000 (the “Borrower”)
WITNESSETH
WHEREAS, Borrower and Capital have entered into a Loan and Security Agreement dated as of
April 7, 2006, as amended by the terms of that certain First Amendment to Loan and Security
Agreement dated as of July 24, 2006, as further amended by the terms of that certain Second
Amendment to Loan and Security Agreement dated as of August 22, 2006, as further amended by the
terms of that certain Third Amendment to Loan and Security Agreement dated as of November
, 2006 as may have been further amended from time to time (as amended, the “Agreement”);
and
WHEREAS, the parties desire to amend the Agreement as more fully set forth below:
NOW THEREFORE, it is hereby agreed as follows:
1. The terms of the Agreement are hereby amended as follows:
(e) Item 21 to Exhibit “B” to the Agreement is deleted in its entirety and the following is
substituted in its place:
“21. “Maximum Credit Facility” as referred to in Section 34 means the lesser of: (a) Nine
Million Nine Hundred Fifty Thousand Dollars ($9,950,000.00), or (b) (i) for the period
through March 31, 2007, six (6) times the Borrower’s Tangible Net Worth, and (ii)
commencing on April 1, 2007 and thereafter, four (4) times the Borrower’s Tangible Net
Worth. For the purposes of this Agreement, “Tangible Net Worth” shall mean shareholders
equity plus subordinated debt less accounts receivable due from affiliates and intangible
assets.”
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2. Capital hereby does waive the events of Default under the Agreement as a result of
the Borrower’s failure to meet the financial covenants set forth in Items 32 a, b & c to
Exhibit B
collectively the “Specified Events of Default”) for the period ending December 31, 2006;
provided,
that such waiver by Capital shall relate solely to the Specified Events of Default for the
period
ending December 31, 2006, and shall in no way prevent Capital from exercising its remedies
related
to any Default occurring on any day other than as set forth above (whether related to the
sections of
the Loan Agreement listed above or otherwise); provided, further, that this waiver
shall become
effective and binding on the parties hereto immediately upon the execution and delivery
hereof.
Capital’s agreement to waive the Specified Events of Default does not and shall not create
(nor shall
Borrower rely upon the existence of or claim or assert that there exists) any obligation of
Capital to
consider or agree to any further waivers and, in the event Capital subsequently agrees to
consider any
further waiver, neither the waiver contained herein nor any other conduct of Capital shall be
of any
force or effect on Capital’s consideration or decision with respect to any such requested
waiver, and
Capital shall have no obligation whatsoever to consider or agree to further waivers.
3. The Fidelity Guarantor, Xxxxx Xxxxxxx (“Guarantor”), by signing below, consents to the
terms of this Fourth Amendatory Agreement to Loan and Security Agreement, reaffirm the terms
of
his Performance Guaranty dated as of April 3, 2006 (the “Guaranty”), and confirms that the
Guaranty
is in full force and effect and binding upon them without any defenses, setoffs or
counterclaims of
any kind whatsoever.
4. Except as above amended, the Agreement remain in full force and effect and binding
upon the Borrower without any defenses, setoffs or counterclaims of any kind whatsoever.
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5. To induce Capital to enter into this Amendment, Borrower and Guarantor (a) acknowledge and
agree that no right of offset, defense, counterclaim, claim or objection exists in favor of
Borrower and/or Guarantor against Capital arising out of or with respect to the Loan Agreement, the
other Loan Documents, the Guaranty, the Obligations, or any other arrangement or relationship
between Capital and Borrower and/or Guarantor, and (b) release, acquit, remise and forever
discharge Capital and its affiliates and all of their past, present and future officers, directors,
employees, agents, attorneys, representatives, successors and assigns from any and all claims,
demands, actions and causes of action, whether at law or in equity and whether known or unknown,
which Borrower and Guarantor may have by reason of any manner, cause or things to and including the
date of this Amendment with respect to matters arising out of or with respect to the Loan
Agreement, the other Loan Documents, the Guaranty, the Obligations, or any other arrangement or
relationship between Capital and Borrower and/or Guarantor.
6. All capitalized terms not otherwise defined herein shall have the meanings ascribed to
them in the Agreement.
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IN WITNESS WHEREOF, the parties have set their hands and seals as of the date above written.
| BORROWER: | ||||||||
| WITNESSES | COMMAND CENTER, INC., a Washington | |||||||
| corporation | ||||||||
/s/ Xxxx
X. Xxxx
|
||||||||
| By: | /s/ Xxxxx Xxxxxxx
|
|||||||
| Xxxxx Xxxxxxx | ||||||||
/s/ Xxxx
Xxxxxxx
|
Its President Duly Authorized |
|||||||
| CAPITAL: | ||||||||
| /s/ Xxxx X. Xxxxxxx | CAPITAL TEMPFUNDS, | |||||||
| a division of CAPITAL BUSINESS CREDIT LLC, | ||||||||
| a Delaware limited liability company | ||||||||
| By: | /s/ XXXXX X. X’Xxxx
Title: Vice Pres. |
|||||||
| GUARANTOR: | ||||||||
| /s/ Xxxx X. Xxxx | /s/ Xxxxx Xxxxxxx
|
|||||||
| Xxxxx Xxxxxxx | ||||||||
/s/ Xxxx
Xxxxxxx |
||||||||
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STATE OF North Carlina |
) | |||||
| ) | SS: | |||||
COUNTY OF Mecklenburg |
) |
AFFIDAVIT OF OUT-OF-STATE EXECUTION AND ACCEPTANCE
BEFORE ME, the undersigned authority, personally appeared the undersigned
Xxxxx X. X’Xxxx
(the “Affiant”), who being first duly’ sworn upon oath, deposes and says that:
| 1. | The Affiant is a Vice Pres. of CAPITAL TEMPFUNDS, a division of CAPITAL BUSINESS CREDIT LLC, a Delaware limited liability company (‘TempFunds”), and the Affiant is duly authorized to and does make this affidavit in said capacity on behalf of TempFunds. | |
| 2. | That on the 2 day of April, 2007, I accepted delivery of that certain Fourth Amendment to Loan and Security Agreement of even date herewith (the “Agreement”), which Agreement is between COMMAND CENTER, INC., a Washington corporation, as borrower and CAPITAL TEMPFUNDS, a division of CAPITAL BUSINESS CREDIT LLC, a Delaware limited liability company, as lender | |
| 3. | That I executed the Agreement on behalf of TempFunds in the City of Charlotte, State of n.c. |
| FURTHER AFFIANT SAYETH NAUGHT. |
||||
| /s/ Xxxxx X. X’Xxxx | ||||
| Xxxxx X. X’Xxxx | ||||
| Title: | Vice Pres. | |||
SWORN TO AND SUBSCRIBED before me this 2 day of April, 2007 by Xxxxx X. X’Xxxx,
who personally appeared before me, and who þ is personally known to me or o has
produced , as identification.
| /s/ Xxxxx X. Xxxxxx | ||||
| Notary Public State of N.C. | ||||
| Print Name XXXXX X. XXXXXX
My Commission Expires: 6-23-2011 [NOTARY SEAL] |
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