FIFTH AMENDMENT TO
Exhibit
10.12
FIFTH
AMENDMENT TO
THIS FIFTH AMENDMENT TO LOAN AND SECURITY AGREEMENT is made as
of the 18th day of July, 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”).
W I T N E S S E T H
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 29, 2006, as further
amended by the terms of that certain Fourth Amendment to Loan
and Security Agreement dated as of April 2, 2007, 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:
(a) Section 34 of the Agreement is amended by the addition
of the following to follow the first paragraph of the Section,
to provide as follows:
“Notwithstanding the foregoing, for the period from
July 18, 2007 through August 18, 2007, the Borrower
will have available to it an over formula accommodation in an
amount not to exceed $370,000.00 (the “Facility”). In
addition to interest and other fees and expenses provided herein
on the Facility, Borrower shall pay to Capital, upon the
effective date of this Agreement, a usage fee equal to one
percent (1%) of the Facility.”
2. Capital hereby does waive the events of Default under
the Agreement as a result of
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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
June 30, 2007; provided, that such waiver by Capital
shall relate solely to the Specified Events of Default for the period
ending June 30, 2007, 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. In
consideration of this waiver, the Borrower shall pay a waiver fee in
the amount of $7500.00 upon execution of this Amendment.
3. The Fidelity Guarantor, Xxxxx
Xxxxxxx (“Guarantor”), by signing below, consents to the
terms of this Fifth 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 | ||
| Its President | ||
| Duly Authorized | ||
/s/ Xxxx
Xxxxxxx
|
CAPITAL: | |
| CAPITAL TEMPFUNDS, a division of CAPITAL BUSINESS CREDIT LLC, a Delaware limited liability company |
||
| By: /s/ Xxxxx X. X’Xxxx | ||
| Print Name: Xxxxx X. X’Xxxx Title: Vice Pres. |
||
| GUARANTOR: | ||
/s/ Xxxx
X. Xxxx
|
By: /s/ Xxxxx Xxxxxxx | |
| Xxxxx Xxxxxxx | ||
|
STATE OF COUNTY OF |
} } } |
SS: |
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 V.P. 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 16 day of August, 2007, I accepted delivery of that certain Fifth 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 16 day of
August, 2007 by Xxxxx X. X’Xxxx , who
personally appeared before me, and who [ü] is
personally known to me or [ ] has produced
as identification.
/s/ Xxxxx
X. Xxxxxx
Notary Public State of North
Carolina
Print Name Xxxxx X.
Xxxxxx
My Commission
Expires: 6-23-2001
[NOTARY SEAL]
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