exv10w12



 






    Exhibit
    10.12



 




    FIFTH
    AMENDMENT TO




    LOAN AND SECURITY AGREEMENT



 



    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 3773 W. 5th Avenue, Post Falls, ID 83854
    (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, Glenn
Welstad (“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.





2






 





     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/  Brad
E. Herr
	 	By: /s/ Glenn Welstad
	 

	 	 
	 
	 	Glenn Welstad

	 	 	Its President
	 	 	Duly Authorized
	 
	/s/  Mary
Rusberg

	 	CAPITAL:
	 


	 	CAPITAL TEMPFUNDS,

a division of CAPITAL BUSINESS CREDIT LLC,

a Delaware limited liability company
	 
	 
	 	By: /s/ Jerry T. O’Neil
	 

	 	 
	 

	 	Print Name: Jerry T. O’Neil
Title: Vice Pres.
	 
	 

	 	GUARANTOR:
	 
	/s/  Brad
E. Herr

	 	By: /s/ Glenn Welstad
	 

	 	 
	 
	 	Glenn Welstad
	 	 	 



















 





	 	 	 	 	 
	
    STATE OF

    

    COUNTY OF
	
 
	
    }

    }

    }
	
 
	
    

    SS:









 




    AFFIDAVIT
    OF OUT-OF-STATE EXECUTION AND ACCEPTANCE



 



    BEFORE ME, the undersigned authority, personally appeared the
    undersigned Jerry T. O’Neil (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/  Jerry
    T. O’Neil            








    Jerry T. O’Neil            






				
	 	    Title: 
	
           Vice Pres.
	 






 



    SWORN TO AND SUBSCRIBED before me this 16 day of
    August, 2007 by  Jerry T. O’Neil , who
    personally appeared before me, and who [ü] is
    personally known to me or [ ] has produced
                                 
    as identification.



 



    /s/  Nancy
    M. Watson            








    Notary Public State of North
    Carolina         




    Print Name   Nancy M.
    Watson                    




    My Commission
    Expires:   6-23-2001            



 



    [NOTARY SEAL]




    

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