Exhibit 10.1
FIFTH AMENDMENT
TO CREDIT
AGREEMENT
This FIFTH AMENDMENT TO 364-DAY REVOLVING CREDIT AGREEMENT dated as
of November 12, 2007 (the “ Fifth Amendment ”),
is executed by and among WINMARK CORPORATION, a Minnesota
corporation (the “ Company ”), WINMARK CAPITAL
CORPORATION, a Minnesota corporation (“ WCC ”),
WIRTH BUSINESS CREDIT, INC. (formerly known as Winmark Business
Solutions, Inc.), a Minnesota corporation (“ WBC
”), GROW BIZ GAMES, INC., a Minnesota corporation (“
Grow-Biz ” and, together with the Company, WCC and
WBC, the “ Loan Parties ” and individually and
without distinction, a “ Loan Party ”), and
LASALLE BANK NATIONAL ASSOCIATION, a national banking association
(the “ Lender ”).
RECITALS
A.
The Loan Parties and the Lender are parties to that certain 364-Day
Revolving Credit Agreement dated as of September 30, 2004, as
amended by that certain First Amendment to 364-Day Revolving Credit
Agreement dated as of August 25, 2005, that certain Second
Amendment to 364-Day Revolving Credit Agreement dated as of March
31, 2006, that certain Third Amendment to 364-Day Revolving Credit
Agreement dated as of May 19, 2006, and that certain Fourth
Amendment to 364-Day Revolving Credit Agreement dated as of August
15, 2007 (as amended, supplemented or modified, the “
Credit Agreement ”).
B.
The Loan Parties and the Lender wish to amend the Credit Agreement
to provide the Loan Parties with an option, subject to Lender
approval, to increase the Commitment pursuant to the terms and
conditions hereinafter set forth.
NOW THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the Loan Parties and the Lender hereby agree
as follows:
AGREEMENTS
1.
DEFINITIONS . Capitalized words and phrases used
herein without definition shall have the respective meanings
ascribed to such words and phrases in the Credit
Agreement.
2.
AMENDMENTS .
2.1.
Amended Definitions . Section 1.1 of the Credit
Agreement is hereby amended as follows:
2.1.1
Commitment . The definition of
“Commitment” is hereby amended in its entirety to read
as follows:
“ Commitment ”: The
Lender’s commitment to make Loans, and to issue Letters of
Credit, under this Agreement, as reduced or increased from time to
time pursuant to Section 6.3 or Section 6.4 ,
respectively. The initial amount of the Lender’s
commitment to make Loans is $25,000,000.
1
2.2.
Increase of Commitment . Section 6.4(a) of the Credit
Agreement is hereby amended in its entirety to read as
follows:
6.4
Increase of Commitment .
(a)
Provided no Unmatured Event of Default or Event of Default has
occurred and is continuing, upon written notice from the Company to
the Lender, the Loan Parties may from time to time request an
increase in the Commitment by an amount (for all such requests) not
exceeding $25,000,000; provided that any such request for an
increase shall be in a minimum integral amount of $5,000,000; and
provided , further , that in no event shall the
Commitment exceed $50,000,000.
3.
CONDITIONS
PRECEDENT . This Fifth Amendment shall become
effective as of the date first above written after receipt by the
Lender of, or compliance by the Loan Parties with, the
following:
3.1.
Fifth Amendment . This Fifth Amendment duly executed
by each Loan Party.
3.2.
Other Conditions . The Loan Parties shall have
satisfied such other conditions as specified by the Lender,
including the delivery of such other documents, certificates and
resolutions as the Lender may reasonably request.
4.
REPRESENTATIONS AND WARRANTIES . Each Loan Party
hereby certifies, represents and warrants to the Lender on the date
hereof after giving effect to this Fifth Amendment that:
4.1.
Authorization . Each Loan Party is duly authorized to
execute and deliver this Fifth Amendment and each other Loan
Document executed by such Loan Party in connection therewith (the
“ Amendment Documents ”), and is and will
continue to be duly authorized to borrow monies under the Credit
Agreement and to perform its obligations under the Credit
A
