Exhibit 10.1
FIRST AMENDMENT TO AMENDED AND
RESTATED
REVOLVING CREDIT
AGREEMENT*
This FIRST AMENDMENT TO
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT (this “
Amendment ”), made and entered into as of
August 12, 2009, is by and among WINMARK CORPORATION, (the
“ Company ”), the Subsidiaries of the Company
that are or may from time to time become parties to the Credit
Agreement (together with the Company and their respective
successors and assigns, the “ Loan Parties ”),
each lender from time to time party to the Credit Agreement (the
“ Lenders ”), and BANK OF AMERICA, N.A. (as
successor by merger to LaSalle Bank National Association) as
Administrative Agent for the Lenders (the “ Agent
”).
RECITALS
1.
The Lenders, the Agent, the Loan Parties and The PrivateBank and
Trust Company, as Documentation Agent (the “ Documentation
Agent ”), entered into an Amended and Restated Revolving
Credit Agreement dated as of June 10, 2008, (as the same may
from time to time be amended, restated, or modified, the “
Credit Agreement ”).
2.
The Loan Parties have elected to reduce the amount of the Aggregate
Commitments pursuant to Section 6.3 of the Credit Agreement
and the Lenders and the Loan Parties desire to amend certain
provisions of the Credit Agreement to accommodate such reduction,
subject to the terms and conditions set forth in this
Amendment.
AGREEMENT
NOW, THEREFORE,
for good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the
parties hereto hereby covenant and agree to be bound as
follows:
Section 1.
Capitalized Terms . Capitalized terms used
herein and not otherwise defined herein shall have the meanings
assigned to them in the Credit Agreement, unless the context shall
otherwise require.
Section 2.
Amendment . The Credit Agreement is
hereby amended as follows:
Section 2.1
Commitments and Applicable
Percentages . Schedule 2.1
to the Credit Agreement is hereby amended and restated to read as
set forth on Exhibit A to this Amendment, which Exhibit A
is hereby made a part of the Credit Agreement as Schedule
2.1 thereto.
Section 2.2
Real Property . Schedule 9.17 to the
Credit Agreement is hereby amended and restated to read as set
forth on Exhibit B to this Amendment, which Exhibit B is
hereby made a part of the Credit Agreement as Schedule 9.17
thereto.
* Material has been omitted pursuant to a
request for confidential treatment and the material has been filed
separately.
Section 2.3
Accounts . Schedule 9.23
to the Credit Agreement is hereby amended and restated to read as
set forth on Exhibit C to this Amendment, which Exhibit C
is hereby made a part of the Credit Agreement as Schedule
9.23 thereto.
Section 3.
Effectiveness of
Amendment .
Upon delivery by
the Loan Parties of, and compliance by the Loan Parties with, the
following, this Amendment shall become effective
immediately:
Section 3.1
Amendment . This Amendment, duly executed
by the Loan Parties.
Section 3.2
Notes . Amended and Restated
Notes, duly executed by the Loan Parties, in favor of each
Lender.
Section 3.3
Resolutions
.
A copy of the resolutions of
the board of directors (or similar governing body) of each Loan
Party authorizing the execution, delivery and performance of this
Amendment and any other documents or instruments to be executed by
such Loan Party in connection with this Amendment (collectively,
the “ Amendment Documents ”) certified as true
and accurate by, with respect to Winmark Corporation, one of its
senior officers, and with respect to each other Loan Party, one of
its senior officers or its duly appointed keeper of the records,
along with a certification by such authorized individual
(i) certifying there has been no amendment to the Articles of
Incorporation and Bylaws of such Loan Party since true and accurate
copies of the same were delivered to the Agent in connection with
the consummation of the Credit Agreement, or if such documents have
been amended, certifying that true and accurate copies of such
amendment have been attached thereto, or if such documents have not
been previously delivered, attaching such documents and certifying
that such documents are true, accurate and complete, and
(ii) identifying each officer of such Loan Party authorized to
execute the Amendment Documents, and certifying as to specimens of
such officer’s signatures and such officer’s incumbency
in such offices as such officer holds.
Section 3.4
Other . The Loan Parties shall have
satisfied such other conditions as specified by the Agent,
including payment of all invoiced but unpaid legal fees and
expenses incurred by the Agent through the date of this Amendment
in connection with the Credit Agreement and the Amendment
Documents.
2
Section 4.
Representations, Warranties,
Authority, No Adverse Claim .
Section 4.1
Reassertion of Representations
and Warranties . The Loan Parties hereby
represent to the Agent and the Lenders that on and as of the date
hereof and after giving effect to this Amendment (a) all
of the representations and warranties contained in the Credit
Agreement are true, correct and complete in all respects as of the
date hereof as though made on and as of such date, except for
changes permitted by the terms of the Credit Agreement, and
(b) there will exist no Default, Event of Default or Unmatured
Event of Default under the Credit Agreement as amended by this
Amendment on such date which has not been waived by the
Bank.
Section 4.2
Authority, No Conflict, No
Consent Required . Each Loan Party represents
and warrants to the Agent and the Lenders that the such Loan Party
has the power and legal right and authority to enter into the
Amendment Documents and has duly authorized as appropriate the
execution and delivery of the Amendment Documents and other
agreements and documents executed and delivered by such Loan Party
in connection herewith or therewith by proper corporate action, and
none of the Amendment Documents nor the agreements contained herein
or therein contravenes or constitutes a default under any
agreement, instrument or indenture to which such Loan Party is a
party or a signatory or a provision of such Loan Party’s
Articles of Incorporation, Bylaws or any other agreement or
requirement of law, or result in the imposition of any Lien on any
of its property under any agreement binding on or applicable to
such Loan Party or any of its property except, if any, in favor of
the Agent for the benefit of the Lenders. The Loan Parties
represent and warrant that no consent, approval or authorization of
or registration or declaration with any Person, including but not
limited to any governmental authority, is required in connection
with the execution and delivery by the Loan Parties of the
Amendment Documents or other agreements and documents executed and
delivered by the Loan Parties in connection therewith or the
performance of obligations of the Loan Parties therein described,
except for those which the Loan Parties have obtained or provided
and as to which the Loan Parties have delivered certified copies of
documents evidencing each such action to the Agent.
Section 4.3
No Adverse Claim
.
The Loan Parties warrant,
acknowledge and agree that no events have been taken place and no
circumstances exist at the date hereof which would give the Loan
Parties a basis to assert a defense, offset or counterclaim to any
claim of the Lenders and the Agent with respect to the
Obligations.
3
Section 5.
Affirmation of Credit Agreement,
Further References, Affirmation of Security Interest
. Each Lender, the
Agent and each Loan Party acknowledges and affirms that the Credit
Agreement, as hereby amended, is hereby ratified and confirmed in
all respects and all terms, conditions and provisions of the Credit
Agreement, except as amended by this Amendment, shall remain
unmodified and in full force and effect. All references in
any document or instrument to the Credit Agreement are hereby
amended and shall refer to the Credit Agreement as amended by this
Amendment. Each Loan Party confirms to the Lenders and the
Agent that the Obligations under the Security Agreement to which it
is a
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