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.


 


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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 Agreement and each
other Loan Document.


 


4.2.          No Conflicts; No Consent.  The execution and delivery of this Fifth
Amendment and the performance by any Loan Party of its obligations hereunder
and the Amendment Documents to which it is a party do not and will not (a)
require any consent or approval of any governmental agency or authority (other
than any consent or approval which has been obtained and is in full force and
effect), (b) conflict with (i) any provision of law, (ii) the charter, by-laws
or other organizational documents of such Loan Party, or (iii) any
agreement, indenture, instrument or other document, or any judgment, order or
decree, which is binding upon such Loan Party or any of its properties, or (c)
require, or result in, the creation or imposition of any Lien on any asset of
any Loan Party (other than Liens in favor of the Lender created pursuant to the
Collateral Documents).


 


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4.3.          Validity and Binding Effect.  Each of the Fifth Amendment and each
Amendment Document is a legal, valid and binding obligation of each Loan Party,
enforceable against such Loan Party in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency or other similar laws
of general application affecting the enforcement of creditors’ rights or by
general principles of equity limiting the availability of equitable remedies.


 


4.4.          Compliance with Credit Agreement.  The representation and warranties set forth
in Section 9 of the Credit Agreement are true and correct with the same effect
as if such representations and warranties had been made on the date hereof,
with the exception that all references to the financial statements shall mean
the financial statements most recently delivered to the Lender and except for
such changes as are specifically permitted under the Credit Agreement.


 


4.5.          No Event of Default.  No Unmatured Event of Default or Event of
Default has occurred and is continuing.


 


5.             AFFIRMATION OF CREDIT AGREEMENT; FURTHER
REFERENCES; AFFIRMATION OF SECURITY INTEREST.  The Lender
and each Loan Party each acknowledge and affirm 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 Fifth Amendment. 
Each Loan Party confirms to the Lender that the Obligations are and
continue to be secured by the security interest granted by the Loan Parties in
favor of the Lender under the Collateral Documents, and all of the terms,
conditions, provisions, agreements, requirements, promises, obligations,
duties, covenants and representations of the Company or any other Loan Party
under such documents and any and all other documents and agreements entered
into with respect to the obligations under the Credit Agreement are
incorporated herein by reference and are hereby ratified and affirmed in all
respects by each Loan Party.


 


6.             GENERAL.


 


6.1.          Governing Law; Severability.  This Fifth
Amendment and each Amendment Document shall be a contract made under and
governed by the internal laws of the State of Minnesota applicable to contracts
made and to be performed entirely within such state, without regard to conflict
of laws principles.  The provisions of
Section 15.17 and 15.18 of the Credit Agreement are hereby incorporated herein
by reference.  Wherever possible each
provision of this Fifth Amendment
and each Amendment Document shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of this Fifth
Amendment or any Amendment Document shall be prohibited by or invalid under
such law, such provision shall be ineffective to the extent of such prohibition
or invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Fifth
Amendment or such Amendment Document.


 


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6.2.          Successors and Assigns.  This
Fifth Amendment shall be binding upon each Loan Party, the Lender, and
their respective successors and assigns, and shall inure to the benefit of each
Loan Party and the Lender, and the successors and assigns of the Lender.


 


6.3.          Expenses.  The Loan Parties, jointly and severally,
shall pay all reasonable costs and expenses in connection with the preparation
of this Fifth Amendment and the
Amendment Documents including, without limitation, reasonable attorneys’ fees
and time charges of attorneys who may be employees of the Lender or any
affiliate or parent of the Lender.  The
Loan Parties shall pay any and all stamp and other taxes, UCC search fees,
filing fees and other reasonable costs and expenses in connection with the
execution and delivery of this Fifth Amendment and the Amendment Documents, and
agrees to save the Lender harmless from and against any and all liabilities
with respect to or resulting from any delay in paying or omission to pay such
costs and expenses.


 


6.4.          Counterparts.  This Fifth
Amendment may be executed in any number of counterparts, all of which shall
constitute one and the same agreement.


 


 


 


 


 


 


 


[The next page is the
signature page.]


 


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IN WITNESS WHEREOF, the parties hereto have executed
this Fifth Amendment as of the date first above written.


 


	
   

  	
   

  	
  WINMARK CORPORATION,

  
	
   

  	
   

  	
  a Minnesota corporation

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: 

  	
  /s/ Brett D. Heffes

  	
   

  
	
   

  	
   

  	
  Name: Brett D. Heffes

  
	
   

  	
   

  	
  Title: Chief Financial
  Officer and Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  WIRTH BUSINESS CREDIT, INC.,

  
	
   

  	
   

  	
  formerly known as Winmark Business Solutions, Inc., a Minnesota
  corporation

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: 

  	
  /s/ Brett D. Heffes

  	
   

  
	
   

  	
   

  	
  Name: Brett D. Heffes

  
	
   

  	
   

  	
  Title: Chief Financial
  Officer and Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  WINMARK CAPITAL CORPORATION,

  
	
   

  	
   

  	
  a Minnesota corporation

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: 

  	
  /s/ Brett D. Heffes

  	
   

  
	
   

  	
   

  	
  Name: Brett D. Heffes

  
	
   

  	
   

  	
  Title: Chief Financial
  Officer and Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  GROW BIZ GAMES, INC.,

  
	
   

  	
   

  	
  a Minnesota corporation

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: 

  	
  /s/ Brett D. Heffes

  	
   

  
	
   

  	
   

  	
  Name: Brett D. Heffes

  
	
   

  	
   

  	
  Title: Chief Financial
  Officer and Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  LASALLE
  BANK NATIONAL ASSOCIATION,

  
	
   

  	
   

  	
  a national banking
  association

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: 

  	
  /s/ Peter N. Pricco

  	
   

  
	
   

  	
   

  	
  Name: Peter N. Pricco

  
	
   

  	
   

  	
  Title: Vice President

  



 


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