Amendment No. 3 (00026407).DOCX

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Exhibit 10.5




AMENDMENT NO. 3 TO
INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT
This Amendment No. 3 to Intercreditor and Collateral Agency Agreement (this “Amendment”), dated as of this 10th day of September, 2021, is by and among CIBC Bank USA, formerly known as The PrivateBank and Trust Company (“CIBC”), The Prudential Insurance Company of America (“Prudential”), Pruco Life Insurance Company (“Pruco”), Prudential Retirement Guaranteed Cost Business Trust (“Prudential Guaranteed”), PAR U Hartford Life Insurance Comfort Trust (“PAR”), Prudential Annuities Life Assurance Corporation (“PALA”) and The Prudential Life Insurance Company, Ltd. (“PLIC”), CIBC, in its capacity as Bank Agent, and CIBC, in its capacity as Collateral Agent.  
WITNESSETH:
WHEREAS, the parties to this Amendment are party to the Intercreditor and Collateral Agency Agreement dated as of May 14, 2015 (the “Intercreditor Agreement”), as the same shall be amended by this Amendment and amended or otherwise modified from time to time; 
WHEREAS, the Borrowers and CIBC are entering into the Amendment No. 9 to Credit Agreement, dated as of the date hereof (“Bank Amendment”); 
WHEREAS, the Borrowers, Prudential, Pruco, Prudential Guaranteed, PAR, PALA and PLIC are entering into the Amendment No. 5 to Note Purchase Agreement, dated as of the date hereof (the “Note Amendment”); 
WHEREAS, as a condition to the execution and delivery of each of the Bank Amendment and the Note Amendment, the parties thereto require the execution and delivery of this Amendment by the parties hereto.
NOW, THEREFORE, for the above reasons, in consideration of the mutual covenants herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
SECTION 1.Definitions.  Capitalized terms used but not defined in this Amendment have the meanings assigned thereto in the Intercreditor Agreement, as amended by this Amendment. 
SECTION 2.Amendments.  Effective as of the Effective Date (as defined below):
2.1Section 1 of the Intercreditor Agreement is hereby amended by inserting in appropriate alphabetical order the following defined term:
“Third Amendment” means that certain Amendment No. 3 to Intercreditor and Collateral Agency Agreement dated as of September 10, 2021 by and among the Collateral Agent, the Bank Lender and the Noteholders.



2.2Section 8 of the Intercreditor Agreement is hereby amended by amending and restating paragraph (a) thereof in its entirety to read as follows:
(a)(i)  The Bank Agent and each Bank Lender agrees that, without the consent in writing by Noteholders holding a majority of the outstanding principal amount of the Senior Secured Notes, it will not (A) make any Revolving Loan or issue any Letter of Credit if such loans or issuances would cause the aggregate outstanding principal amount of Revolving Loans and undrawn face amount of Letters of Credit to exceed the sum of (x) $30,000,000 less (y) the amount of all permanent reductions of the "Commitment" (as defined in the Credit Agreement) after the date of the Third Amendment, (B) except for (x) Persons becoming Borrowers after the date hereof and (y) the Guaranty Agreements, retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to all or any part of the Senior Indebtedness, or (C) from and after the institution of any bankruptcy or insolvency proceeding involving any Loan Party, as respects the Collateral enter into any agreement with such Loan Party with respect to post-petition usage of cash collateral, post-petition financing arrangements or adequate protection. (ii)  Each Noteholder agrees that, without the consent in writing by the Bank Lenders holding a majority of the outstanding principal amount of the Loan and Reimbursement Obligations and Outstanding Letters of Credit Exposure, it will not (A) make note purchases, advances, loans or extensions of credit pursuant to the Note Agreement if such purchases, advances, loans or extensions of credit would cause the outstanding aggregate principal amount of Senior Indebtedness under the Note Agreement to exceed the sum of (x) $48,750,000 in the aggregate under Senior Secured Notes issued and outstanding as of the date of the Third Amendment (including Additional Notes issued on the date of the Third Amendment) plus (y) $5,000,000 in the aggregate under Additional Notes issued after the date of the Third Amendment less (z) the amount of all principal payments made on the Senior Secured Notes after the date of the Third Amendment, (B) except for (x) Persons becoming Borrowers after the date hereof and (y) the Guaranty Agreements, retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to all or any part of the Senior Indebtedness, or (C) from and after the institution of any bankruptcy or insolvency proceeding involving any Loan Party, as respects the Collateral enter into any agreement with such Loan Party with respect to post-petition usage of cash collateral, post-petition financing arrangements or adequate protection.
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SECTION 3.Effectiveness.  This Amendment shall become effective as of the date (the “Effective Date”) upon which this Amendment has been executed and delivered by each party hereto concurrently with the effectiveness of the Bank Amendment and the Note Amendment.
SECTION 4.Confirmations.  Each party hereto acknowledges and agrees that (i) each reference to the “Credit Agreement” in any Collateral Documents shall include the Credit Agreement as amended by the Bank Amendment and (ii) each reference to the “Note Agreement” in any Collateral Documents shall include the Note Agreement as amended by the Note Amendment.



SECTION 5.Effect of Amendment.  Upon the effectiveness of this Amendment, each reference to the Intercreditor Agreement in each Collateral Document and in any other document, instrument or agreement shall mean and be a reference to the Intercreditor Agreement as modified by this Amendment.  Except as specifically set forth in Section 2, the Intercreditor Agreement shall remain in full force and effect and is hereby ratified and confirmed in all respects.  Except as expressly amended hereby, the Intercreditor Agreement and each of the Collateral Documents are hereby ratified and confirmed in all respects and shall continue in full force and effect.  Except as specifically stated in this Amendment, the execution, delivery and effectiveness of this Amendment shall not (a) amend the Intercreditor Agreement, (b) operate as a waiver of any right, power or remedy of the Collateral Agent, any Bank Lender, the Bank Agent or any Noteholder, or (c) constitute a waiver of, or consent to any departure from, any provision of the Intercreditor Agreement at any time.  The execution, delivery and effectiveness of this Amendment shall not be construed as a course of dealing or other implication that the Collateral Agent, any Bank Lender, the Bank Agent or any Noteholder has agreed to or is prepared to grant any consents or agree to any amendment to the Intercreditor Agreement in the future, whether or not under similar circumstances.
SECTION 6.Entire Agreement.  The Intercreditor Agreement, as amended by this Amendment, constitutes the entire agreement and understanding between the parties to each with respect to the subject matter thereof and hereof and supersedes any and all oral communication and prior writings in respect thereof or hereof.
SECTION 7.Counterparts. This Amendment may be executed in several counterparts and by each party on a separate counterpart, each of which, when so executed and delivered, shall be an original, but all of which together shall constitute but one and the same instrument.
SECTION 8.Governing Law.  THIS AMENDMENT SHALL BE GOVERNED AS TO VALIDITY, INTERPRETATION, ENFORCEMENT AND EFFECT BY THE LAWS OF THE STATE OF MINNESOTA (EXCLUDING ANY CONFLICTS OF LAW RULES WHICH WOULD OTHERWISE CAUSE THIS AMENDMENT TO BE GOVERNED BY THE LAWS OF ANY OTHER JURISDICTION).
SECTION 9.Joinder.  Each of PALA and PLIC, as additional Noteholders, hereby (i) consents and agrees to all the provisions of the Intercreditor Agreement applicable to it, (ii) agrees that it will be a “Noteholder” under the Note Agreement, (iii) adopts the Intercreditor Agreement applicable to it as a Noteholder with the same force and effect as if it was originally a party thereto, and (iv) agrees to be bound by the terms of the Intercreditor Agreement applicable to it as a Noteholder.  For purposes of Section 10 of the Intercreditor Agreement, following is the address for notices to each of PALA and PLIC:
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c/o Prudential Private Capital

	60 South Sixth St.
Suite 3710
Minneapolis, MN 55402

	Attention:  Managing Director

	cc:  Vice President and Corporate Counsel






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[Signature page follows.]
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the day and year first written above.
CIBC BANK USA, in its individual capacity, as Bank Agent, as the sole Bank Lender and as Collateral Agent


By:/s/ Leanne Manning​ ​
Name:  Leanne Manning
Title: Managing Director
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
By: PGIM, Inc., as investment manager


By:  /s/ Anna Sabiston​ ​​ ​​ ​
         Vice President
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PRUCO LIFE INSURANCE COMPANY
By: PGIM, Inc., as investment manager


By:  /s/ Anna Sabiston​ ​​ ​​ ​
         Vice President
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PRUDENTIAL RETIREMENT 
 GUARANTEED COST BUSINESS 
TRUST
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By:Prudential Retirement Insurance and 
Annuity Company (as Grantor)

By:PGIM, Inc. (as Investment Manager)
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By:  /s/ Anna Sabiston​ ​​ ​​ ​
Vice President
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PAR U HARTFORD LIFE INSURANCE
PAR U HARTFORD LIFE INSURANCE COMFORT TRUST
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By:Prudential Arizona Reinsurance
Universal Company, as Grantor
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By:PGIM, Inc., as Investment Manager
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By:  /s/ Anna Sabiston​ ​​ ​​ ​
Vice President
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PRUDENTIAL ANNUITIES LIFE ASSURANCE CORPORATION
By: PGIM, Inc., as investment manager
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By:  /s/ Anna Sabiston​ ​​ ​​ ​
         Vice President
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THE PRUDENTIAL LIFE INSURANCE COMPANY, LTD.
By: PGIM Japan Co., Ltd., as Investment Manager

By: PGIM, Inc., as Sub-Adviser
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By:  /s/ Anna Sabiston​ ​​ ​​ ​
         Vice President
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Acknowledged, consented and agreed:
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WINMARK CORPORATION
By:  /s/ Anthony D. Ishaug​ ​
Name:Anthony D. Ishaug
Title:Executive Vice President and Chief Financial Officer
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WIRTH BUSINESS CREDIT, INC.
By:   /s/ Anthony D. Ishaug​ ​
Name:Anthony D. Ishaug
Title:Chief Financial Officer and Treasurer
WINMARK CAPITAL CORPORATION
By:  /s/ Anthony D. Ishaug​ ​
Name:Anthony D. Ishaug
Title:Chief Financial Officer and Treasurer
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GROW BIZ GAMES, INC.
By:  /s/ Anthony D. Ishaug​ ​
Name:Anthony D. Ishaug
Title:Chief Financial Officer, Treasurer and Secretary

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