IT AND
CONSTITUTE ITS LEGAL, VALID AND BINDING OBLIGATIONS ENFORCEABLE IN ACCORDANCE
WITH ITS TERMS.
9. (I)
THE EXECUTION, DELIVERY AND PERFORMANCE BY IT OF THIS AGREEMENT AND
ANY OTHER AGREEMENTS OR INSTRUMENTS REQUIRED HEREUNDER HAVE BEEN DULY AUTHORIZED
BY ALL NECESSARY CORPORATE ACTION AND DO NOT (I) REQUIRE ANY AUTHORIZATION,
CONSENT OR APPROVAL BY ANY GOVERNMENTAL DEPARTMENT, COMMISSION, BOARD, BUREAU,
AGENCY OR INSTRUMENTALITY, DOMESTIC OR FOREIGN, (II) VIOLATE ANY PROVISION OF
ANY LAW, RULE OR REGULATION OR OF ANY ORDER, WRIT, INJUNCTION OR DECREE
PRESENTLY IN EFFECT, HAVING APPLICABILITY TO IT, OR ITS ARTICLES OF
INCORPORATION, ORGANIZATION, ASSOCIATION OR SIMILAR CHARTER, THE OPERATING
AGREEMENT, OR SIMILAR BY-LAWS, OR (III) RESULT IN A BREACH OF OR CONSTITUTE A
DEFAULT UNDER ANY INDENTURE OR LOAN OR CREDIT AGREEMENT OR ANY OTHER AGREEMENT,
LEASE OR INSTRUMENT TO WHICH IT IS A PARTY OR BY WHICH IT OR ITS PROPERTIES MAY
BE BOUND OR AFFECTED.
10
NO WAIVER.
EXCEPT AS SET FORTH IN THIS AGREEMENT, THE EXECUTION OF THIS
AGREEMENT AND THE ACCEPTANCE OF ALL OTHER AGREEMENTS AND INSTRUMENTS RELATED
THERETO SHALL NOT BE DEEMED A WAIVER OF ANY EVENT OF DEFAULT UNDER THE NOTES OR
A WAIVER OF ANY BREACH, DEFAULT, OR EVENT OF DEFAULT UNDER ANY OTHER DOCUMENT OR
AGREEMENT, WHETHER OR NOT KNOWN TO WINMARK AND WHETHER OR NOT EXISTING ON THE
DATE OF THIS AGREEMENT.
11
NO ASSIGNMENT; COUNTERPARTS; ENTIRE AGREEMENT.
WINMARK AND BRIDGEFUNDS
AGREE AND ACKNOWLEDGE THAT WINMARK SHALL NOT BE PERMITTED TO ASSIGN ITS RIGHT,
TITLE AND INTEREST IN AND UNDER ANY NOTE TO ANY OTHER PERSON UNLESS SUCH PERSON
AGREES IN WRITING TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT.
THIS
AGREEMENT MAY BE EXECUTED IN ANY NUMBER OF COUNTERPARTS, EACH OF WHICH WILL BE
DEEMED TO BE AN ORIGINAL, AND ALL OF WHICH WILL CONSTITUTE ONE AND THE SAME
INSTRUMENT.
THIS AGREEMENT CONSTITUTES THE ENTIRE AGREEMENT AND UNDERSTANDING
OF THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF AND SUPERSEDES ALL
PRIOR WRITTEN AND ORAL NEGOTIATIONS, AGREEMENTS AND UNDERSTANDINGS WITH RESPECT
THERETO.
THE TERMS AND CONDITIONS OF THIS AGREEMENT EMBODY THE FULL EXTENT OF
THE PARTIES' REASONABLE EXPECTATIONS REGARDING THE MATTER DESCRIBED HEREIN.
12
OTHER AGREEMENT REMAIN IN FORCE.
EXCEPT AS SET FORTH IN THIS AGREEMENT,
ALL OBLIGATIONS, COVENANTS AND AGREEMENTS OF THE PARTIES UNDER EACH OF THE NOTES
AND THE PURCHASE AGREEMENT REMAIN IN FULL FORCE AND EFFECT.
[Signatures follow]
5
IN WITNESS WHEREOF, each of Winmark and BridgeFunds has caused this Agreement to
be executed on the date first written above by its respective officer or other
representative thereunder duly authorized.
WINMARK CORPORATION
By:
/s/ Anthony D. Ishaug
Name: Anthony D. Ishaug
Title: Chief Financial Officer
BRIDGEFUNDS, LLC
By:
/s/ Kenneth Klein
Name: Kenneth Klein
Title: Manager