AMENDMENT NO. 10

to

CREDIT AGREEMENT

​

THIS AMENDMENT NO. 10 TO CREDIT AGREEMENT (this “Amendment”) is dated as of April 12, 2022 by and among WINMARK CORPORATION, WIRTH BUSINESS CREDIT, INC., WINMARK CAPITAL CORPORATION, and GROW BIZ GAMES, INC. (each of the foregoing are referred to herein individually as a “Loan Party” and collectively as the “Loan Parties”), and CIBC BANK USA (the “Administrative Agent” and a “Lender”).

RECITALS:

​

A.The Loan Parties, the Administrative Agent, and the Lender are parties to that certain Credit Agreement, dated as of July 13, 2010, as amended prior to the date hereof (the “Credit Agreement”).

​

B. The Loan Parties, the Administrative Agent, and the Lender desire to further amend the Credit Agreement as provided herein.

​

AGREEMENTS:

​

IN CONSIDERATION of the premises and mutual covenants herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

​

WHEREAS, the Lenders have agreed to make available to the Loan Parties a revolving credit facility (which includes letters of credit) and a delayed draw term loan facility upon the terms and conditions set forth in this Credit Agreement (this “Agreement”).

“Additional Prudential Debt”: Means Prudential Notes issued under the Private Shelf Agreement on or after the Tenth Amendment Effective Date.

“Aggregate Commitments”:  The Commitments of all Lenders.  

“Aggregate Revolving Commitments”:  The Revolving Commitments of all Lenders, as reduced from time to time pursuant to Section 6.3.

“Applicable Margin”: For any day, the rate per annum set forth below opposite the level (the “Level”) then in effect, it being understood that the Applicable Margin for (i) SOFR Loans shall be the percentage set forth under the column “SOFR Margin” and (ii) Base Rate Loans shall be the percentage set forth under the column “Base Rate Margin”:

​

​

The SOFR Margin and the Base Rate Margin shall be adjusted, to the extent applicable, on the fifth (5th) Business Day after the Loan Parties provide or are required to provide the annual or quarterly financial statements and other information pursuant to Sections 10.1.1 or 10.1.3, as applicable, and the related Compliance Certificate, pursuant to Section 10.1.4.  Notwithstanding anything contained in this paragraph to the contrary, (a) if the Loan Parties fail to deliver the financial statements and Compliance Certificate in accordance with the provisions of Sections 10.1.1, 10.1.3 and 10.1.4, the SOFR Margin and the Base Rate Margin shall be based upon Level I above beginning on the date such financial statements and Compliance Certificate were required to be delivered until the fifth (5th) Business Day after such financial statements and Compliance Certificate are actually delivered, whereupon the Applicable Margin shall be determined by the then current Level; (b)  no reduction to any Applicable Margin shall become effective at any time when an Unmatured Event of Default or an Event of Default has occurred and is continuing; and (c) the initial Applicable Margin on the Tenth Amendment Effective Date shall be based on the Level II until the date on which the financial statements and Compliance Certificate are required to be delivered for the Fiscal Quarter ending after the Tenth Amendment Effective Date.

“Business Day”: A day of the week (but not a Saturday, Sunday or holiday) on which the Chicago, Illinois offices of Agent are open to the public for carrying on substantially all of Agent’s business functions, provided, however, that when used in the context of a SOFR Loan, the term “Business Day” shall also exclude any day that is not also a SOFR Business Day.  Unless specifically referenced in this Agreement as a Business Day, all references to “days” shall be to calendar days.

“Commitment”:  As to each Lender, its obligation to (a) make Revolving Loans to the Company pursuant to Section 2.1.1 (the “Revolving Commitment”), (b) purchase

participations in L/C Obligations, and (c) make Delayed Draw Term Loans to the Company pursuant to Section 2.1.3 (the “Delayed Draw Term Loan Commitment”), in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Lender’s name on Schedule 2.1 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement.

“Continue”, “Continuation” and “Continued”: Means the continuation of a SOFR Loan based on Term SOFR from one Term SOFR Interest Period to another Term SOFR Interest Period pursuant to Section 2.2.3.

“Delayed Draw Term Loan”: As defined in Section 2.1.3.

“Delayed Draw Term Loan Availability Period”: With respect to the Delayed Draw Term Loan Commitment, the period commencing on the Tenth Amendment Effective Date to the earliest to occur of (a) October 12, 2023, (b) the date of termination of the Delayed Draw Term Loan Commitment pursuant to Section 13.2, and (c) the date on which each Lender has funded the maximum amount of such Lender’s Delayed Draw Term Loan Commitment.

“Delayed Draw Term Loan Maturity Date”: The earlier to occur of (a) April 12, 2029, or (b) such other date on which the Commitment terminates pursuant to Section 13.

“Fixed Charge Coverage Ratio”:  As of any date of determination and calculated for a trailing twelve month period ending on such date of determination, the ratio of (a) the total EBITDA of the Loan Parties for such period, minus (i) the sum of income taxes paid in cash by the Loan Parties in such period, (ii) the sum of all Capital Expenditures made by the Loan Parties in such period, and (iii) the sum of all distributions (excluding any Special Dividend made in such period) made by the Loan Parties in such period, divided by (b) the sum for such period of (i) cash interest expense plus (ii) all scheduled payments of principal on Debt (excluding, (A) any Specified Principal Payment and (B) for the avoidance of doubt, any payment pursuant to Section 6).

“Floor”: A rate of interest equal to 0.00%.

“Lender”:  As defined in the Preamble.  In addition to the foregoing, for the purpose of identifying the Persons entitled to share in the Collateral and the proceeds thereof under, and in accordance with the provisions of, this Agreement and the Collateral Documents, the term “Lender” shall include Affiliates of a Lender providing a Bank Product.

“Loan or Loans”:  The Revolving Loans and the Delayed Draw Term Loans, or any one or more of them, made by the Lenders to the Loan Parties under this Agreement.

“Loan Availability”:  An amount equal to the Aggregate Revolving Commitments.

“Net Cash Proceeds”:  

(a)With respect to any Asset Disposition, the aggregate cash proceeds (including cash proceeds received pursuant to policies of insurance or by way of deferred payment of principal pursuant to a note, installment receivable or otherwise, but only as and when received) received by any Loan Party pursuant to such Asset Disposition net of (i) the direct costs relating to such sale, transfer or other disposition (including sales commissions and legal, accounting and investment banking fees), (ii) taxes paid or reasonably estimated by Loan Parties to be payable as a result thereof (after taking into account any available tax credits or deductions and any tax sharing arrangements) and (iii) amounts required to be applied to the repayment of any Debt secured by a Lien on the asset subject to such Asset Disposition (other than the Loans);

(b)with respect to any issuance of Capital Securities, the aggregate cash proceeds received by any Loan Party pursuant to such issuance, net of the direct costs relating to such issuance (including sales and underwriters’ commissions); and

with respect to any issuance of Debt (other than the Prudential Notes issued on or about the Fourth Amendment Effective Date and on or about the Fifth Amendment Effective Date and (ii) constituting Additional Prudential Debt), the aggregate cash proceeds received by any Loan Party pursuant to such issuance, net of the direct costs of such issuance (including up-front, underwriters’ and placement fees).

“Note”:  Each promissory note executed by the Loan Parties in favor of a Lender in connection with this Agreement in the form of Exhibit A, or, with respect to the Delayed Draw Term Loans, the form attached as Exhibit E to the Tenth Amendment, in each case, as they may be amended, modified, supplemented, restated or replaced from time to time, or any one or more of them.

“Outstandings”:  At any time, the sum of (a) the aggregate principal amount of all outstanding Revolving Loans after giving effect to any borrowings and prepayments or repayments occurring on such date, plus (b) the Stated Amount of all Letters of Credit.

“Pro Rata Share”:  With respect to a Lender’s obligation to make Loans, participate in L/C Obligations, reimburse the L/C Issuer, and receive payments of principal, interest, fees, costs, and expenses with respect thereto, (x) prior to the Aggregate Commitments being terminated or reduced to zero, the percentage obtained by dividing (i) such Lender’s Commitment, by (ii) the Aggregate Commitments of all Lenders and (y) from and after the time the Aggregate Commitments have been terminated or reduced to zero, the percentage obtained by dividing (i) the aggregate unpaid principal amount of such Lender’s Outstandings plus the aggregate principal amount of such Lender’s Delayed Draw Term Loans by (ii) the aggregate unpaid principal amount of all Outstandings plus the aggregate principal amount of all outstanding Delayed Draw Term Loans.

“Program Repurchases”: Immaterial repurchases or redemptions of Capital Securities of the Company using operating cash on the balance sheet of the Company, proceeds of Loans, or the proceeds of Additional Prudential Debt, in each case pursuant to a share repurchase program approved by the Company’s board of directors.

“Prudential Notes”: Those certain senior secured promissory notes issued by the Loan Parties pursuant to (i) that certain Note Agreement dated as of May 14, 2015, by and among the Loan Parties and Prudential, as it may be amended, modified, supplemented, restated or replaced from time to time and (ii) the Prudential Shelf Agreement.

“Prudential Intercreditor Agreement”:  That certain Amended and Restated Intercreditor and Collateral Agency Agreement, dated as of the Tenth Amendment Effective Date by and among Prudential, the Administrative Agent, the Lenders, the holders of Additional Prudential Debt party thereto from time to time and the Loan Parties, as it may be amended, modified, supplemented, restated or replaced from time to time.

“Prudential Shelf Agreement”: That certain Private Shelf Agreement, dated as of the Tenth Amendment Effective Date, by and among the Loan Parties, PGIM, Inc. and the purchasers of any notes thereunder after the Tenth Amendment Effective Date, as it may be amended, modified, supplemented, restated or replaced from time to time.

“Reference Time”: With respect to any setting of the then-current Benchmark means (a) if such Benchmark is Term SOFR, then approximately a time substantially consistent with market practice two (2) SOFR Business Days prior to (i) if the date of such setting is a SOFR Business Day, such date or (ii) otherwise, the SOFR Business Day immediately preceding such date and (b) if such Benchmark is not Term SOFR, then the time determined by Agent in accordance with the Benchmark Conforming Changes. If by 5:00 pm (New York City time) on any interest lookback day, Term SOFR in respect of such interest lookback day as described in clause (a) above has not been published on the SOFR Administrator’s Website, then Term SOFR for such interest lookback day will be Term SOFR as published in respect of the first preceding SOFR Business Day for which Term SOFR was published on the SOFR Administrator’s Website; provided that such first preceding SOFR Business Day is not more than three (3) SOFR Business Days prior to such interest lookback day.

“Regular Dividends” means those regular quarterly cash dividends paid by the Company in respect of its Capital Securities consistent with past practices of the Company.

“Revolving Loans”: As defined in Section 2.1.1.

“SOFR”: With respect to any SOFR Business Day, a rate per annum equal to the secured overnight financing rate for such SOFR Business Day.

“SOFR Administrator”: CME Group Benchmark Administration Limited (CBA) (or a successor administrator of Term SOFR selected by Agent in its reasonable discretion).

“SOFR Administrator’s Website”: The website of the SOFR Administrator, currently at https://www.cmegroup.com/market-data/cme-group-benchmark-administration/term-sofr.html, or any successor source for Term SOFR identified by the SOFR Administrator from time to time.

“SOFR Borrowing”: The SOFR Loans comprising a borrowing of Loans.

“SOFR Business Day”: Any day other than a Saturday or Sunday or a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities.

“SOFR Loan”: A Loan that bears interest at a rate based on Term SOFR.

“SOFR Rate”: With respect to each day during which interest accrues on a SOFR Loan, the rate per annum (expressed as a percentage) equal to either (a) Term SOFR for the applicable Term SOFR Interest Period for such day; or (b) if the then-current Benchmark has been replaced with a Benchmark Replacement pursuant to Section 4.5, such Benchmark Replacement for such day.

“Specified Principal Payment”: Means (i) the $30,000,000 principal payment due on September 10, 2028 with respect to the Company’s $30,000,000.00 3.18% Senior Secured Notes issued to Prudential, as the same are outstanding as of the Tenth Amendment Effective Date and (ii) with respect to any Prudential Note evidencing any Additional Prudential Debt, to the extent such Additional Prudential Debt consists of a non-amortizing term note that is due and payable in one principal payment on the stated maturity date of such Additional Prudential Debt, such principal payment, so long as such principal payment consists of the payment in full of such note and, in each case with respect to the payments described in clauses (i) and clauses (ii), such payments are made with the proceeds of Debt that is permitted under Section 11.1 of the Credit Agreement.

“Tenth Amendment”: That certain Amendment No. 10 to Credit Agreement, dated as of April 12, 2022, by and among the Loan Parties, the Administrative Agent and the Lenders.

​

“Tenth Amendment Effective Date”:  April 12, 2022.

“Term SOFR” With respect to each day of any applicable SOFR Loan for any Term SOFR Interest Period, the greater of (a) the forward-looking term rate for a period comparable to such Term SOFR Interest Period based on SOFR that is published by the SOFR Administrator and is displayed on the SOFR Administrator’s Website at approximately the Reference Time for such Term SOFR Interest Period and (b) the Floor. Unless otherwise specified in any amendment to this Agreement entered into in accordance with Section 4.5, in the event that a Benchmark Replacement with respect to Term SOFR is implemented, then all references herein to Term SOFR shall be deemed references to such Benchmark Replacement.

​

“Term SOFR Interest Period”: With respect to that portion of the Loan bearing interest based on Term SOFR, a period of 1 month to the extent such tenor is an Available Tenor, commencing on a SOFR Business Day as selected by the Company in accordance with this Agreement, or on such other SOFR Business Day as is acceptable to Agent and the Company; provided, however, that (a) if any Term SOFR Interest Period would end on a day other than a Business Day, such Term SOFR Interest Period shall be extended to the

next succeeding Business Day unless such next succeeding Business Day would fall in the next calendar month, in which case such Term SOFR Interest Period shall end on the next preceding Business Day, (b) any Term SOFR Interest Period that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such Term SOFR Interest Period) shall end on the last Business Day of the last calendar month of such Term SOFR Interest Period, (c) no Term SOFR Interest Period shall extend beyond the Maturity Date and (d) no tenor that has been removed from this definition pursuant to Section 4.5 shall be available for specification in any borrowing request.  For purposes hereof, the date of a Loan or SOFR Borrowing initially shall be the date on which such Loan or SOFR Borrowing is made and thereafter shall be the effective date of the most recent conversion or continuation of such Loan or SOFR Borrowing.

​

“Termination Date”:  The earlier to occur of (a) April 12, 2027, or (b) such other date on which the Commitment terminates pursuant to Section 13.

​

2.1Commitments.  On and subject to the terms and conditions of this Agreement, each Lender severally agrees to make Loans to, and the L/C Issuer agrees to issue Letters of Credit for the account of, the Loan Parties, jointly or severally, as follows:

2.1.1Revolving Loan Commitment.  Each Lender severally agrees to make loans on a revolving basis (each a “Revolving Loan”) from time to time until the Termination Date in the amounts as the Company may request from the Lender; provided, however, that after giving effect to any Revolving Loan, (i) the Outstandings will not at any time exceed Loan Availability and (ii) the aggregate Outstandings of any Lender shall not exceed such Lender’s Revolving Commitment.  Within the limits of each Lender’s Revolving Commitment, and subject to the other terms and conditions hereof, Company may borrow under this Section 2.1.1, prepay under Section 6.1.1, and reborrow under this Section 2.1.1.  

2.1.2.L/C Commitment.  Subject to Section 2.3.1, the L/C Issuer, in reliance on the agreements of the other Lenders set forth herein, agrees to issue letters of credit, in each case containing such terms and conditions as are permitted by this Agreement and are reasonably satisfactory to the L/C Issuer (each, a “Letter of Credit”), at the request of and for the account of the Company from time to time before the scheduled Termination Date; provided that (a) the aggregate Stated Amount of all Letters of Credit shall not at any time exceed $5,000,000 and (b) the Outstandings shall not at any time exceed Loan Availability.

2.1.3Delayed Draw Term Loans.  Each Lender severally agrees to make term loans (each such loan, a “Delayed Draw Term Loan”) to the Company from time to time during the Delayed Draw Term Loan Availability Period in the amounts as the Company may request from the Lender; provided, however, that after giving effect to any Delayed Draw Term Loan, (i) the aggregate amount of Delayed Draw Term Loans made by a Lender shall not exceed such Lender’s Delayed Draw Term Loan Commitment, (ii) the aggregate

outstanding Delayed Draw Term Loans shall not exceed $30,000,000, and (iii) there shall be no more than five (5) Delayed Draw Term Loans outstanding.  Each Delayed Draw Term Loan shall be a term loan and may not be reborrowed.

2.2.1Various Types of Loans.  Each Revolving Loan shall be divided into tranches which are either a Base Rate Loan  or a SOFR Loan (each, a “type” of Revolving Loan), as the Company shall specify in the related Notice of Borrowing or conversion pursuant to Section 2.2.2 or 2.2.3.  SOFR Loans having the same Term SOFR Interest Period which expire on the same day are sometimes called a “Group” or collectively “Groups”.  Base Rate Loans and SOFR Loans may be outstanding at the same time, provided that not more than three (3) different Groups of SOFR Loans shall be outstanding at any one time. All borrowings, conversions and repayments of Revolving Loans shall be effected so that each Lender will have a ratable share (according to its Pro Rata Share) of all types and Groups of Revolving Loans.

2.2.2Borrowing Procedures.

​

(a)The Company shall give written notice (each such written notice, a “Notice of Borrowing”) substantially in the form of Exhibit D or telephonic notice (followed immediately by a Notice of Borrowing) to Agent of each proposed borrowing of a Revolving Loan not later than (a) in the case of a Base Rate Loan, 11:00 A.M., Minneapolis time, on the proposed date of such borrowing, and (b) in the case of a SOFR Loan, 11:00 A.M., Minneapolis time, at least three Business Days prior to the proposed date of such borrowing.  Each such notice shall be effective upon receipt by Agent, shall be irrevocable, and shall specify the date, amount and type of borrowing and, in the case of a SOFR Loan, the initial Term SOFR Interest Period therefor.  Each Base Rate Loan shall be in an aggregate amount of at least $100,000 or a higher integral multiple of $100,000.  Each SOFR Loan shall be in an aggregate amount of at least $500,000 or a higher integral multiple of $100,000. If the Company fails to timely select such Term SOFR Interest Period as aforesaid, the Term SOFR Interest Period shall be a one-month Term SOFR Interest Period.

​

(b)Following receipt of a Notice of Borrowing, Agent shall promptly notify each Lender of the amount of its Applicable Percentage of the applicable Revolving Loans.  Each Lender shall make the amount of its Revolving Loan available to Agent in immediately available funds at Administrative Agent’s Office not later than 1:00 p.m. on the Business Day specified in the applicable Notice of Borrowing.  Upon satisfaction of the applicable conditions set forth in Section 12, Agent shall make all funds so received

available to the Company in like funds as received by Agent either by (i) crediting the account of Company on the books of CIBC with the amount of such funds or (ii) wire transfer of such funds, in each case in accordance with instructions provided to (and reasonably acceptable to) Agent by the Company; provided, however, that if, on the date the Notice of Borrowing with respect to such borrowing is given by the Company, there are Unreimbursed Amounts outstanding, then the proceeds of such borrowing first, shall be applied, to the payment in full of any such Unreimbursed Amounts, and second, shall be made available to the Company as provided above.

​

2.2.3Conversion and Continuation Procedures.  

(a)Subject to Section 2.2.1, the Company may, upon irrevocable written notice to Agent in accordance with clause (b) below:

​

(i)elect, as of any Business Day, to convert any Revolving Loans (or any part thereof in an aggregate amount not less than $100,000 or a higher integral multiple of $100,000) into Revolving Loans of the other type; or

​

(ii)elect, as of the last day of the applicable Term SOFR Interest Period, to continue any SOFR Loans having Term SOFR Interest Periods expiring on such day (or any part thereof in an aggregate amount not less than $500,000 or a higher integral multiple of $100,000) for a new Term SOFR Interest Period;

​

(b) The Company shall give written notice (each such written notice, a “Notice of Conversion/Continuation”) substantially in the form of Exhibit E or telephonic notice (followed immediately by a Notice of Conversion/Continuation) to Agent of each proposed conversion or continuation not later than (i) in the case of conversion into Base Rate Loans, 11:00 A.M., Minneapolis time, on the proposed date of such conversion and (ii) in the case of conversion into or continuation of SOFR Loans, 11:00 A.M., Minneapolis time, at least three Business Days prior to the proposed date of such conversion or continuation, specifying in each case:

​

(i)the proposed date of conversion or continuation;

(ii)the aggregate amount of Revolving Loans to be converted or continued;

(iii)the type of Revolving Loans resulting from the proposed conversion or continuation; and

(iv)in the case of conversion into, or continuation of, SOFR Loans, the duration of the requested Term SOFR Interest Period therefor.

(c)If upon the expiration of any Term SOFR Interest Period applicable to SOFR Loans, the Company has failed to select timely a new Term SOFR Interest Period to be applicable to such SOFR Loans, the Company shall be deemed to have elected to convert such SOFR Loans into Base Rate Loans effective on the last day if such Term SOFR Interest Period.  

​

(d)Any conversion of a SOFR Loan on a day other than the last date of a Term SOFR Interest Period therefor shall be subject to Section 8.4.

​

(e)Following receipt of a Notice of Conversion/Continuation, Agent shall promptly notify each Lender of such notice, and if no timely Notice of Conversion/Continuation is provided by the Company, Agent shall notify each Lender of the details of any automatic conversion to base Rate Loans described in Section 2.2.3(c).  All conversions and continuation of Loans must be made uniformly and ratably among the Lenders.

​

2.2.4Delayed Draw Term Loan Procedures.  

(a)The Company shall give a Notice of Borrowing or telephonic notice (followed immediately by a Notice of Borrowing) to Agent of each proposed borrowing of a Delayed Draw Term Loan not later than 11:00 A.M., Minneapolis time, at least five Business Days prior to the proposed date of such borrowing.  Each such notice shall be effective upon receipt by Agent, shall be irrevocable (subject to Section 2.2.4(c)), and shall specify the date and amount and type of borrowing.  Each Delayed Draw Term Loan shall be in an aggregate amount of at least $3,000,000 or a higher integral multiple of $1,000,000.  

(b)Following receipt of a Notice of Borrowing relating to a Delayed Draw Term Loan, Agent shall promptly notify each Lender of the amount of its share of the applicable Delayed Draw Term Loan.  Each Lender shall make the amount of its Delayed Draw Term Loan available to Agent in immediately available funds at Administrative Agent’s Office not later than 1:00 p.m. on the Business Day specified in the applicable Notice of Borrowing.  Upon satisfaction of the applicable conditions set forth in Section 12 and Section 2.2.4(d), Agent shall make all funds so received available to the Company in like funds as received by Agent either by (i) crediting the account of Company on the books of CIBC with the amount of such funds or (ii) wire transfer of such funds, in each case in accordance with instructions provided to (and reasonably acceptable to) Agent by the Company.

(c)Following receipt of a Notice of Borrowing relating to a Delayed Draw Term Loan, Agent, in consultation with the Lenders, shall provide to the Company with the interest rate that will be applicable to the requested Delayed Draw Term Loan (the “Delayed Draw Term Loan Interest Rate”). If the Company does not object to the Delayed

Draw Term Loan Interest Rate in a written objection notice delivered to the Agent by 3:00 P.M. Minneapolis time on the Business Day following its receipt from the Agent of the Delayed Draw Term Loan Interest Rate, it shall be deemed to have accepted the Delayed Draw Term Loan Interest Rate. If the Company objects to the Delayed Draw Term Loan Interest pursuant to the immediately preceding sentence, it shall be deemed to have revoked the Notice of Borrowing relating to such Delayed Draw Term Loan, and absent further agreement between the Company and the Agent, the Lenders shall have no obligation to fund the Delayed Draw Term Loan.

​

(d)As a condition to the funding of any Delayed Draw Term Loan, the Loan Parties shall deliver to the Agent a signed confirmation of acceptance (a “DDTL Confirmation of Acceptance”) with respect to the applicable Delayed Draw Term Loan and the applicable Delayed Draw Term Loan Interest Rate, which shall be substantially in the form attached to the Tenth Amendment as Exhibit F.

​

(e)Notwithstanding anything to the contrary contained in this Section 2.2.4, the Company agrees to borrow and the Lenders agree to make a Delayed Draw Term Loan to the Company in an amount equal to $15,000,000 on the Tenth Amendment Effective Date, as specified in the DDTL Confirmation of Acceptance delivered on the Tenth Amendment Effective Date. The Agent and the Lenders hereby waive any requirement for the Company to deliver a Notice of Borrowing in connection with the Delayed Draw Term Loan described in this paragraph (e).

​

2.4Certain Conditions. Notwithstanding any other provision of this Agreement, neither Agent nor any Lender or the L/C Issuer shall have an obligation to make any Loan, or to permit the continuation of or any conversion into any SOFR Loan, or to issue any Letter of Credit, if an Event of Default or Unmatured Event of Default exists.

(a)all or any part of the Defaulting Lender’s obligation to participate in L/C Obligations shall be reallocated among the non-Defaulting Lenders in accordance with their respective Pro Rata Shares as determined pursuant to the definition of “Pro Rata Share” but only to the extent (x) the sum of all non-Defaulting Lenders’ Outstandings plus such Lender’s Delayed Draw Term Loans plus such Defaulting Lender’s obligation to participate in L/C Obligations does not exceed the total of all non-Defaulting Lenders’ Commitments and (y) the conditions set forth in Section 12.2 are satisfied at such time; and

3.1Notes. The Revolving Loans made by each Lender shall be evidenced by a Note, with appropriate insertions, payable to the order of each Lender in a face principal amount equal to its Revolving Commitment. The Delayed Draw Term Loans made by each Lender shall be evidenced by a Note, with appropriate insertions, payable to the order of each Lender in a face principal amount equal to its Delayed Draw Term Loan Commitment.

​

SECTION 4INTEREST RATES

4.1Interest Rates.  The Loan Parties, jointly and severally, promise to pay interest on the unpaid principal amount of each Loan for the period commencing on the date of such Loan until such Loan is paid in full as follows:

provided that at any time an Event of Default exists, unless the Required Lenders otherwise consent, the interest rate applicable to each Loan shall be the Default Rate, provided further that such increase may thereafter be rescinded by the Required Lenders.  

Notwithstanding the foregoing, upon the occurrence of an Event of Default under Section 13.1.1 or 13.1.4, such increase shall occur automatically.

​

4.2Interest Payment Dates.  Accrued interest on each Base Rate Loan shall be payable in arrears on the first day of each calendar month and at maturity.  Accrued interest on each SOFR Loan having a Term SOFR Interest Period of three months or shorter shall be payable on the last day of such Term SOFR Interest Period relating to such Loan, upon a prepayment of such Loan, and at maturity.  Accrued interest on each SOFR Loan having a Term SOFR Interest Period of longer than three months shall be payable on the respective dates that fall every three months after the beginning of such Term SOFR Interest Period relating to such Loan, upon a prepayment of such Loan, and at maturity.  Accrued interest on each Delayed Draw Term Loan shall be payable in arrears on the first day of each calendar month and at maturity.   After maturity, and at any time an Event of Default exists, accrued interest on all Loans shall be payable on demand. For purposes hereof, maturity shall mean the Delayed Draw Term Loan Maturity Date or the Termination Date, as applicable.

4.3Setting and Notice of SOFR Rates.  The applicable SOFR Rate for each Term SOFR Interest Period shall be determined by Agent, and notice thereof shall be given by Agent promptly to the Company and the Lenders.  Each determination of the applicable SOFR Rate by Agent shall be conclusive and binding upon the parties hereto, in the absence of demonstrable error.  Agent shall, upon written request of the Company, deliver to the Company a statement showing the computations used by Agent in determining any applicable SOFR Rate hereunder.

4.4Computation of Interest.  Interest on any applicable portion of the outstanding principal balance of the Loan shall be calculated by multiplying (i) the actual number of days elapsed in the period for which the calculation is being made by (ii) a daily rate based on a three hundred sixty (360) day year (or a 365/366 day year in the case of a Base Rate Loan) by (iii) such portion of the outstanding principal balance of the Loan. Such interest shall be calculated on a daily basis based upon the outstanding principal amount of such Loan as of the applicable date of determination.  

​

4.5Benchmark Replacement Setting; Benchmark Conforming Changes. Upon the occurrence of a Benchmark Transition Event, Agent and the Company may amend this Agreement to replace the then-current Benchmark with a Benchmark Replacement. Any such amendment will become effective at 5:00 p.m. (New York City time) on the fifth (5th) Business Day after Agent has posted such proposed amendment to all Lenders and the Company so long as Agent has not received, by such time, written notice of objection thereto from Lenders comprising the Required Lenders.  No such replacement will occur prior to the applicable Benchmark Transition Start Date. In connection with Term SOFR or the implementation of a Benchmark Replacement, Agent will have the right to make Benchmark Conforming Changes from time to time and,

notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document. Agent will promptly notify the Company and the Lenders of the implementation of any Benchmark Replacement and the effectiveness of any Benchmark Conforming Changes.  Agent will promptly notify the Company of the removal or reinstatement of any tenor of a Benchmark pursuant to this Section 4.5.  Any determination, decision or election that may be made by Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section 4.5 will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 4.5. Notwithstanding anything to the contrary herein or in any other Loan Document (other than any Hedging Agreement), at any time, (a) if the then-current Benchmark is a term rate (including Term SOFR) and either (i) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by Agent in its reasonable discretion or (ii) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is or will be no longer representative, then Agent may modify the definition of “Term SOFR Interest Period” (or any similar or analogous definition) for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor, and (b) if a tenor that was removed pursuant to clause (a) above either (i) is subsequently displayed on a screen or information service for a Benchmark or (ii) is not, or is no longer, subject to an announcement that it is or will no longer be representative for a Benchmark, then Agent may modify the definition of “Term SOFR Interest Period” (or any similar or analogous definition) for all Benchmark settings at or after such time to reinstate such previously removed tenor. Upon the Company’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Company may revoke any pending request for a SOFR Borrowing of, conversion to or continuation of SOFR Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Company will be deemed to have converted any such request into a request for a borrowing of or conversion to Base Rate Loans, and any outstanding affected SOFR Loans will be deemed to have been converted into Base Rate Loans at the end of the applicable Term SOFR Interest Period.

​

The following terms have the following meanings:

“Available Tenor” means, as of any date of determination with respect to the then-current Benchmark, (a) if such Benchmark is a term rate, any tenor for such Benchmark (or component thereof) that is or may be used for determining the length of an interest period pursuant to this Agreement or (b) otherwise, any payment period for interest calculated with reference to such Benchmark (or component thereof) that is or may be used for determining any frequency of making payments of interest calculated with reference to such Benchmark, in each case, as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of “Term SOFR Interest Period” or similar term pursuant to Section 4.5.

“Benchmark” means, initially, Term SOFR; provided that if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to Term SOFR or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 4.5.

“Benchmark Conforming Changes” means, with respect to Term SOFR or any Benchmark Replacement, any technical, administrative or operational changes (including (a) changes to the definition of “Business Day” or other definitions, (b) the addition of concepts such as “interest period”, (c) changes to timing and/or frequency of determining rates, making interest payments, giving borrowing requests, prepayment, conversion or continuation notices, or length of lookback periods, (d) the applicability of compensation for losses, and (e) other technical, administrative or operational matters) that Agent decides may be appropriate to reflect the adoption and implementation of Term SOFR or such Benchmark Replacement and to permit the administration thereof by Agent in a manner substantially consistent with market practice (or, if Agent decides that adoption of any portion of such market practice is not administratively feasible or determines that no such market practice exists, in such other manner as Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).

“Benchmark Replacement” means, with respect to any Benchmark Transition Event, the sum of: (a) the alternate benchmark rate that has been selected by Agent giving due consideration to (i) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement to the then-current Benchmark for Dollar-denominated syndicated credit facilities and (b) the related Benchmark Replacement Adjustment; provided that, if such Benchmark Replacement as so determined would be less than the Floor, such Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Loan Documents.

“Benchmark Replacement Adjustment” means, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement for any applicable Available Tenor, the spread adjustment, or method for calculating or determining such spread adjustment (which may be a positive or negative value or zero) that has been selected by Agent giving due consideration to any selection or recommendation by the Relevant Governmental Body, or any evolving or then-prevailing market convention at such time, for determining a spread adjustment, or method for calculating or determining such spread adjustment, for such type of replacement for U.S. dollar-denominated syndicated credit facilities.

“Benchmark Replacement Date” means the earlier to occur of the following events with respect to the then-current Benchmark: (a) in the case of clause (a) or (b) of the definition of “Benchmark Transition Event”, the later of (i) the date of the public statement or publication of information referenced therein and (ii) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof)

permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof); or (b) in the case of clause (c) of the definition of “Benchmark Transition Event”, the first date on which such Benchmark (or the published component used in the calculation thereof) has been determined and announced by the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be no longer representative; provided, that such non-representativeness will be determined by reference to the most recent statement or publication referenced in such clause (c) even if any Available Tenor of such Benchmark (or such component thereof) continues to be provided on such date.  For the avoidance of doubt, the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (a) or (b) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).

“Benchmark Transition Event” means the occurrence of one or more of the following events with respect to the then-current Benchmark: (a) a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); (b) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the Federal Reserve Board, the Federal Reserve Bank of New York, an insolvency official or resolution authority with jurisdiction over the administrator for such Benchmark (or such component), or a court or an entity with similar insolvency or resolution authority, which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); or (c) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are no longer, or as of a specified future date will no longer be, representative. For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).

“Benchmark Transition Start Date” means, in the case of a Benchmark Transition Event, the earlier of (a) the applicable Benchmark Replacement Date and (b) if such Benchmark Transition Event is a public statement or publication of information of a prospective event, the 90th day prior to the expected date of such event as of such public statement or publication of information (or if the expected date of such prospective event

is fewer than 90 days after such statement or publication, the date of such statement or publication).

“Benchmark Unavailability Period” means the period (if any) (a) beginning at the time that a Benchmark Replacement Date pursuant to clauses (a) or (b) of that definition has occurred if, at such time, no Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 4.5 and (b) ending at the time that a Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 4.5.

“Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.

5.2Other Fees.

SECTION 6REDUCTION OR TERMINATION OF THE REVOLVING COMMITMENT; PREPAYMENTS.

6.1Prepayments.

6.1.1Voluntary Prepayments.  The Loan Parties may from time to time prepay the Loans in whole or in part; provided that the Company shall give Agent and each Lender notice thereof not later than 11:00 A.M., Minneapolis time, on the day of such prepayment (which shall be a Business Day), specifying the Loans to be prepaid and the date and amount of prepayment.

6.1.2Mandatory Prepayments.  If on any day the Outstandings exceed the Aggregate Revolving Commitments, the Loan Parties shall immediately prepay the Revolving Loans and/or Cash Collateralize the outstanding Letters of Credit, or do a combination of the foregoing, in an amount sufficient to eliminate such excess.  Subject to the Prudential Intercreditor Agreement, the Loan Parties shall make an immediate prepayment of the Loans upon the receipt by any Loan Party of any Net Cash Proceeds from any Asset Disposition, in an amount equal to 100% of such Net Cash Proceeds; provided that no prepayment shall be required under this sentence with respect to the first $4,000,000 of Net Cash Proceeds received by the Loan Parties in any Fiscal Year; and provided further that such prepayment shall be applied as directed by the Required Lenders.

6.1.3Manner of Prepayments.  Each voluntary partial prepayment shall be in a principal amount of $25,000 or a higher integral multiple of $5,000.  Any prepayment of a SOFR Loan on a day other than the last day of ana Term SOFR Interest Period therefor shall include interest on the principal amount being repaid and shall be subject to Section 8.4. Except as otherwise provided by this Agreement, all principal payments in respect of the Revolving Loans shall be applied first to repay outstanding Base Rate Loans, and then to repay outstanding SOFR Loans in direct order of Term SOFR Interest Period maturities.

6.2Repayments and Terminations.  The Revolving Loans shall be irrevocably paid in full in cash, and the Commitment shall terminate, on the Termination Date. The Delayed Draw Term Loans shall be irrevocably paid in full in cash on the Delayed Draw Term Loan Maturity Date.

6.3Reduction of Revolving Commitments.  The Loan Parties may, at any time, upon not less than 30 days’ prior written notice from the Company to Agent and each Lender, reduce the amount of the Revolving Commitments, with any such reduction in a minimum amount of $1,000,000, or, if more, in an integral multiple of $500,000 and on a pro rata basis for each Commitment; provided, however, that the Loan Parties may not at any time reduce the amount of Revolving Commitments below the Outstandings. Upon any reduction as provided herein, the Administrative Agent shall deliver an updated Schedule 2.1 to the Loan Parties and the Lenders.

10.1.8Reserved.

10.1.12Prudential Notices.  Promptly following receipt, copies of any notices (including notices of default or acceleration) received from or on behalf of Prudential (excluding notices regarding interest rate quotes and other administrative matters not relating to an issuance of Prudential Notes).

10.1.13Notice of Additional Debt.  Prior to or concurrently with the incurrence of any Additional Prudential Debt, (i) true, correct, and complete copies all documents entered into by any Loan Party in connection with such Debt and (ii) a certificate of a Senior Officer of the Loan Parties certifying that: (A) no Unmatured Event of Default or Event of Default exists at the time of funding or effectiveness of such Debt, (B) the Company and the Subsidiaries are in pro forma compliance with the financial covenants contained in Sections 11.15, 11.16, and 11.17 at the time of funding or effectiveness of such Additional Prudential Debt, and (C) at the time of funding or effectiveness of such Debt, all representations and warranties by the Loan Parties contained herein or in any other Loan Document are true and correct in all material respects (without duplication of any materiality qualifier contained therein) as of the date of incurrence of such Debt and after giving pro forma effect thereto, except to the extent that such

representation or warranty expressly relates to an earlier date (in which event such representations and warranties shall be true and correct in all material respects (without duplication of any materiality qualifier contained therein) as of such earlier date).

(j)(i) Debt evidenced by Prudential Notes existing prior to the Tenth Amendment Effective Date and owed to Prudential but only so long as the Prudential Intercreditor Agreement is in full force and effect and (ii) the Additional Prudential Debt but only if such Additional Prudential Debt is subject to the Prudential Intercreditor Agreement and the Prudential Intercreditor Agreement is in full force and effect; so long as the total amount of Debt at any one time outstanding and permitted under this Section 11.1(j) does not exceed $100,000,000.  

(h)Liens securing the Prudential Notes but only so long as the Prudential Intercreditor Agreement is in full force and effect.

(C)the aggregate consideration to be paid by the Loan Parties (including any Debt assumed or issued in connection therewith, the amount thereof to be calculated in accordance with GAAP) in connection with such Acquisition (or any series of related Acquisitions) is less than $20,000,000 individually and the aggregate consideration for all Acquisitions by the Loan Parties since the Tenth Amendment Effective Date does not exceed $20,000,000;

11.9Inconsistent Agreements. Not, and not permit any other Loan Party to, enter into any agreement containing any provision which would (a) be violated or breached by any borrowing by a Loan Party hereunder or by the performance by any Loan Party of any of its Obligations hereunder or under any other Loan Document, (b) prohibit any Loan Party from granting to Agent, for the ratable benefit of Agent and the Lenders, a Lien on any of its assets or (c) create or permit to exist or become effective any encumbrance or restriction on the ability of any Subsidiary to (i) pay dividends or make other distributions to the Company or any other Subsidiary, or pay any Debt owed to the Company or any other Subsidiary, (ii) make loans or advances to any Loan Party or (iii) transfer any of its assets or properties to any Loan Party, other than (A) customary restrictions and conditions contained in agreements relating to the sale of all or a substantial

part of the assets of any Subsidiary pending such sale, provided that such restrictions and conditions apply only to the Subsidiary to be sold and such sale is permitted hereunder, (B) restrictions or conditions imposed by any agreement relating to purchase money Debt, Capital Leases and other secured Debt permitted by this Agreement if such restrictions or conditions apply only to the property or assets securing such Debt, (C) restriction or conditions imposed by the agreements and documents governing or evidencing any Prudential Notes so long as no more restrictive than the equivalent restriction or condition contained in this Agreement, and (D) customary provisions in leases and other contracts restricting the assignment thereof.

13.1.5Non-Compliance with Loan Documents.  (a) Failure by any Loan Party to comply with or to perform any covenant set forth in Sections 10.1.5, 10.3(b), 10.5, 10.9, or 10.1.13 or Section 11; or (b) failure by any Loan Party to comply with or to perform any other provision of this Agreement or any other Loan Document (and not constituting an Event of Default under any other provision of this Section 13) and continuance of such failure described in this clause (b) for 30 days.

16.3Notices.  Except as otherwise provided in Sections 2.2.2, 2.2.3 and 2.2.4, all notices hereunder shall be in writing (including facsimile transmission) and shall be sent to the applicable party at its address shown on the signature page or at such other address as such party may, by written notice received by the other parties, have designated as its address for such purpose.  Notices sent by facsimile transmission shall be deemed to have been given when sent; notices sent by mail shall be deemed to have been given three Business Days after the date when sent by registered or certified mail, postage prepaid; and notices sent by hand delivery or overnight courier service shall be deemed to have been given when received.  For purposes of Sections 2.2.2, 2.2.3 and 2.2.4, Agent shall be entitled to rely on telephonic instructions from any person that Agent in good faith believes is an authorized officer or employee of the Company, and the Company shall hold Agent harmless from any loss, cost or expense resulting from any such reliance.

For the avoidance of doubt, the amendments and consent contemplated by this Amendment shall not be effective until each of the foregoing conditions have been satisfied or waived in writing by the Lender and the Administrative Agent.  

​

(a)The execution, delivery and performance by the Loan Parties of this Amendment and any other documents required to be executed and/or delivered by the Loan Parties by the terms of this Amendment have been duly authorized by all necessary corporate action, do not require any approval or consent of, or any registration, qualification or filing with, any government agency or authority or any approval or consent of any other person, do not and will not conflict with, result in any violation of or constitute any default under, any provision of the Loan Parties’ organizational documents, any agreement binding on or applicable to the Loan Parties or any of their property, or any law or governmental regulation or court decree or order, binding upon or applicable to the Loan Parties or of any of their property and will not result in the creation or imposition of any Lien in or on any of their property pursuant to the provisions of any agreement applicable to the Loan Parties or any of their property, other than Liens in favor of the Administrative Agent.

​

(b)Both before and after giving effect to this Amendment, the representations and warranties contained in the Credit Agreement are true and correct as of the date hereof and will be true and correct as of the effectiveness of this Amendment, as though made on each such date, except to the extent that such representations and warranties relate solely to an earlier date.

​

(c)There does not exist any Unmatured Event of Default or Event of Default.

​

​

[The signature pages follow.]

THE PARTIES HAVE EXECUTED this Amendment No. 10 to Credit Agreement in the manner appropriate to each as of the date and year first above written.

​

LOAN PARTIES:

WINMARK CORPORATION

​

​

​

​

​

WIRTH BUSINESS CREDIT, INC.

​

​

​

​

​

​

​

WINMARK CAPITAL CORPORATION

​

​

​

​

​

GROW BIZ GAMES, INC.

​

​

​

​

(Signatures continue on next page.)

​

ADMINISTRATIVE AGENT

AND A LENDER:

CIBC BANK USA

​

​

​

​

​

​

​

EXHIBIT A

​

(see attached)

​

​

​

​

EXHIBIT B

​

(see attached)

​

EXHIBIT D

​

FORM OF NOTICE OF BORROWING

​

To:CIBC BANK USA (the “Administrative Agent”)

Please refer to the Credit Agreement dated as of July 13, 2010 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”) among Winmark Corporation (the “Company”) and its subsidiaries (together with the Company, the “Loan Parties”), each lender from time to time party hereto (collectively, the “Lenders” and individually, a “Lender”), CIBC BANK USA (“CIBC”), as a Lender and as Administrative Agent for the Lenders.  Capitalized terms used but not otherwise defined herein shall have the same meanings herein as in the Credit Agreement.  

The undersigned hereby gives irrevocable notice, pursuant to [Section 2.2.2] [Section 2.2.4] of the Credit Agreement, of a request hereby for a borrowing as follows:

(i)The proposed borrowing is a [Revolving Loan] [Delayed Draw Term Loan].

​

(ii)The requested borrowing date for the proposed borrowing (which is a Business Day) is

​ ​​ ​​ ​, ​ ​.

​

(iii)The aggregate amount of the proposed borrowing is $​ ​​ ​​ ​​ ​.  

(iv)With respect to a borrowing of a Revolving Loan:

(A)The type of Revolving Loans comprising the proposed borrowing are [Base Rate] [SOFR] Loans.  

(B)The duration of the Term SOFR Interest Period for each SOFR Loan made as part of the proposed borrowing, if applicable, is 1 months.  

The undersigned hereby certifies that on the date hereof and on the date of borrowing set forth above, and immediately after giving effect to the borrowing requested hereby:  (i) there exists and there shall exist no Unmatured Event of Default or Event of Default under the Credit Agreement; (ii) each of the representations and warranties contained in the Credit Agreement and the other Loan Documents is true and correct as of the date hereof, except to the extent that such representation or warranty expressly relates to another date and except for changes therein expressly permitted or expressly contemplated by the Credit Agreement; (iii) no more than three (3) different Group of SOFR Loans are/will be outstanding; and (iv) conditions contained in Section 12.2 of the Credit Agreement have been satisfied on and as of the date hereof, and will continue to be satisfied on and as of the date of the borrowing requested hereby, before and after giving effect thereto.

The Company has caused this Notice of Borrowing to be executed and delivered by its officer thereunto duly authorized on ​ ​​ ​​ ​, ​ ​.  

WINMARK CORPORATION

​

​

By: ​ ​​ ​​ ​​ ​​ ​

Name: ​ ​​ ​​ ​​ ​​ ​

Title: ​ ​​ ​​ ​​ ​​ ​

​

​

EXHIBIT C

​

(see attached)

​

EXHIBIT E

​

FORM OF NOTICE OF CONVERSION/CONTINUATION

​

To:CIBC BANK USA (the “Administrative Agent”)

​

Please refer to the Credit Agreement dated as of July 13, 2010 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”) among Winmark Corporation (the “Company”) and its subsidiaries (together with the Company, the “Loan Parties”), each lender from time to time party hereto (collectively, the “Lenders” and individually, a “Lender”), CIBC BANK USA (“CIBC”), as a Lender and as Administrative Agent for the Lenders.  Capitalized terms used but not otherwise defined herein shall have the same meanings herein as in the Credit Agreement.

The undersigned hereby gives irrevocable notice, pursuant to Section 2.2.3 of the Credit Agreement, of its request to:

(a)on [date] convert $[​ ​​ ​​ ​] of the aggregate outstanding principal amount of the  [​ ​​ ​​ ​] Loan, into a(n) [​ ​​ ​​ ​] Loan [and, in the case of a SOFR Loan, having a Term SOFR Interest Period of one month];

[(b)on [date] continue $[​ ​​ ​​ ​] of the aggregate outstanding principal amount of the SOFR Loan, as a SOFR Loan having a Term SOFR Interest Period of one month.]

The undersigned hereby represents and warrants that all of the conditions contained in Section 12.2 of the Credit Agreement have been satisfied on and as of the date hereof, and will continue to be satisfied on and as of the date of the conversion/continuation requested hereby, before and after giving effect thereto.  The undersigned also represents and warrants that, before and after giving effect the conversion/continuation requested hereby, no more than three different Groups of SOFR Loans are/will be outstanding.

The Company has caused this Notice of Conversion/Continuation to be executed and delivered by its officer thereunto duly authorized on ​ ​​ ​, ​ ​.  

WINMARK CORPORATION

​

​

By:​ ​​ ​​ ​​ ​

Name:​ ​​ ​​ ​​ ​

Title:  ​ ​​ ​​ ​​ ​

​

​

​

​

​

EXHIBIT D

​

(see attached)

​

​

DELAYED DRAW TERM LOAN NOTE

​

​

$30,000,000.00‌April 12, 2022

Minneapolis, Minnesota

​

The undersigned, jointly and severally, for value received, promise to pay to the order of CIBC BANK USA, an Illinois bank and trust company (the “Lender”), at the Administrative Agent’s Office (as defined in the Credit Agreement referred to below), the principal sum of Thirty Million Dollars ($30,000,000.000) or the aggregate unpaid amount of all Delayed Draw Term Loans made to the undersigned by the Lender pursuant to the Credit Agreement (as shown on the schedule attached hereto (and any continuation thereof) or in the records of the Lender), such principal amount to be payable on the dates set forth in the Credit Agreement.

​

The undersigned, jointly and severally, further promise to pay interest on the unpaid principal amount of each Delayed Draw Term Loan from the date of such Delayed Draw Term Loan until such Delayed Draw Term Loan is paid in full, payable at the rate(s) and at the time(s) set forth in the Credit Agreement.  Payments of both principal and interest are to be made in lawful money of the United States of America.

​

This Note evidences indebtedness incurred under, and is subject to the terms and provisions of, the Credit Agreement, dated as of July 13, 2010 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”; terms not otherwise defined herein are used herein as defined in the Credit Agreement), among the undersigned, CIBC BANK USA, as Administrative Agent for the lenders, certain other lenders party thereto and the Lender, to which Credit Agreement reference is hereby made for a statement of the terms and provisions under which this Note may or must be paid prior to its due date or its due date accelerated.

​

The undersigned, jointly and severally, agree to pay all costs of collection, including attorneys’ fees, in the event this Note is not paid when due.  This Note is being delivered in, and shall be governed by, the laws of the State of Minnesota.  Presentment or other demand for payment, notice of dishonor and protest are expressly waived.

​

[The signature page follows.]

​

​

​

[Signature page to $30,000,000 Delayed Draw Term Loan Note payable

​

​

EXHIBIT E

​

(see attached)

​

​

CONFIRMATION OF ACCEPTANCE

​

Please refer to the Credit Agreement dated as of July 13, 2010 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”) among Winmark Corporation (the “Company”) and its subsidiaries (together with the Company, the “Loan Parties”), each lender from time to time party hereto (collectively, the “Lenders” and individually, a “Lender”), CIBC BANK USA (“CIBC”), as a Lender and as Administrative Agent for the Lenders (the “Agent”).  Capitalized terms used but not otherwise defined herein shall have the same meanings herein as in the Credit Agreement.  

​

Pursuant to the certain Notice of Borrowing, dated __________, __, 20__, the Company has requested to borrow a Delayed Draw Term Loan on the terms and conditions set forth in the Credit Agreement.

​

The Agent, on behalf of the Lenders, hereby confirms the following with respect to the requested Delayed Draw Term Loan, effective as of the date this Confirmation of Acceptance is countersigned by the Company:

​

(i)Date of borrowing: _________________________________.

​

(ii)Principal amount of Delayed Draw Term Loan: $_________________________.

​

​

Dated as of __________, __, 202___

CIBC BANK USA, as Agent

​

By: ________________________

Name: ______________________

Title: _______________________

​

​

The Company hereby acknowledges receipt of this Confirmation of Acceptance and agrees to the terms of the Delayed Draw Term Loan set forth herein, including, without limitation, the Delayed Draw Term Loan Interest Rate as set forth herein.

​

The Company has caused this Confirmation of Acceptance to be executed and delivered by its duly authorized officer on __________, __, 20__.

WINMARK CORPORATION

​

​

By: ​ ​​ ​​ ​​ ​​ ​

Name: ​ ​​ ​​ ​​ ​​ ​

Title: ​ ​​ ​​ ​​ ​​ ​

​

​

‌​

​

​ ​​

​

​

WINMARK CORPORATION
WIRTH BUSINESS CREDIT, INC.
WINMARK CAPITAL CORPORATION
GROW BIZ GAMES, INC.



Private Shelf Facility

_________________

​

PRIVATE SHELF AGREEMENT

_________________

​

​

​

Dated as of April 12, 2022

​

​ ​​

​

​

​

​

Table of Contents

(Not Part of Agreement)

​

Page

​

Table of Contents

(continued)

Page

​

Table of Contents

(continued)

Page

​

Table of Contents

(continued)

Page

​

Table of Contents

(continued)

Page

​

Table of Contents

(continued)

Page

​

​

​

​

​

​

SCHEDULE 6H--AFFILIATED TRANSACTION

SCHEDULE 8A(1)--SUBSIDIARIES

SCHEDULE 8G--LIST OF AGREEMENTS RESTRICTING DEBT

SCHEDULE 8K--FILINGS AND RECORDINGS

SCHEDULE 8Q--INFORMATION REGARDING THE COMPANY AND

SUBSIDIARIES

​

EXHIBIT A--FORM OF SHELF NOTE

EXHIBIT B--[RESERVED]  

EXHIBIT C--FORM OF REQUEST FOR PURCHASE

EXHIBIT D--FORM OF CONFIRMATION OF ACCEPTANCE

EXHIBIT E--FORM OF OPINION OF ISSUERS’ COUNSEL

​

​

​

​

WINMARK CORPORATION
WIRTH BUSINESS CREDIT, INC.
WINMARK CAPITAL CORPORATION
GROW BIZ GAMES, INC.

c/o Winmark Corporation
605 Highway 169 North, Suite 400
Minneapolis, MN 55441

​

As of April 12, 2022

​

​

PGIM, Inc. (“Prudential”)
Each Prudential Affiliate (as hereinafter defined)
which becomes bound by certain provisions
of this Agreement as hereinafter provided
(collectively, the “Purchasers”)

c/o Prudential Private Capital
60 S. 6th Street, Suite 3700

Minneapolis, Minnesota 55402-4422

Ladies and Gentlemen:

The undersigned, Winmark Corporation, a Minnesota corporation (herein called the “Company”), Wirth Business Credit, Inc., a Minnesota corporation (herein called “Wirth”), Winmark Capital Corporation, a Minnesota corporation (herein called “Winmark Capital”), and Grow Biz Games, Inc., a Minnesota corporation (herein called “Grow Biz”; the Company, Wirth, Winmark Capital, Grow Biz and any other Person who joins this Agreement as an Issuer pursuant to paragraph 5J are herein sometimes collectively called the “Issuers”), hereby agree with you as set forth below. Reference is made to paragraph 10 hereof for definitions of capitalized terms used herein and not otherwise defined.

​

pursuant to any such provision. Notes which have (a) the same final maturity, (b) the same principal prepayment dates, (c) the same principal prepayment amounts (as a percentage of the original principal amount of each Note), (d) the same interest rate, (e) the same interest payment periods and (f) the same date of issuance (which, in the case of a Note issued in exchange for another Note, shall be deemed for these purposes the date on which such Note’s ultimate predecessor Note was issued), are herein called a “Series” of Notes.

NOTWITHSTANDING THE WILLINGNESS OF PRUDENTIAL AFFILIATES TO CONSIDER PURCHASES OF SHELF NOTES, THIS AGREEMENT IS ENTERED INTO ON THE EXPRESS UNDERSTANDING THAT NEITHER PRUDENTIAL NOR ANY PRUDENTIAL AFFILIATE SHALL BE OBLIGATED TO MAKE OR ACCEPT OFFERS TO PURCHASE SHELF NOTES, OR TO QUOTE RATES, SPREADS OR OTHER TERMS WITH RESPECT TO SPECIFIC PURCHASES OF SHELF NOTES, AND THE FACILITY SHALL IN NO WAY BE CONSTRUED AS A COMMITMENT BY PRUDENTIAL OR ANY PRUDENTIAL AFFILIATE.  

​

Day for such purchase and sale, (vi) certify that the representations and warranties contained in paragraph 8 are true on and as of the date of such Request for Purchase and that there exists on the date of such Request for Purchase no Event of Default or Default and (vii) be substantially in the form of Exhibit C attached hereto.  Each Request for Purchase shall be in writing and shall be deemed made when received by Prudential.  

​

expire, and no purchase or sale of Shelf Notes hereunder shall be made based on such expired interest rate quotes.  If the Issuers thereafter notify Prudential of the Acceptance of any such interest rate quotes, such Acceptance shall be ineffective for all purposes of this Agreement, and Prudential shall promptly notify the Issuers that the provisions of this paragraph 2A(6) are applicable with respect to such Acceptance.

​

(BEY - MMY) X DTS/360 X PA

​

where “BEY” means Bond Equivalent Yield, i.e., the bond equivalent yield per annum of such Accepted Note; “MMY” means Money Market Yield, i.e., the yield per annum on a commercial paper investment of the highest quality selected by Prudential on the date Prudential receives notice of the delay in the closing for such Accepted Note having a maturity date or dates the same as, or closest to, the Rescheduled Closing Day or Rescheduled Closing Days (a new alternative investment being selected by Prudential each time such closing is delayed); “DTS” means Days to Settlement, i.e., the number of actual days elapsed from and including the original Closing Day with respect to such Accepted Note (in the case of the first such payment with respect to such Accepted Note) or from and including the date of the next preceding payment (in the case of any subsequent delayed delivery fee payment with respect to such Accepted Note) to but excluding the date of such payment; and “PA” means Principal Amount, i.e., the principal amount of the Accepted Note for which such calculation is being made.  In no case shall the Delayed Delivery Fee be less than zero.  Nothing contained herein shall obligate any Purchaser to purchase any Accepted Note on any day other than the Closing Day for such Accepted Note, as the same may be rescheduled from time to time in compliance with paragraph 2A(7).

​

PI X PA

​

where “PI” means Price Increase, i.e., the quotient (expressed in decimals) obtained by dividing (a) the excess of the ask price (as determined by Prudential) of the Hedge Treasury Note(s) on the Cancellation Date over the bid price (as determined by Prudential) of the Hedge Treasury Notes(s) on the Acceptance Day for such Accepted Note by (b) such bid price; and “PA” has the meaning ascribed to it in paragraph 2A(8)(ii).  The foregoing bid and ask prices shall be as reported by Telerate Systems, Inc. (or, if such data for any reason ceases to be available through Telerate Systems, Inc., any publicly available source of similar market data).  Each price shall be rounded to the second decimal place.  In no case shall the Cancellation Fee be less than zero.

​

​

​

the initial revolving loan thereunder, certified by an Officer’s Certificate, dated the Effective Date, as correct and complete.  

​

​

limitation, any borrowings under the Credit Agreement); there shall exist on the date of closing no Event of Default or Default, both before and immediately after giving effect to the issuance of the Notes on the date of closing and the consummation of any other transactions contemplated hereby and by the other Transaction Documents (including, without limitation, any borrowings under the Credit Agreement); each Issuer shall have performed all agreements and satisfied all conditions required under this Agreement or the other Transaction Documents to be performed or satisfied on or before the date of closing; and each Issuer shall have delivered to such Purchaser an Officer’s Certificate, dated the date of closing, to each such effect.  

​

​

which it gives written notice of any prepayment pursuant to paragraph 4B, give telephonic notice of the principal amount of the Notes to be prepaid and the prepayment date to each Significant Holder which shall have designated a recipient of such notices in the Purchaser Schedule attached to the applicable Confirmation of Acceptance or by notice in writing to the Company.

​

the required payments of principal thereof (including the required payment of principal due upon the maturity thereof) in the inverse order of their scheduled due dates.  

Nothing in this paragraph 4E shall be deemed to constitute a waiver or modification of any provision of paragraph 6 hereof.

​

​

Together with each delivery of financial statements required by clauses (i) and (iii) above, the Company will deliver to each Significant Holder an Officer’s Certificate (a) demonstrating (with

​

computations in reasonable detail) compliance by the Company and its Subsidiaries with the provisions of paragraph 6A and stating that there exists no Event of Default or Default, or, if any Event of Default or Default exists, specifying the nature and period of existence thereof and what action the Company proposes to take with respect thereto and (b) at any time when the Company is not an SEC reporting company, containing a written statement of the Company’s management setting forth a discussion of the financial condition, changes in financial condition and results of operations of the Company and its Subsidiaries. In the event that the Company or any Subsidiary has made an election to measure any financial liability using fair value (which election is being disregarded for purposes of determining compliance with this Agreement pursuant to paragraph 10C) as to the period covered by any such financial statement, such Officer’s Certificate as to such period shall include a reconciliation from generally accepted accounting principles with respect to such election. Each Issuer also covenants that immediately after the Company or any Subsidiary becomes aware of an Event of Default or Default, it will deliver to each Significant Holder an Officer’s Certificate specifying the nature and period of existence thereof and what action the Company or its Subsidiaries proposes to take with respect thereto.

​

other authorizations from federal, state, foreign, regional, municipal and other local regulatory bodies or administrative agencies or governmental bodies having jurisdiction over such Issuer and its Subsidiaries or any of their respective properties, products or services necessary to the ownership, operation or maintenance of their respective properties or to the conduct of their respective businesses, in each case to the extent necessary to ensure that non­compliance with such laws, ordinances or governmental rules or regulations or failures to obtain or maintain in full force and effect such licenses, certificates, permits, franchises, operating rights and other authorizations could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.

​

​

(i)Maintain, and cause each other member of the Controlled Group to maintain, each Pension Plan in substantial compliance with all applicable requirements of law and regulations.

(ii)Make, and cause each other member of the Controlled Group to make, on a timely basis, all required contributions to any Multiemployer Plan.

(iii)Not, and not permit any other member of the Controlled Group to (a) seek a waiver of the minimum funding standards of ERISA, (b) terminate or withdraw from any Pension Plan or Multiemployer Plan or (c) take any other action with respect to any Pension Plan that would reasonably be expected to entitle the PBGC to terminate, impose liability in respect of, or cause a trustee to be appointed to administer, any Pension Plan, unless the actions or events described in clauses (a), (b) and (c) individually or in the aggregate would not have a Material Adverse Effect.

​

​

​

​

Fiscal Year does not exceed 10% of the net book value of the consolidated assets of the Company and its Subsidiaries as of the last day of the preceding Fiscal Year; (d) the discounting of non-recourse leases in the ordinary course of business; and (e) any Acquisition by the Company or any domestic Wholly-Owned Subsidiary where:

​

​

Subordination Agreements or amend, modify or supplement the Subordination Agreements in any respect, in each case without the prior written consent of the Required Holder(s).

​

​

​

then (a) if such event is an Event of Default specified in clause (i) or (ii) of this paragraph 7A, any holder of any Note (other than any Issuer or any of its Subsidiaries or Affiliates) may at its option, by notice in writing to the Company, declare all of the Notes held by such holder to be, and all of the Notes held by such holder shall thereupon be and become, immediately due and payable at par together with interest accrued thereon and the Yield-Maintenance Amount, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by each Issuer, (b) if such event is an Event of Default specified in clause (viii), (ix) or (x) of this paragraph 7A with respect to any Issuer, all of the Notes at the time outstanding shall automatically become immediately due and payable together with interest accrued thereon and together with the Yield-Maintenance Amount, if any, with respect to each Note, without presentment, demand, protest or notice of any kind, all of which are hereby waived by each Issuer, and (c) if such event is not an Event of Default specified in clause (viii), (ix) or (x) of this paragraph 7A with respect to any

​

Issuer, the Required Holder(s) of the Notes of any Series may at its or their option, by notice in writing to the Company, declare all of the Notes of such Series to be, and all of the Notes of such Series shall thereupon be and become, immediately due and payable together with interest accrued thereon and together with the Yield-Maintenance Amount, if any, with respect to each Note of such Series, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by each Issuer. Each Issuer acknowledges, and the parties hereto agree, that each holder of a Note has the right to maintain its investment in the Notes free from repayment by the Issuer (except as herein specifically provided for) and without the occurrence of an Event of Default and that the provision for payment of Yield-Maintenance Amount by the Issuer in the event the Notes are prepaid or are accelerated as a result of an Event of Default is intended to provide compensation for the deprivation of such right under such circumstances.

​

​

statements of income, stockholders’ equity and cash flows for the two-month period ended on such date, prepared by the Company. Such financial statements (including any related schedules and/or notes) are true and correct in all material respects (subject, as to interim statements, to changes resulting from audits and year-end adjustments), have been prepared in accordance with generally accepted accounting principles consistently followed throughout the periods involved and show all liabilities, direct and contingent, of the Company and its Subsidiaries required to be shown in accordance with such principles. The balance sheets fairly present the condition of the Company and its Subsidiaries as at the dates thereof, and the statements of income, stockholders’ equity and cash flows fairly present the results of the operations of the Company and its Subsidiaries and their cash flows for the periods indicated. Since March 1, 2022, neither the Company nor any Subsidiary of the Company has paid or declared any dividend on any shares of its capital stock or made any other distribution on account of any shares of its capital stock (other than dividends or distributions payable solely to the Company or a Wholly-Owned Subsidiary of the Company) or redeemed, purchased, retired or otherwise acquired any shares of its capital stock or any warrants, rights or options to acquire, or securities convertible into or exchangeable for, any shares of its capital stock (other than from the Company or a Wholly-Owned Subsidiary of the Company). There has been no material adverse change in the business, property or assets, condition (financial or otherwise), operations or prospects of the Company and its Subsidiaries taken as a whole since December 25, 2021.

(i)Each Issuer has, and each of its Subsidiaries has, filed all federal, state and other income tax returns which, to the knowledge of the officers of any Issuer and its Subsidiaries, are required to be filed, and each has paid all taxes as shown on such returns and on all assessments received by it to the extent that such taxes have become due, except such taxes as are being actively contested in good faith by appropriate proceedings for which adequate reserves have been established in accordance with generally accepted accounting principles.  

​

(ii)No Issuer intends to treat any of the transactions contemplated by any Transaction Document as being a “reportable transaction” within the meaning of Treasury Regulation Section 1.6011-4.

​

the Federal Reserve System or to violate the Exchange Act, in each case as in effect now or as the same may hereafter be in effect.

(i)Each Issuer and each ERISA Affiliate have operated and administered each Pension Plan in compliance with all applicable laws except for such instances of noncompliance as have not resulted in and could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect. Neither any Issuer nor any ERISA Affiliate has incurred any liability pursuant to Title I or W of ERISA or the penalty or excise tax provisions of the Code relating to employee benefit plans (as defined in section 3 or ERISA), and no event, transaction or condition has occurred or exists that could, individually or in the aggregate, reasonably be expected to result in the incurrence of any such liability by any Issuer or any ERISA Affiliate, or in the imposition of any Lien on any of the rights, properties or assets of any Issuer or any ERISA Affiliate, in either case pursuant to Title I or W of ERISA or to section 430(k) of the Code or to any such penalty or excise tax provisions under the Code or Federal law or section 4068 of ERISA or by the granting of a security interest in connection with the amendment of a Plan, other than such liabilities or Liens as would not be individually or in the aggregate material in relation to the business, operations, affairs, financial condition, assets, properties, or prospects of the Company and its Subsidiaries taken as a whole.  

(ii)The present value of the aggregate benefit liabilities under each of the Pension Plans (other than Multiemployer Plans), determined as of the end of such Pension Plan’s most recently ended plan year on the basis of the actuarial assumptions specified for funding purposes in such Pension Plan’s most recent actuarial valuation report, did not exceed the aggregate current value of the assets of such Pension Plan allocable to such benefit liabilities. The term “benefit liabilities” has the meaning specified in section 4001 of ERISA and the terms “current value” and “present value” have the meaning specified in section 3 of ERISA.  

(iii)Each Issuer and its ERISA Affiliates have not incurred withdrawal liabilities (and are not subject to contingent withdrawal liabilities) under section 4201 or 4204 of ERISA in respect of Multiemployer Plans that individually or in the aggregate are material in relation to the business, operations, affairs, financial condition, assets, properties, or prospects of the Company and its Subsidiaries taken as a whole.  

(iv)The expected postretirement benefit obligation (determined as of the last day of the Company’s most recently ended Fiscal Year in accordance with Financial Accounting Standards Board Accounting Standards Codification Topic 715-60, without regard to liabilities attributable to continuation coverage mandated by section 4980B of the Code) of the Issuers and their Subsidiaries is not material in relation to the business, operations, affairs, financial condition, assets, properties, or prospects of the Company and its Subsidiaries taken as a whole.  

(v)The execution and delivery of this Agreement and the other Transaction Documents and the issuance and sale of the Notes will be exempt from, or will not involve any transaction which is subject to, the prohibitions of section 406 of ERISA and will not involve any transaction in connection with which a penalty could be imposed under section 502(i) of ERISA or a tax could be imposed pursuant to section 4975 of the Code. The representation by the Issuers in the next

​

preceding sentence is made in reliance upon and subject to the accuracy of each Purchaser’s representation in paragraph 9B.

​

the aggregate, could reasonably be expected to have a Material Adverse Effect, and neither any Issuer nor any of its Subsidiaries is in violation of any thereof in any material respect.

(i)Neither any Issuer nor any Controlled Entity is (a) is a Blocked Person, (b) has been notified that its name appears or may in the future appear on a State Sanctions List or (c) is a target of sanctions that have been imposed by the United Nations or the European Union.

(ii)Neither any Issuer nor any Controlled Entity (a) has violated, been found in violation of, or been charged or convicted under, any applicable U.S. Economic Sanctions Laws, Anti-Money Laundering Laws or Anti-Corruption Laws or (b) to any Issuer’s knowledge, is under

​

investigation by any Governmental Authority for possible violation of any U.S. Economic Sanctions Laws, Anti-Money Laundering Laws or Anti-Corruption Laws.  

(iii)No part of the proceeds from the sale of the Notes hereunder:

(iv)Each Issuer has established procedures and controls which it reasonably believes are adequate (and otherwise comply with applicable law) to ensure that such Issuer and each Controlled Entity is and will continue to be in compliance with all applicable U.S. Economic Sanctions Laws, Anti-Money Laundering Laws and Anti-Corruption Laws.

​

​

​

As used in this paragraph 9B, the terms “employee benefit plan”, “governmental plan”, and ^“separate account” shall have the respective meanings assigned to such terms in Section 3 of ERISA.

“Called Principal” shall mean, with respect to any Note, the principal of such Note that is to be prepaid pursuant to paragraph 4A(2) or 4B or is declared to be or otherwise becomes due and payable pursuant to paragraph 7A, as the context requires.

“Discounted Value” shall mean, with respect to the Called Principal of any Note, the amount obtained by discounting all Remaining Scheduled Payments with respect to such Called Principal from their respective scheduled due dates to the Settlement Date with respect to such Called Principal, in accordance with accepted financial practice and at a discount factor (as converted to reflect the periodic basis on which interest on such Note is payable, if interest is payable other than on a semi-annual basis) equal to the Reinvestment Yield with respect to such Called Principal.

“Reinvestment Yield” shall mean, with respect to the Called Principal of any Note, 0.50% over the yield to maturity implied by (i) the ask-side yields reported as of 10:00 a.m. (New York City local time) on the Business Day next preceding the Settlement Date with respect to such Called Principal for the most recent actively traded on the run U.S. Treasury securities having a maturity equal to the Remaining Average Life of such Called Principal as of such Settlement Date on the display designated as “Page PX1” on Bloomberg Financial Markets (or such other display as may replace Page PX1 on Bloomberg Financial Markets or, if Bloomberg Financial Markets shall cease to report such yields or shall cease to be Prudential Capital Group’s customary source of information for calculating yield-maintenance amounts on privately placed notes, then such source as is then Prudential Capital Group’s customary source of such information), or (ii) if such yields shall not be reported as of such time or the yields reported as of such time shall not be ascertainable (including by way of interpolation), the Treasury Constant Maturity Series yields reported, for the latest day for which such yields shall have been so reported as of the Business Day next preceding the Settlement Date with respect to such Called Principal, in Federal Reserve Statistical Release 11.15 (or any comparable successor publication) for U.S. Treasury securities having a constant maturity equal to the Remaining Average Life of such

​

Called Principal as of such Settlement Date. In the case of each determination under clause (i) or (ii) of the preceding sentence, such implied yield shall be determined, if necessary, by (a) converting U.S. Treasury bill quotations to bond equivalent yields in accordance with accepted financial practice and (b) interpolating linearly between (1) the applicable U.S. Treasury security with the maturity closest to and greater than such Remaining Average Life and (2) the applicable U.S. Treasury security with the maturity closest to and less than such Remaining Average Life. The Reinvestment Yield shall be rounded to that number of decimal places as appears in the coupon of the applicable Note.

“Remaining Average Life” shall mean, with respect to the Called Principal of any Note, the number of years (calculated to the nearest one-twelfth year) obtained by dividing (i) such Called Principal into (ii) the sum of the products obtained by multiplying (a) each Remaining Scheduled Payment of such Called Principal (but not of interest thereon) by (b) the number of years (calculated to the nearest one-twelfth year) which will elapse between the Settlement Date with respect to such Called Principal and the scheduled due date of such Remaining Scheduled Payment.

“Remaining Scheduled Payments” shall mean, with respect to the Called Principal of any Note, all payments of such Called Principal and interest thereon that would be due on or after the Settlement Date with respect to such Called Principal if no payment of such Called Principal were made prior to its scheduled due date.

“Settlement Date” shall mean, with respect to the Called Principal of any Note, the date on which such Called Principal is to be prepaid pursuant to paragraph 4A(2) or 4B or is declared to be or otherwise becomes due and payable pursuant to paragraph 7A, as the context requires.

“Yield-Maintenance Amount” shall mean, with respect to any Note, an amount equal to the excess, if any, of the Discounted Value of the Called Principal of such Note over the sum of (i) such Called Principal plus (ii) interest accrued thereon as of (including interest due on) the Settlement Date with respect to such Called Principal. The Yield-Maintenance Amount shall in no event be less than zero.

“Acceptance” shall have the meaning specified in paragraph 2A(5).

“Acceptance Day” shall have the meaning specified in paragraph 2A(5).

“Acceptance Window” shall have the meaning specified in paragraph 2A(5).

“Accepted Note” shall have the meaning specified in paragraph 2A(5).

“Acquisition” shall mean any transaction or series of related transactions for the purpose of or resulting, directly or indirectly, in (a) the acquisition of all or substantially all of the assets of a Person, or of all or substantially all of any business or division of a Person, (b) the acquisition of all or any portion of the Capital Securities of any Person, (c) a merger or consolidation or any other combination with another Person (other than a Person that is already a

​

Subsidiary), or (d) any other Investment in a Person; provided, however, that an Investment in publicly-traded securities of a Person shall not constitute an Acquisition so long as such Investment does not result in (i) the acquisition of all or substantially all of the assets or Capital Securities of such Person, or (ii) a merger, consolidation or other combination with such Person.

“Additional Covenant” shall mean any affirmative or negative covenant or similar restriction applicable to any Issuer or any Subsidiary of any Issuer (regardless of whether such provision is labeled or otherwise characterized as a covenant), including any defined terms as used therein, the subject matter of which either (i) is similar to that of any covenant in paragraph 5 or 6 of this Agreement, or related definitions in this paragraph 10B, but contains one or more percentages, amounts, formulas or other provisions that are more restrictive as to any Issuer or any Subsidiary of any Issuer or more beneficial to the holder or holders of the Debt to which the document containing such covenant or similar restriction relates than as set forth herein (and such covenant or similar restriction shall be deemed an Additional Covenant only to the extent that it is more restrictive or more beneficial) or (ii) is different from the subject matter of any covenant in paragraph 5 or 6 of this Agreement, or the related definitions in this paragraph 10B.

“Additional Default” shall mean any provision contained in any Primary Debt Facility, including any defined terms as used therein, which permits the holder or holders of any Debt thereunder or any agent or trustee for such holder to accelerate (with the passage of time or giving of notice or both) the maturity thereof or otherwise require any Issuer or any Subsidiary of any Issuer to purchase such Debt prior to the stated maturity thereof (or automatically causes such Debt to so accelerate or be required to be purchased) and which either (i) is similar to any Default or Event of Default contained in paragraph 7A of this Agreement, or related definitions in this paragraph 10B, but contains one or more percentages, amounts, formulas or other provisions that are more restrictive as any Issuer or any Subsidiary of any Issuer, have a shorter grace period or are more beneficial to the holders of such Debt than as set forth herein (and such provision shall be deemed an Additional Default only to the extent that it is more restrictive, has a shorter grace period or is more beneficial) or (ii) is different from the subject matter of any Default or Event of Default contained in paragraph 7A of this Agreement, or the related definitions in this paragraph 10B.

“Affiliate” shall mean (i) with respect to any Person, (a) any other Person directly or indirectly Controlling, Controlled by, or under direct or indirect common Control with, such first Person, or (b) any officer or director of such Person and (ii) with respect to Prudential, shall include any managed account, investment fund or other vehicle for which Prudential or any Affiliate of Prudential then acts as investment advisor or portfolio manager.

“Anti-Corruption Laws” shall mean any law or regulation in a U.S. or any non-U.S. jurisdiction regarding bribery or any other corrupt activity, including the U.S. Foreign Corrupt Practices Act and the U.K. Bribery Act 2010.

“Anti-Money Laundering Laws” shall mean any law or regulation in a U.S. or any non-U.S. jurisdiction regarding money laundering, drug trafficking, terrorist-related activities or other money laundering predicate crimes, including the Currency and Foreign Transactions Reporting Act of 1970 (otherwise known as the Bank Secrecy Act), the USA PATRIOT Act.

​

“Asset Disposition” shall mean the sale, lease, assignment or other transfer for value (each, a “Disposition”) by the Company or any of its Subsidiaries to any Person (other than the Company or a Subsidiary) of any asset or right of the Company or such Subsidiary (including, the loss, destruction or damage of any thereof or any actual or threatened (in writing to the Company or any Subsidiary) condemnation, confiscation, requisition, seizure or taking thereof) other than (i) the Disposition of any asset which is to be replaced, and is in fact replaced, within 30 days with another asset performing the same or a similar function and (ii) the sale or lease of inventory in the ordinary course of business.

“Available Facility Amount” shall have the meaning specified in paragraph 2A(1).

“Bank Agent” shall mean CIBC Bank USA (formerly-known-as The Private Bank and Trust Company) as agent for the Banks under the Credit Agreement, and its successors and assigns in that capacity.

“Banks” shall mean CIBC Bank USA (formerly-known-as The Private Bank and Trust Company), BMO Harris Bank N.A., and each other lender from time to time party to the Credit Agreement, and their respective successors and assigns.

“Bankruptcy Law” shall have the meaning given in clause (viii) of paragraph 7A.

“Blocked Person” shall mean (i) a Person whose name appears on the list of Specially Designated Nationals and Blocked Persons published by OFAC, (ii) a Person, entity, organization, country or regime that is blocked or a target of sanctions that have been imposed under U.S. Economic Sanctions Laws or (iii) a Person that is an agent, department or instrumentality of, or is otherwise beneficially owned by, controlled by or acting on behalf of, directly or indirectly, any Person, entity, organization, country or regime described in clause (i) or (ii).

“Business Day” shall mean any day other than a Saturday, a Sunday or a day on which commercial banks in New York City are required or authorized to be closed.

“Cancellation Date” shall have the meaning specified in paragraph 2A(8)(iii).  

​

“Cancellation Fee” shall have the meaning specified in paragraph 2A(8)(iii).  

​

“Capital Expenditures” shall mean all expenditures which, in accordance with GAAP, would be required to be capitalized and shown on the consolidated balance sheet of the Company, including expenditures in respect of Capital Leases, but excluding expenditures made in connection with the replacement, substitution or restoration of assets to the extent financed (a) from insurance proceeds (or other similar recoveries) paid on account of the loss of or damage to the assets being replaced or restored or (b) with awards of compensation arising from the taking by eminent domain or condemnation of the assets being replaced.

“Capital Lease” shall mean with respect to any Person, any lease of (or other agreement conveying the right to use) any real or personal property by such Person that, in conformity with GAAP, is accounted for as a capital lease on the balance sheet of such Person.

​

“Capital Securities” shall mean with respect to any Person, all shares, interests, participations or other equivalents (however designated, whether voting or non-voting) of such Person’s capital, whether now outstanding or issued or acquired after the date of closing, including common shares, preferred shares, membership interests in a limited liability company, limited or general partnership interests in a partnership or any other equivalent of such ownership interest.

“Capitalized Lease Obligation” shall mean as to any Person, all rental obligations of such Person, as lessee under a Capital Lease which are or will be required to be capitalized on the books of such Person.

“Change of Control” shall mean the occurrence of any of the following events: (i) any Person or two or more Persons acting in concert acquiring beneficial ownership (within the meaning of Rule 13d-3 of the Securities and Exchange Commission under the Securities Exchange Act of 1934), directly or indirectly, of Capital Securities of the Company representing 50% or more of the combined voting power of all Capital Securities of the Company entitled to vote in the election of directors; (ii) any Person or two or more Persons acting in concert acquiring by contract or otherwise, or entering into a contract or arrangement which upon consummation will result in its or their acquisition of, control over Capital Securities of the Company representing 50% or more of the combined voting power of all Capital Securities of the Company entitled to vote in the election of directors; or (iii) the Company shall cease to, directly or indirectly, own and control 100% of each class of the outstanding Capital Securities of each Subsidiary.

“CISADA” shall mean the Comprehensive Iran Sanctions Accountability and Divestment Act.

“closing” or “date of closing” shall have the meaning given in paragraph 2 hereof.

“Closing Day” shall mean, with respect to any Accepted Note, the Business Day specified for the closing of the purchase and sale of such Accepted Note in the Request for Purchase of such Accepted Note, provided that (i) if the Issuers and the Purchaser which is obligated to purchase such Accepted Note agree on an earlier Business Day for such closing, the “Closing Day” for such Accepted Note shall be such earlier Business Day, and (ii) if the closing of the purchase and sale of such Accepted Note is rescheduled pursuant to paragraph 2A(7), the Closing Day for such Accepted Note, for all purposes of this Agreement except references to “original Closing Day” in paragraph 2A(8)(ii), shall mean the Rescheduled Closing Day with respect to such Accepted Note.  

​

“Code” shall mean the Internal Revenue Code of 1986, as amended.

“Collateral” shall mean all accounts, accounts receivable, inventory, machinery, equipment, general intangibles, real estate, fixtures and all other tangible or intangible property, real, personal or mixed, of any Issuer or any of its Subsidiaries, whether now owned or hereafter acquired and whether now or hereafter existing.

​

“Collateral Access Agreement” shall mean an agreement in form and substance reasonably satisfactory to Required Holder(s) pursuant to which a mortgagee or lessor of real property on which collateral is stored or otherwise located, or a warehouseman, processor or other bailee of Inventory or other property owned by any Issuer or any Guarantor, acknowledges the Liens of the Collateral Agent and waives any Liens held by such Person on such property, and, in the case of any such agreement with a mortgagee or lessor, permits the Collateral Agent reasonable access to and use of such real property following the occurrence and during the continuance of an Event of Default to assemble, complete and sell any collateral stored or otherwise located thereon, or any one or more of them.

“Collateral Agent” shall mean CIBC Bank USA (formerly-known-as The Private Bank and Trust Company), in its capacity as collateral agent under the Intercreditor Agreement, and its successor and assigns in that capacity.

“Collateral Documents” shall mean the Security Agreements, the Pledge Agreements, any Control Agreement, any Collateral Access Agreements and any other agreement, document or instrument in effect on the date of closing or executed by any Issuer or any Guarantor after the date of closing under which any Issuer or any Guarantor has granted a lien upon or security interest in any property or assets to the Collateral Agent to secure all or any part of the obligations of the Issuers under this Agreement or the Notes or of any Guarantor under any Guaranty Agreement, and all financing statements, certificates, documents and instruments relating thereto or executed or provided in connection therewith, each as amended, restated, supplemented or otherwise modified from time to time.

“Confirmation of Acceptance” shall have the meaning specified in paragraph 2A(5).

“Contingent Liability” shall mean with respect to any Person, each obligation and liability of such Person and all such obligations and liabilities of such Person incurred pursuant to any agreement, undertaking or arrangement by which such Person: (i) guarantees, endorses or otherwise becomes or is contingently liable upon (by direct or indirect agreement, contingent or otherwise, to provide funds for payment, to supply funds to, or otherwise to invest in, a debtor, or otherwise to assure a creditor against loss) the indebtedness, dividend, obligation or other liability of any other Person in any manner (other than by endorsement of instruments in the course of collection), including any indebtedness, dividend or other obligation which may be issued or incurred at some future time; (ii) guarantees the payment of dividends or other distributions upon the Capital Securities of any other Person; (c) undertakes or agrees (whether contingently or otherwise): (i) to purchase, repurchase, or otherwise acquire any indebtedness, obligation or liability of any other Person or any or any property or assets constituting security therefor, (ii) to advance or provide funds for the payment or discharge of any indebtedness, obligation or liability of any other Person (whether in the form of loans, advances, stock purchases, capital contributions or otherwise), or to maintain solvency, assets, level of income, working capital or other financial condition of any other Person, or (iii) to make payment to any other Person other than for value received; (d) agrees to lease property or to purchase securities, property or services from such other Person with the purpose or intent of assuring the owner of such indebtedness or obligation of the ability of such other Person to make payment of the indebtedness or obligation; (e) to induce the issuance of, or in connection with the issuance of, any letter of credit for the benefit of such other

​

Person; or (f) undertakes or agrees otherwise to assure a creditor against loss. The amount of any Contingent Liability shall (subject to any limitation set forth herein) be deemed to be the outstanding principal amount (or maximum permitted principal amount, if larger) of the indebtedness, obligation or other liability guaranteed or supported thereby.

“Control” shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise. A person shall be deemed to be “controlled by” any other Person if such other Person possesses, directly or indirectly, power to vote 5% or more of the securities (on a fully diluted basis) having ordinary voting power for the election of directors or managers of such Person. “Controlling” and “Controlled” shall have the meanings correlative thereto.

“Control Agreement” shall mean an account control agreement, in form and substance satisfactory to Required Holder(s), among the Collateral Agent, the applicable Issuer or Guarantor and the depository or securities intermediary for any deposit, checking or brokerage account opened or maintained by an Issuer or Guarantor.

“Controlled Entity” shall mean (i) any of the Subsidiaries of any Issuer and any of their or any Issuers’ respective Controlled Affiliates and (ii) if any Issuer has a parent company, such parent company and its Controlled Affiliates.

“Controlled Group” shall mean all members of a controlled group of corporations, all members of a controlled group of trades or businesses (whether or not incorporated) under common control and all members of an affiliated service group which, together with the Company or any of its Subsidiaries, are treated as a single employer under Section 414 of the Code or Section 4001 of ERISA.

“Credit Agreement” shall mean the Existing Credit Agreement, as amended by the amendment thereto contemplated by paragraph 3A(2), and as further amended, restated, supplemented or otherwise modified from time to time.

“Debt” shall mean with respect to any Person, without duplication, (i) all indebtedness of such Person, (ii) all borrowed money of such Person, whether or not evidenced by bonds, debentures, notes or similar instruments, (iii) all obligations of such Person as lessee under Capital Leases which have been or should be recorded as liabilities on a balance sheet of such Person in accordance with GAAP, not including obligations of an Issuer or a Guarantor under non-recourse discounted leases, (iv) all obligations of such Person to pay the deferred purchase price of property or services (excluding trade accounts payable in the ordinary course of business), (v) all indebtedness secured by a Lien on the property of such Person, whether or not such indebtedness shall have been assumed by such Person; provided that if such Person has not assumed or otherwise become liable for such indebtedness, such indebtedness shall be measured at the fair market value of such property securing such indebtedness at the time of determination, (vi) all obligations, contingent or otherwise, with respect to the face amount of all letters of credit (whether or not drawn), bankers’ acceptances and similar obligations issued for the account of such Person, (vii) all Hedging Obligations of such Person, (viii) all Contingent Liabilities of such Person and (ix) all Debt of any partnership of which such Person is a general partner.

​

“Default” shall mean any of the events specified in paragraph 7A, whether or not any requirement for such event to become an Event of Default has been satisfied.

“Default Rate” shall, with respect to any Series of Notes, have the meaning set forth in such Series of Notes.

“Delayed Delivery Fee” shall have the meaning specified in paragraph 2A(8)(ii).  

“Depreciation” shall mean the total amounts added to depreciation, amortization, obsolescence, valuation and other proper reserves, as reflected on the Company’s financial statements and determined in accordance with GAAP.

“EBITDA” shall mean for any period, the Company’s and the Subsidiaries’ “Income from Operations” (as set forth on their consolidated income statement) plus leasing related cash interest expense, plus Depreciation, plus amortization, plus compensation expense related to the granting of stock options.

“Effective Date” shall mean April 12, 2022.

“Environmental Claims” shall mean all claims, however asserted, by any governmental, regulatory or judicial authority or other Person alleging potential liability or responsibility for violation of any Environmental Law, or for release or injury to the environment.

“Environmental Laws” shall mean any and all federal, state, local, and foreign statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses, agreements or governmental restrictions relating to pollution and the protection of the environment or the release of any materials into the environment, including but not limited to those related to Hazardous Materials.

“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended.  

“ERISA Affiliate” shall mean any member of the same Controlled Group of any Issuer.  

“Event of Default” shall mean any of the events specified in paragraph 7A, provided that there has been satisfied any requirement in connection with such event for the giving of notice, or the lapse of time, or the happening of any further condition, event or act.

“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.

“Existing Credit Agreement” shall mean that certain Credit Agreement, dated as of July 13, 2010, among the Issuers, the Bank Agent and the Banks, as amended by Amendment No. 1 thereto, dated as of January 30, 2012, Amendment No. 2 thereto, dated as of February 29, 2012, Amendment No. 3 thereto, dated as of February 21, 2014, Amendment No. 4 thereto, dated as of April 14, 2015, Amendment No. 5 thereto, dated as of July 18, 2017, Amendment No. 6 thereto, dated as of December 16, 2019, Amendment No. 7 thereto, dated as of September 2, 2020,

​

Amendment No. 8 thereto, dated as of October 14, 2020, Amendment No. 9 thereto, dated as of September 10, 2021, and Amendment No. 10 thereto, dated as of the Effective Date.

“Existing Note Agreement” shall mean that certain Note Agreement dated as of May 14, 2015, by and among the Issuers and certain Prudential Affiliates, as amended by Amendment No. 1 thereto, dated as of July 19, 2017, Amendment No. 2 thereto, dated as of December 16, 2019, Amendment No. 3 thereto, dated as of September 2, 2020, Amendment No. 4 thereto, dated as of October 14, 2020, and Amendment No. 5 thereto, dated as of September 10, 2021.

​

“Existing Prudential Notes” shall mean all notes issued and outstanding under the Existing Note Agreement.

​

“Facility” shall have the meaning specified in paragraph 2A(1).

​

“Fiscal Quarter” shall mean a fiscal quarter of a Fiscal Year.

“Fiscal Year” shall mean the fiscal year of the Company and its Subsidiaries, which period shall be the 12-month period ending on the last Saturday of each year. References to a Fiscal Year with a number corresponding to any calendar year (e.g., “Fiscal Year 2021”) refer to the Fiscal Year ending on the last Saturday of such calendar year.

“Fixed Charge Coverage Ratio” shall mean as of any date of determination and calculated for a trailing twelve month period ending on such date of determination, the ratio of (a) the total EBITDA of the Company and its Subsidiaries for such period, minus (i) the sum of income taxes paid in cash by the Company and its Subsidiaries in such period, (ii) the sum of all Capital Expenditures made by the Company and its Subsidiaries in such period, and (iii) the sum of all distributions (excluding any Special Dividend made in such period) made by the Company and its Subsidiaries in such period, divided by (b) the sum for such period of (i) cash interest expense plus (ii) all scheduled payments of principal on Debt (excluding, (A) the Specified Principal Payment and (B) for the avoidance of doubt, any payment pursuant to Section 6 of the Credit Agreement).

“GAAP” or “generally accepted accounting principles” shall have the meaning given in paragraph 10C.

“Governmental Authority” shall mean

(i)the United States of America or any state or other political subdivision thereof, or

(ii)any other jurisdiction in which the Company or any Subsidiary conducts all or any part of its business, or which asserts jurisdiction over any properties of the Company or any Subsidiary, or

(b)any entity exercising executive, legislative, judicial, regulatory or administrative functions of, or pertaining to, any such government.

​

“Governmental Official” shall mean any governmental official or employee, employee of any government-owned or government-controlled entity, political party, any official of a political party, candidate for political office, official of any public international organization or anyone else acting in an official capacity.

“Guaranty Agreement” and “Guaranty Agreements” shall have the meaning given in paragraph 5J hereof.

“Hazardous Materials” shall mean any and all pollutants, toxic or hazardous wastes or other substances that might pose a hazard to health and safety, the removal of which may be required or the generation, manufacture, refining, production, processing, treatment, storage, handling, transportation, transfer, use, disposal, release, discharge, spillage, seepage or filtration of which is or shall be restricted, prohibited or penalized by any applicable law including, but not limited to, asbestos, urea formaldehyde foam insulation, polychlorinated biphenyls, petroleum, petroleum products, lead based paint, radon gas or similar restricted, prohibited or penalized substances.

“Hedging Agreement” shall mean any interest rate, currency or commodity swap agreement, cap agreement or collar agreement, and any other agreement or arrangement designed to protect a Person against fluctuations in interest rates, currency exchange rates or commodity prices.

“Hedging Obligation” shall mean with respect to any Person, any liability of such Person under any Hedging Agreement. The amount of any Person’s obligation in respect of any Hedging Obligation shall be deemed to be the incremental obligation that would be reflected in the financial statements of such Person in accordance with GAAP.

“including” shall mean, unless the context clearly requires otherwise, “including without limitation”, whether or not so stated.

“Issuers” shall have the meaning given in the introductory paragraph to this Agreement.

“Indemnitee” shall have the meaning set forth in paragraph 11B.

“INHAM Exemption” shall have the meaning set forth in paragraph 9B.  

“Institutional Investor” shall mean any insurance company, commercial, investment or merchant bank, finance company, mutual fund, registered money or asset manager, savings and loan association, credit union, registered investment advisor, pension fund, investment company, licensed broker or dealer, “qualified institutional buyer” (as such term is defined under

​

Rule 144A promulgated under the Securities Act) or “accredited investor” (as such term is defined in Regulation D promulgated under the Securities Act).

“Intercreditor Agreement” shall have the meaning given in paragraph 3A(1)(i) hereof.

“Investment” shall mean with respect to any Person, any investment in another Person, whether by acquisition of any Capital Security, by making any loan or advance, or by making an Acquisition.

“Issuance Period” shall have the meaning specified in paragraph 2A(2).

“Leverage Ratio” shall mean as of any date of determination, the ratio of (i) Debt of the Company and its Subsidiaries on such date minus consolidated Subordinated Debt of the Company and its Subsidiaries on such date minus non-recourse Debt of the Company and its Subsidiaries on such date in connection with discounting activities of the Company and its Subsidiaries divided by (ii) EBITDA of the Company and its Subsidiaries for the trailing twelve month period ending on such date.

“Lien” shall mean any mortgage, pledge, security interest, encumbrance, minimum or compensating balance arrangement, lien (statutory or otherwise) or charge of any kind (including any agreement to give any of the foregoing, any conditional sale or other title retention agreement, any lease in the nature thereof (including Capital Leases), and the filing of or agreement to give any financing statement under the Uniform Commercial Code of any jurisdiction), or any other type of preferential arrangement for the purpose, or having the effect, of protecting a creditor against loss or securing the payment or performance of an obligation.

“Material Adverse Effect” shall mean a (i) material adverse change in, or a material adverse effect upon, the financial condition, operations, assets, business, properties or prospects of the Issuers taken as a whole, (ii) material impairment of the ability of any Issuer or Guarantor to perform any of its respective obligations under this Agreement the Notes or any other Transaction Document or (iii) material adverse effect upon any substantial portion of the collateral under the Collateral Documents or upon the legality, validity, binding effect or enforceability against any Issuer or Guarantor of this Agreement, the Notes or any other Transaction Document.

“Multiemployer Plan” shall mean any Plan which is a “multiemployer plan” (as such term is defined in section 4001(a)(3) of ERISA).

“NAIC” shall have the meaning set forth in paragraph 9B.

“NAIC Annual Statement” shall have the meaning set forth in paragraph 9B.  

“Net Cash Proceeds” shall mean, with respect to any Asset Disposition, the aggregate cash proceeds (including cash proceeds received pursuant to policies of insurance or by way of deferred payment of principal pursuant to a note, installment receivable or otherwise, but only as and when received) received by the Company or any Subsidiary pursuant to such Asset Disposition net of (i) the direct costs relating to such sale, transfer or other disposition (including

​

sales commissions and legal, accounting and investment banking fees), (ii) taxes paid or reasonably estimated by the Company and its Subsidiaries to be payable as a result thereof (after taking into account any available tax credits or deductions and any tax sharing arrangements) and (iii) amounts required to be applied to the repayment of any Debt secured by a Lien on the asset subject to such Asset Disposition (other than the Senior Indebtedness (as defined in the Intercreditor Agreement)).

“Noteholder Portion” shall mean, with respect to any event giving rise to an offer to prepay pursuant to paragraph 4E, a percentage expressed as a fraction, the numerator of which equals the aggregate outstanding principal amount of the Notes on the date of such event and the denominator of which equals the sum of the aggregate outstanding principal amount of the Notes on such date plus the aggregate principal amount of the Debt outstanding under the Credit Agreement and the Existing Note Agreement on such date.

“Notes” shall have the meaning given in paragraph 1 hereof.

“OFAC” shall mean Office of Foreign Assets Control, United States Department of the Treasury.

“OFAC Sanctions Program” shall mean any economic or trade sanction that OFAC is responsible for administering and enforcing. A list of OFAC Sanctions Programs may be found at http://www.treasury.gov/resource-center/sanctions/Programs/Pages/Programs.aspx.

“Officer’s Certificate” shall mean a certificate signed in the name of an Issuer by its President, one of its Vice Presidents or its Treasurer.

“Operating Lease” shall mean any lease of (or other agreement conveying the right to use) any real or personal property by the Company or any of its Subsidiaries, as lessee, other than any Capital Lease.

“PBGC” shall mean the Pension Benefit Guaranty Corporation, or any successor or replacement entity thereto under ERISA.

“Pension Plan” shall mean a “pension plan”, as such term is defined in Section 3(2) of ERISA, which is subject to Title W of ERISA or the minimum funding standards of ERISA (other than a Multiemployer Pension Plan), and as to which the Company or any member of the Controlled Group may have any liability, including any liability by reason of having been a substantial employer within the meaning of Section 4063 of ERISA at any time during the preceding five years, or by reason of being deemed to be a contributing sponsor under Section 4069 of ERISA.

“Person” shall mean and include an individual, a partnership, a joint venture, a corporation, a trust, a limited liability company, an unincorporated organization and a government or any department or agency thereof.

“Pledge Agreement” and “Pledge Agreements” shall have the meaning given in paragraph 3A(1)(iii) hereof.

​

“Primary Debt Facility” shall mean (i) the Credit Agreement, (ii) the Existing Note Agreement or (iii) any credit facility that replaces or refinances the Credit Agreement, the Existing Note Agreement or any other Primary Debt Facility.

“Program Repurchases” shall mean immaterial repurchases or redemptions of Capital Securities of the Company using operating cash on the balance sheet of the Company or proceeds of loans and notes issued under any Primary Debt Facility or this Agreement, in each case pursuant to a share repurchase program approved by the Company’s board of directors.

“Prudential” shall mean PGIM, Inc.

“Prudential Affiliate” shall mean (a) any corporation or other entity controlling, controlled by, or under common control with, Prudential, or (b) any managed account or investment fund which is  managed by Prudential or a Prudential Affiliate described in clause (a) of this definition.  For purposes of this definition, the terms “control”, “controlling” and “controlled” shall mean the ownership, directly or through subsidiaries, of a majority of a corporation’s or other entity’s voting stock or equivalent voting securities or interests.

“Purchasers” shall mean, with respect to any Accepted Notes, the Prudential Affiliate(s), and their respective successors and assigns, which are purchasing such Accepted Notes.

“QPAM Exemption” shall have the meaning set forth in paragraph 9B.  

“Regular Dividends” means those regular quarterly cash dividends paid by the Company in respect of its Capital Securities consistent with past practices.

“Related Parties”  shall mean, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees and advisors of such Person and of such Person’s Affiliates.

“Request for Purchase” shall have the meaning specified in paragraph 2A(3).  

“Required Holder(s)” shall mean the holder or holders of more than 50% of the aggregate principal amount of the Notes or of a Series of Notes, as the context may require, from time to time outstanding.

“Rescheduled Closing Day” shall have the meaning specified in paragraph 2A(7).  

“Responsible Officer” of any Issuer shall mean the chief executive officer, chief operating officer, chief financial officer or chief accounting officer of such Issuer or any other officer of such Issuer involved principally in its financial administration or its controllership function.

“Securities Act” shall mean the Securities Act of 1933, as amended.

“Security Agreement” and “Security Agreements” shall have the meaning given in paragraph 3A(1)(ii) hereof.

​

“Series” shall have the meaning specified in paragraph 1.

“Shelf Notes” shall have the meaning given in paragraph 1 hereof.

“Significant Holder” shall mean (i) each Purchaser, so long as such Purchaser or any of its Affiliates shall hold (or be committed under this Agreement to purchase) any Note, or (ii) any other Person which, together with its Affiliates, is the holder of at least 5% of the aggregate principal amount of the Notes of any Series from time to time outstanding.

“Special Dividends” means all dividends or other distributions paid by the Company in respect of its Capital Securities other than Regular Dividends, whether paid in cash or other property.

“Special Dividend Payment/Redemption Conditions” with respect to the payment of any Special Dividend or any purchase or redemption of the Company’s Capital Securities (other than Program Repurchases), the satisfaction of the following conditions:

“Specified Principal Payment” means (i) the $30,000,000 principal payment due on September 10, 2028 with respect to the Company’s $30,000,000.00 3.18% Senior Secured Notes issued to certain Prudential Affiliates, as the same are outstanding as of the Effective Date and (ii) with respect to any Notes, to the extent such Notes are non-amortizing term notes that is due and payable in one principal payment on the stated maturity date of such Notes, such principal payment, so long as such principal payment consists of the payment in full of such note and, in each case with respect to the payments described in clauses (i) and clauses (ii), such payments are made with the proceeds of Debt that is permitted under paragraph 6B of this Agreement.

“State Sanctions List” shall mean a list that is adopted by any state Governmental Authority within the United States of America pertaining to Persons that engage in investment or other commercial activities in Iran or any other country that is a target of economic sanctions imposed under U.S. Economic Sanctions Laws.

“Structuring Fee” shall have the meaning specified in paragraph 2A(8)(i).  

“Subordinated Debt” shall mean any unsecured Debt of the Company which has subordination terms, covenants, pricing and other terms which have been approved in writing by the Required Holder(s).

​

“Subordinated Debt Documents” shall mean all documents and instruments relating to the Subordinated Debt and all amendments and modifications thereof approved by the Required Holder(s).

“Subordination Agreements” shall mean the provisions of all subordination agreements executed by a holder of Subordinated Debt in favor of the holders of the Notes, from time to time after the date of closing.

“Subsidiary” shall mean, as to any Person, any corporation, association or other business entity in which such Person or one or more of its Subsidiaries or such Person and one or more of its Subsidiaries owns sufficient equity or voting interests to enable it or them (as a group) ordinarily, in the absence of contingencies, to elect a majority of the directors (or Persons performing similar functions) of such entity, and any partnership or joint venture if more than a 50% interest in profits or capital thereof is owned by such Person or one or more of its Subsidiaries or such Person and one or more of its Subsidiaries (unless such partnership can and does ordinarily take major business actions without the approval of such Person or one or more of its Subsidiaries). Unless the context otherwise clearly requires, any reference to a “Subsidiary” is a reference to a Subsidiary of the Company.

“Tangible Net Worth” shall mean as of any date of determination, the sum of the amounts set forth on the balance sheet of the Company and the Subsidiaries as total shareholder equity of the Company and the Subsidiaries, plus any Subordinated Debt, minus the book value of all intangible assets of the Company and the Subsidiaries (including all such items as goodwill, trade names, service marks, copyrights, patents, licenses, deferred items, unamortized debt discount, prepaid expenses and any other items deemed intangible by the Required Holder(s)), minus Investments in non-public companies net of cash dividends received in respect of such Investments.

“Total Plan Liability” shall mean at any time, the present value of all vested and unvested accrued benefits under all Pension Plans, determined as of the then most recent valuation date for each Pension Plan, using PBGC actuarial assumptions for single employer plan terminations.

“Transaction Documents” shall mean this Agreement, the Notes, the Intercreditor Agreement, the Issuers’ Acknowledgment to Intercreditor Agreement, the Guaranty Agreements, the Collateral Documents and the other agreements, documents, certificates and instruments now or hereafter executed or delivered by any Issuer, any Guarantor or any Subsidiary or Affiliate of any Issuer or any Guarantor in connection with this Agreement.

“Transferee” shall mean any direct or indirect transferee of all or any part of any Note purchased by any Purchaser under this Agreement.

“UCC” shall mean the Uniform Commercial Code as in effect in the State of Illinois.

“Unfunded Liability” shall mean the amount (if any) by which the present value of all vested and unvested accrued benefits under all Pension Plans exceeds the fair market value

​

of all assets allocable to those benefits, all determined as of the then most recent valuation date for each Pension Plan, using PBGC actuarial assumptions for single employer plan terminations.

“USA PATRIOT Act” shall mean United States Public Law 107-56, Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, as amended from time to time, and the rules and regulations promulgated thereunder from time to time in effect.

“U.S. Economic Sanctions Laws” shall mean those laws, executive orders, enabling legislation or regulations administered and enforced by the United States pursuant to which economic sanctions have been imposed on any Person, entity, organization, country or regime, including the Trading with the Enemy Act, the International Emergency Economic Powers Act, the Iran Sanctions Act, the Sudan Accountability and Divestment Act and any other OFAC Sanctions Program.

“Voting Stock” shall mean, with respect to any corporation, any shares of stock of such corporation whose holders are entitled under ordinary circumstances to vote for the election of directors of such corporation (irrespective of whether at the time stock of any other class or classes shall have or might have voting power by reason of the happening of any contingency).

“Wholly-Owned Subsidiary” shall mean any Subsidiary of the Company all of the outstanding capital stock or other equity interests of every class of which is owned by the Company or another Wholly-Owned Subsidiary of the Company, and which has outstanding no options, warrants, rights or other securities entitling the holder thereof (other than the Company or a Wholly-Owned Subsidiary) to acquire shares of capital stock or other equity interests of such Subsidiary.

“Winmark Capital” shall have the meaning given in the introductory paragraph of this Agreement.

“Wirth” shall have the meaning given in the introductory paragraph of this Agreement.

​

covenant (or if the Required Holder(s) notify the Company that the Required Holder(s) wish to amend paragraph 6 (or any related definition) for such purpose), then the Issuers’ compliance with such covenant shall be determined on the basis of GAAP in effect immediately before the relevant change in GAAP became effective, until either such notice is withdrawn or such covenant (or related definition) is amended in a manner satisfactory to the Company and the Required Holder(s) and the Company shall provide to the holders of the Notes financial statements and any other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Any reference herein to any specific citation, section or form of law, statute, rule or regulation shall refer to such new, replacement or analogous citation, section or form should such citation, section or form be modified, amended or replaced. For purposes of determining compliance with this Agreement (including, without limitation, Article 5, Article 6 and the definition of “Debt”), any election by the Company to measure any financial liability using fair value (as permitted by Financial Accounting Standards Board Accounting Standards Codification Topic No. 825-10-25 – Fair Value Option, International Accounting Standard 39 – Financial Instruments: Recognition and Measurement or any similar accounting standard) shall be disregarded and such determination shall be made as if such election had not been made.

​

The Issuers also jointly and severally agree to promptly pay or reimburse each Purchaser or holder of a Note (upon demand, in accordance with each such Purchaser’s or holder’s written instruction) for all fees and costs paid or payable by such Purchaser or holder to the Capital Markets & Investment Analysis Office of the National Association of Insurance Commissioners in connection with the initial filing of this Agreement and all related documents and financial information, and all subsequent annual and interim filings of documents and financial information related to this Agreement, with such Capital Markets & Investment Analysis Office or any successor organization acceding to the authority thereof.

The Issuers shall indemnify each holder of the Notes and each of its Related Parties (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses (including the fees, charges and disbursements of any counsel for any Indemnitee), and shall indemnify and hold harmless each Indemnitee from all fees and time charges and disbursements for attorneys who may be employees of any Indemnitee, incurred by any Indemnitee or asserted against any Indemnitee by any third

​

party or by any Issuer or any Guarantor arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any other Transaction Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of their respective obligations hereunder or thereunder, or the consummation of the transactions contemplated hereby or thereby, (ii) any Note or the use or proposed use of the proceeds therefrom, (iii) any actual or alleged presence or release of Hazardous Materials on or from any property owned or operated by the Issuers, the Guarantors or any of their Subsidiaries, or any Environmental Liability related in any way to the Issuers, the Guarantors or any of their Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by any Issuer or any Guarantor, and regardless of whether any Indemnitee is a party thereto IN ALL CASES, WHETHER OR NOT CAUSED BY OR ARISING, IN WHOLE OR IN PART, OUT OF THE COMPARATIVE, CONTRIBUTORY OR SOLE NEGLIGENCE OF THE INDEMNITEE; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee or (y) result from a claim brought by any Issuer or any Guarantor against an Indemnitee for breach in bad faith of such Indemnitee’s obligations hereunder or under any other Transaction Document, if such Issuer or such Guarantor has obtained a final and nonappealable judgment in its favor on such claim as determined by a court of competent jurisdiction.

The obligations of the Issuers under this paragraph 11B shall survive the transfer of any Note or portion thereof or interest therein by any Purchaser or Transferee and the payment of any Note.

​

bound by any consent authorized by this paragraph 11C, whether or not such Note shall have been marked to indicate such consent, but any Notes issued thereafter may bear a notation referring to any such consent. No course of dealing between any Issuer or any Guarantor and the holder of any Note nor any delay in exercising any rights hereunder or under any other Transaction Document Note shall operate as a waiver of any rights of any holder of any Note. Without limiting the generality of the foregoing, no negotiations or discussions in which any holder of any Note may engage regarding any possible amendments, consents or waivers with respect to this Agreement or any other Transaction Document shall constitute a waiver of any Default or Event of Default, any term of this Agreement or any other Transaction Documents or any rights of any such holder under this Agreement or any other Transaction Document. As used herein and in the Notes, the term “this Agreement” and references thereto shall mean this Agreement as it may from time to time be amended or supplemented.

​

​

in connection with the delivery to any holder of a Note of information required to be delivered to such holder under this Agreement or requested by such holder (other than a holder that is a party to this Agreement or its nominee), such holder will enter into an agreement with the Company embodying the provisions of this paragraph 11F.

In the event that as a condition to receiving access to information relating to any Issuer or any of its Subsidiaries in connection with the transactions contemplated by or otherwise pursuant to this Agreement, any Purchaser or holder of a Note is required to agree to a confidentiality undertaking (whether through IntraLinks, another secure website, a secure virtual workspace or otherwise) which is different from this paragraph 11F, this paragraph 11F shall not be amended thereby and, as between such Purchaser or such holder and the Issuers, this paragraph 11F shall supersede any such other confidentiality undertaking.

​

address as such Purchaser shall have specified to the Company in writing, (ii) if to any other holder of any Note, addressed to such other holder at such address as such other holder shall have specified to the Company in writing or, if any such other holder shall not have so specified an address to the Company, then addressed to such other holder in care of the last holder of such Note which shall have so specified an address to the Company, and (iii) if to any Issuer, addressed to it c/o the Company at 605 Highway 169 North, Suite 400, Minneapolis, Minnesota 55441, Attention: Chief Financial Officer, or at such other address as the Company shall have specified to the holder of each Note in writing; provided, however, that any such communication to any Issuer may also, at the option of the holder of any Note, be delivered by any other means either to any Issuer at its address specified above or to any officer of any Issuer. To the extent any Purchaser or other holder of a Note has provided the same address for delivery of information or notices under Agreement as another Purchaser or other holder of a Note, then only one set of copies is required for both such Persons.

​

IRREVOCABLY ACCEPTS, UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS WITH RESPECT TO ANY SUCH ACTION OR PROCEEDING. EACH ISSUER FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO IT AT ITS ADDRESS PROVIDED IN PARAGRAPH 11J OR TO CT CORPORATION SYSTEM AT 208 SOUTH LASALLE STREET, CHICAGO, ILLINOIS 60604, SUCH SERVICE TO BECOME EFFECTIVE UPON RECEIPT. EACH ISSUER AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN ANY OTHER JURISDICTION BY SUIT ON SUCH JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING HEREIN SHALL AFFECT THE RIGHT OF ANY HOLDER OF A NOTE TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST ANY ISSUER IN ANY OTHER JURISDICTION. EACH ISSUER HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE OTHER TRANSACTION DOCUMENTS BROUGHT IN ANY OF THE AFORESAID COURTS AND HEREBY FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT THAT ANY ISSUER HAS OR MAY HEREAFTER ACQUIRE IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OF NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION, EXECUTION OR OTHERWISE WITH RESPECT TO ITSELF OR ITS PROPERTY), EACH ISSUER HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS AGREEMENT OR THE OTHER TRANSACTION DOCUMENTS. EACH ISSUER AND EACH PURCHASER HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER TRANSACTION DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREBY (INCLUDING IN CONNECTION WITH ANY CLAIMS OR DISPUTES RELATING THERETO, WHETHER SOUNDING IN CONTRACT OR TORT).

​

this Agreement and the other Transaction Documents, that such party has discussed this Agreement and the other Transaction Documents with its counsel and that any and all issues with respect to this Agreement and the other Transaction Documents have been resolved as set forth herein and therein. No provision of this Agreement or any other Transaction Document shall be construed against or interpreted to the disadvantage of any party hereto by any court or other governmental or judicial authority by reason of such party having or being deemed to have structured, drafted or dictated such provision. Time is of the essence in the performance of this Agreement and the other Transaction Documents.

​

electronic medium and (b) display any Issuer’s corporate logo in conjunction with any such reference.

(i)The obligations of the Issuers under this Agreement, the Notes and the other Transaction Documents are joint and several primary obligations of each Issuer regardless of which Issuer actually receives the proceeds of any Notes or the manner in which the Issuers, any Purchaser or any holder thereof accounts for such Notes on its books and records. Each Issuer agrees that it is receiving or will receive a direct pecuniary benefit for each Note issued hereunder.

(ii)Each Issuer hereby waives, to the fullest extent permitted by law:

(a)notice of the creation, renewal or accrual of any liability of an Issuer, present or future, or of the reliance of such holder of Notes upon this Agreement (it being understood that every Debt, liability and obligation described in this Agreement, the Notes or the other Transaction Documents shall conclusively be presumed to have been created, contracted or incurred in reliance upon the execution of this Agreement, the Notes and the other Transaction Documents);

(b)demand of payment by any holder of Notes from an Issuer or any other Person indebted in any manner on or for any of the Debt, liabilities or obligations hereby guaranteed; and

(c)presentment for the payment by any holder of Notes or any other Person of the Notes or any other instrument, protest thereof and notice of its dishonor to any party thereto and to such Issuer.

The obligations of each Issuer under this Agreement, the Notes and the other Transaction Documents and the rights of any holder of Notes to enforce such obligations by any proceedings, whether by action at law, suit in equity or otherwise, shall not be subject to any reduction, limitation, impairment or termination (other than by indefeasible payment in full in cash of the Notes and the obligations of the Issuers under this Agreement and the other Transaction Documents), whether by reason of any claim of any character whatsoever or otherwise and shall not be subject to any defense, set-off, counterclaim (other than any compulsory counterclaim), recoupment or termination whatsoever.

(iii)Except as otherwise expressly provided in this Agreement, the obligations of the Issuers hereunder and under the Notes and the other Transaction Documents shall be binding upon the Issuers and their successors and assigns, and shall remain in full force and effect until the entire principal, interest and premium, if any, on the Notes and all other sums due under this Agreement shall have been paid and such obligations shall not be affected, modified or impaired upon the happening from time to time of any event, including without limitation any of the following, whether or not with notice to or the consent of the Issuers:

(a)the genuineness, validity, regularity or enforceability of the Notes, this Agreement and the other Transaction Documents or any other agreement or any of the terms of any thereof, the continuance of any obligation on the part of any Issuer or any

​

other Person on or in respect of the Notes or under this Agreement, the other Transaction Documents or any other agreement or the power or authority or the lack of power or authority of any Issuer to issue the Notes or any Issuer to execute and deliver this Agreement or any other agreement or to perform any of its obligations hereunder or the existence or continuance of any Issuer or any other Person as a legal entity; or

(b)any default, failure or delay, willful or otherwise, in the performance by an Issuer or any other Person of any obligations of any kind or character whatsoever under the Notes, this Agreement, the other Transaction Documents or any other agreement; or

(c)any creditors’ rights, bankruptcy, receivership or other insolvency proceeding of any Issuer or any other Person or in respect of the property of an Issuer or any other Person or any merger, consolidation, reorganization, dissolution, liquidation, the sale of all or substantially all of the assets of or winding up of an Issuer or any other Person; or

(d)impossibility or illegality of performance on the part of any Issuer or any other Person of its obligations under the Notes, this Agreement, the other Transaction Documents or any other agreements; or

(e)in respect of an Issuer or any other Person, any change of circumstances, whether or not foreseen or foreseeable, whether or not imputable to an Issuer or any other Person, or other impossibility of performance through fire, explosion, accident, labor disturbance, floods, droughts, embargoes, wars (whether or not declared), civil commotion, acts of God or the public enemy, delays or failure of suppliers or carriers, inability to obtain materials, action of any Federal or state regulatory body or agency, change of law or any other causes affecting performance, or any other force majeure, whether or not beyond the control of an Issuer or any other Person and whether or not of the kind hereinbefore specified; or

(f)any attachment, claim, demand, charge, Lien, order, process, encumbrance or any other happening or event or reason, similar or dissimilar to the foregoing, or any withholding or diminution at the source, by reason of any taxes, assessments, expenses, Debt, obligations or liabilities of any character, foreseen or unforeseen, and whether or not valid, incurred by or against an Issuer or any other Person or any claims, demands, charges or Liens of any nature, foreseen or unforeseen, incurred by an Issuer or any other Person, or against any sums payable in respect of the Notes, under this Agreement or any other Transaction Document, so that such sums would be rendered inadequate or would be unavailable to make the payments herein provided; or

(g)any order, judgment, decree, ruling or regulation (whether or not valid) of any court of any nation or of any political subdivision thereof or any body, agency, department, official or administrative or regulatory agency of any thereof or any other action, happening, event or reason whatsoever which shall delay, interfere with, hinder or prevent, or in any way adversely affect, the performance by an Issuer or any other Person of its respective obligations under or in respect of the Notes, this Agreement or any other agreement; or

​

(h)the failure of any Issuer to receive any benefit from or as a result of its execution, delivery and performance of this Agreement; or

(i)any failure or lack of diligence in collection or protection, failure in presentment or demand for payment, protest, notice of protest, notice of default and of nonpayment, any failure to give notice to any Issuer of failure of an Issuer or any other Person to keep and perform any obligation, covenant or agreement under the terms of the Notes, this Agreement, any other Transaction Document or any other agreement or failure to resort for payment to an Issuer or to any other Person or to any other Agreement or to any property, security, Liens or other rights or remedies; or

(j)the acceptance of any additional security or other agreement, the advance of additional money to an Issuer or any other Person, the renewal or extension of the Notes or amendments, modifications, consents or waivers with respect to the Notes, this Agreement, any other Transaction Document or any other agreement, or the sale, release, substitution or exchange of any security for the Notes; or

(k)any merger or consolidation of an Issuer or any other Person into or with any other Person or any sale, lease, transfer or other disposition of any of the assets of an Issuer or any other Person to any other Person, or any change in the ownership of any shares of an Issuer or any other Person or any release of any issuer; or  ‘

(l)any defense whatsoever that: (i) an Issuer or any other Person might have to the payment of the Notes (principal, Yield-Maintenance Amount, if any, or interest), other than indefeasible payment thereof in Federal or other immediately available funds, or (ii) an Issuer or any other Person might have to the performance or observance of any of the provisions of the Notes, this Agreement, any other Transaction Document or any other agreement, whether through the satisfaction or purported satisfaction by an Issuer or any other Person of its debts due to any cause such as bankruptcy, insolvency, receivership, merger, consolidation, reorganization, dissolution, liquidation, winding-up or otherwise, other than the defense of indefeasible payment in full in cash of the Notes; or

(m)any act or failure to act with regard to the Notes, this Agreement, any other Transaction Document or any other agreement or anything which might vary the risk of any Issuer or any other Person; or

(n)any other circumstance which might otherwise constitute a defense available to, or a discharge of, any Issuer or any other Person in respect of the obligations of any Issuer or other Person under this Agreement or any other agreement, other than the defense of indefeasible payment in full in cash of the Notes;

provided that the specific enumeration of the above-mentioned acts, failures or omissions shall not be deemed to exclude any other acts, failures or omissions, though not specifically mentioned above, it being the purpose and intent of this Agreement and the Notes and the parties hereto that the obligations of each Issuer shall be absolute and unconditional and shall not be discharged, impaired or varied except by the indefeasible payment in full in cash of the principal of, premium,

​

if any, and interest on the Notes in accordance with their respective terms whenever the same shall become due and payable as in the Notes provided and all other sums due and payable under this Agreement, at the place specified in and all in the manner and with the effect provided in the Notes and this Agreement, as each may be amended or modified from time to time. Without limiting the foregoing, it is understood that repeated and successive demands may be made and recoveries may be had hereunder as and when, from time to time, an Issuer shall default under or in respect of the terms of the Notes or this Agreement and that notwithstanding recovery hereunder for or in respect of any given default or defaults by an Issuer under the Notes, this Agreement or any other Transaction Document shall remain in full force and effect and shall apply to each and every subsequent default.

(iv)To the extent of any payments made under this Agreement or any Note, each Issuer making such payment shall have a right of contribution from the other Issuer, but such Issuer covenants and agrees that such right of contribution shall be subordinate in right of payment to the rights of the holder of Notes for which full payment has not been made or provided for and, to that end, such Issuer agrees not to claim or enforce any such right of contribution unless and until all of the Notes and all other sums due and payable under this Agreement and the Notes have been fully and irrevocably paid and discharged.

(v)Each Issuer agrees that to the extent an Issuer or any other Person makes any payment on any Note, which payment or any part thereof is subsequently invalidated, voided, declared to be fraudulent or preferential, set aside, recovered, rescinded or is required to be retained by or repaid to a trustee, receiver, or any other Person under any bankruptcy code, common law, or equitable cause, then and to the extent of such payment, the obligation or the part thereof intended to be satisfied shall be revived and continued in full force and effect with respect to the Issuers’ obligations hereunder, as if said payment had not been made. The liability of the Issuers hereunder and under the Notes shall not be reduced or discharged, in whole or in part, by any payment to any holder of a Note from any source that is thereafter paid, returned or refunded in whole or in part by reason of the assertion of a claim of any kind relating thereto, including, but not limited to, any claim for breach of contract, breach of warranty, preference, illegality, invalidity, or fraud asserted by any account debtor or by any other Person.

(vi)No holder of a Note shall be under any obligation: (a) to marshal any assets in favor of the Issuers or in payment of any or all of the liabilities of any Issuer under or in respect of the Notes or the obligations of the Companies hereunder or (b) to pursue any other remedy that the Issuers may or may not be able to pursue themselves and that may lighten the Issuers’ burden, any right to which each Issuer hereby expressly waives.

[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT
BLANK. SIGNATURES ON THE FOLLOWING PAGE.]

​

​

​

Very truly yours,

​

WINMARK CORPORATION

​

​

​

​

WIRTH BUSINESS CREDIT, INC.

​

​

​

​

WINMARK CAPITAL CORPORATION

​

​

​

​

GROW BIZ GAMES, INC.

​

​

​

​

​

​

​

​

The foregoing Agreement is

hereby accepted as of the

date first above written.

​

PGIM, Inc.

​

​

​

​

​

​

​

​

​

​

​

​

‌EXHIBIT A

​

​

[FORM OF SHELF NOTE]

WINMARK CORPORATION
WIRTH BUSINESS CREDIT, INC.
WINMARK CAPITAL CORPORATION
GROW BIZ GAMES, INC.

[____]% Senior Secured Note, Series ___, Due [__________, ____]

​

No. _____‌[Date]

PPN:

ORIGINAL PRINCIPAL AMOUNT:

ORIGINAL ISSUE DATE:

INTEREST RATE:

INTEREST PAYMENT DATES:

FINAL MATURITY DATE:

PRINCIPAL PREPAYMENT DATES AND AMOUNTS:

​

FOR VALUE RECEIVED, the undersigned, WINMARK CORPORATION, a corporation organized and existing under the laws of the State of Minnesota (herein called the “Company”), Wirth Business Credit, Inc., a corporation organized and existing under the laws of the State of Minnesota (herein called “Wirth”), Winmark Capital Corporation, a corporation organized and existing under the laws of the State of Minnesota (herein called “Winmark Capital”), and Grow Biz Games, Inc., a corporation organized and existing under the laws of the State of Minnesota (“Grow Biz”; the Company, Wirth, Winmark Capital and Grow Biz being collectively called the “Issuers”), hereby jointly and severally promise to pay to _______________________________, or registered assigns, the principal sum of _______________________________ DOLLARS on [on the Final Maturity Date specified above (or so much thereof as shall not have been prepaid),] [, payable on the Principal Prepayment Dates and in the amounts specified above, and on the Final Maturity Date specified above in an amount equal to the unpaid balance of the principal hereof,], with interest (computed on the basis of a 360-day year of twelve 30-day months) (a) on the unpaid balance thereof at the Interest Rate per annum specified above, payable on each Interest Payment Date specified above and on the Final Maturity Date specified above, commencing with the Interest Payment Date next succeeding the date hereof, until the principal hereof shall have become due and payable, and (b) (i) on any overdue payment (including any overdue prepayment) of principal, any overdue payment of Yield-Maintenance Amount, any overdue payment of interest (to the extent permitted by applicable law), and (ii) during any period when an Event of Default shall be in existence, at the election of the Required Holder(s), on the entire principal amount hereof, at a rate per annum from time to time equal to the Default Rate, payable quarterly as aforesaid (or, at the option of the registered holder hereof, on demand). The “Default Rate” shall mean a rate per annum from time to time equal to the lesser of (i) the maximum rate permitted by applicable law, and (ii) the greater of (a) [___% [2% over the coupon rate]] or (b) 2.00% over the rate of interest publicly announced by JPMorgan Chase Bank, National Association, from time to time in New York City as its Prime Rate.  

​

Payments of principal of, interest on and any Yield-Maintenance Amount payable with respect to this Note are to be made at the main office of JPMorgan Chase Bank in New York City or at such other place as the holder hereof shall designate to the Company in writing, in lawful money of the United States of America.  

This Note is one of a series of Senior Secured Notes (herein called the “Notes”) issued pursuant to a Private Shelf Agreement, dated as of April 12, 2022 (herein called the “Agreement”), among the Issuers and the respective Purchasers named therein and is entitled to the benefits thereof.

This Note is a registered Note and, as provided in the Agreement, upon surrender of this Note for registration of transfer, duly endorsed, or accompanied by a written instrument of transfer duly executed, by the registered holder hereof or such holder’s attorney duly authorized in writing, a new Note for a like principal amount will be issued to, and registered in the name of, the transferee. Prior to due presentment for registration of transfer, the Issuers may treat the person in whose name this Note is registered as the owner hereof for the purpose of receiving payment and for all other purposes, and the Issuers shall not be affected by any notice to the contrary.

The Issuers jointly and severally agrees to make required prepayments of principal on the dates and in the amounts specified in the Agreement. This Note is also subject to optional prepayment, in whole or from time to time in part, on the terms specified in the Agreement, but not otherwise.

This Note is secured by, and entitled to the benefits of, the Collateral Documents. Reference is made to the Collateral Documents for a statement concerning the terms and conditions governing the collateral security for the obligations of the Issuers hereunder.

Each Issuer and any and all endorsers, guarantors and sureties severally waive demand, presentment for payment, notice of dishonor or default, notice of intent to accelerate, notice of acceleration (except to the extent required in the Agreement), protest and diligence in collecting in connection with this Note, whether now or hereafter required by applicable law.

In case an Event of Default shall occur and be continuing, the principal of this Note may be declared or otherwise become due and payable in the manner and with the effect provided in the Agreement.

Capitalized terms used herein which are defined in the Agreement and not otherwise defined herein shall have the meanings as defined in the Agreement.

​

​

THIS NOTE IS INTENDED TO BE PERFORMED IN THE STATE OF ILLINOIS AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAW OF SUCH STATE (EXCLUDING ANY CONFLICTS OF LAW RULES WHICH WOULD OTHERWISE CAUSE THIS NOTE TO BE CONSTRUED OR ENFORCED IN ACCORDANCE WITH THE LAWS OF ANY OTHER JURISDICTION).

WINMARK CORPORATION

​

​

By:‌

Name: ‌

Title: ‌

​

​

WIRTH BUSINESS CREDIT, INC.

​

​

By:‌

Name: ‌

Title: ‌

​

​

WINMARK CAPITAL CORPORATION

​

​

By:‌

Name: ‌

Title: ‌

​

​

GROW BIZ GAMES, INC.