10-Q

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 10-Q

xQUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934

For the quarter ended June 26, 2010

or

o  TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934

For the transition period from                  to                

Commission File Number: 000-22012

WINMARK CORPORATION

(Exact name of registrant as specified in its charter)

Minnesota	41-1622691
(State or other jurisdiction of incorporation or organization)	(I.R.S. Employer Identification No.)

605 Highway 169 North, Suite 400, Minneapolis, MN	55441
(Address of principal executive offices)	(Zip Code)

(763) 520-8500

(Registrant’s telephone number, including area code)

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days:  Yes x No o

Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files).  Yes o No o

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company.  See the definitions of “large accelerated filer,” “accelerated filer,” and “smaller reporting company” in Rule 12b-2 of the Exchange Act:

Large accelerated filer o	Accelerated filer o
Non-accelerated filer o	Smaller reporting company x
(Do not check if a smaller reporting company)

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act:  Yes o No x

Common stock, no par value, 5,011,862 shares outstanding as of July 16, 2010.

WINMARK CORPORATION AND SUBSIDIARIES

INDEX

		PAGE
PART I.	FINANCIAL INFORMATION
Item 1.	Financial Statements (Unaudited)
	CONSOLIDATED CONDENSED BALANCE SHEETS: June 26, 2010 and December 26, 2009	3
	CONSOLIDATED CONDENSED STATEMENTS OF OPERATIONS: Three Months Ended June 26, 2010 and June 27, 2009 Six Months Ended June 26, 2010 and June 27, 2009	4
	CONSOLIDATED CONDENSED STATEMENTS OF CASH FLOWS: Six Months Ended June 26, 2010 and June 27, 2009	5
	NOTES TO CONSOLIDATED CONDENSED FINANCIAL STATEMENTS	6 – 13
Item 2.	Management’s Discussion and Analysis of Financial Condition and Results of Operations	13 – 22
Item 3.	Quantitative and Qualitative Disclosures About Market Risk	22
Item 4T.	Controls and Procedures	23
PART II.	OTHER INFORMATION	23
Item 1.	Legal Proceedings	23
Item 1A.	Risk Factors	23
Item 2.	Unregistered Sales of Equity Securities and Use of Proceeds	24
Item 3.	Defaults Upon Senior Securities	24
Item 4.	Reserved	24
Item 5.	Other Information	24
Item 6.	Exhibits	24 – 25
	SIGNATURES	26

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PART I.FINANCIAL INFORMATION

ITEM 1:   Financial Statements

WINMARK CORPORATION AND SUBSIDIARIES

CONSOLIDATED CONDENSED BALANCE SHEETS

	June 26, 2010 (Unaudited)			December 26, 2009 (Audited)
ASSETS
Current Assets:
Cash and cash equivalents	$	10,635,800		$	9,490,800
Marketable securities	609,600			1,274,000
Current investments	2,000,000			2,000,000
Receivables, less allowance for doubtful accounts of $19,400 and $35,700	1,633,700			1,761,100
Net investment in leases - current	14,733,200			17,575,900
Income tax receivable	183,400			—
Inventories	138,500			111,400
Prepaid expenses	325,700			398,800
Total current assets	30,259,900			32,612,000
Net investment in leases - long-term	18,664,600			19,423,700
Long-term investments	2,110,600			2,232,900
Long-term receivables, net	9,100			14,900
Property and equipment, net	1,754,500			1,843,500
Other assets	677,500			677,500
	$	53,476,200		$	56,804,500
LIABILITIES AND SHAREHOLDERS’ EQUITY
Current Liabilities:
Current line of credit	$	3,763,300		$	3,983,100
Current renewable unsecured subordinated notes	8,706,800			9,166,900
Accounts payable	1,481,200			1,415,200
Income tax payable	—			183,500
Accrued liabilities	2,556,400			1,794,100
Current discounted lease rentals	603,200			972,600
Current rents received in advance	329,800			294,400
Current deferred revenue	1,257,800			1,188,800
Deferred income taxes	1,057,700			1,057,700
Total current liabilities	19,756,200			20,056,300
Long-term line of credit	3,550,600			5,298,900
Long-term renewable unsecured subordinated notes	9,896,000			12,058,700
Long-term discounted lease rentals	259,000			507,600
Long-term rents received in advance	982,000			1,332,000
Long-term deferred revenue	761,600			709,500
Other long-term liabilities	1,239,400			1,298,400
Deferred income taxes	214,400			214,400
Shareholders’ Equity:
Common stock, no par, 10,000,000 shares authorized, 5,011,862 and 5,125,025 shares issued and outstanding	—			—
Accumulated other comprehensive (loss) income	(73,600		)	9,600
Retained earnings	16,890,600			15,319,100
Total shareholders’ equity	16,817,000			15,328,700
	$	53,476,200		$	56,804,500

The accompanying notes are an integral part of these financial statements.

3

WINMARK CORPORATION AND SUBSIDIARIES

CONSOLIDATED CONDENSED STATEMENTS OF OPERATIONS

(Unaudited)

	Three Months Ended						Six Months Ended
	June 26, 2010			June 27, 2009			June 26, 2010			June 27, 2009
REVENUE:
Royalties	$	6,368,300		$	5,607,900		$	12,731,800		$	11,241,400
Leasing income	2,345,800			2,143,100			4,870,700			4,844,800
Merchandise sales	550,500			679,300			1,045,200			1,304,700
Franchise fees	305,000			235,000			528,500			385,000
Other	309,500			172,800			545,700			312,200
Total revenue	9,879,100			8,838,100			19,721,900			18,088,100
COST OF MERCHANDISE SOLD	520,200			651,100			991,200			1,247,000
LEASING EXPENSE	439,300			512,800			986,600			1,195,300
PROVISION FOR CREDIT LOSSES	(160,200		)	604,200			11,900			1,023,900
SELLING, GENERAL AND ADMINISTRATIVE EXPENSES	4,877,200			4,830,600			9,733,100			9,713,100
Income from operations	4,202,600			2,239,400			7,999,100			4,908,800
LOSS FROM EQUITY INVESTMENTS	(102,000		)	(600		)	(122,200		)	(4,100		)
INTEREST EXPENSE	(273,100		)	(341,400		)	(561,300		)	(692,500		)
INTEREST AND OTHER INCOME	103,000			111,600			280,700			172,700
Income before income taxes	3,930,500			2,009,000			7,596,300			4,384,900
PROVISION FOR INCOME TAXES	(1,591,800		)	(813,700		)	(3,076,500		)	(1,775,900		)
NET INCOME	$	2,338,700		$	1,195,300		$	4,519,800		$	2,609,000
EARNINGS PER SHARE — BASIC	$	.47		$	.22		$	.89		$	.49
EARNINGS PER SHARE — DILUTED	$	.45		$	.22		$	.87		$	.49
WEIGHTED AVERAGE SHARES OUTSTANDING — BASIC	5,025,944			5,328,831			5,077,179			5,362,489
WEIGHTED AVERAGE SHARES OUTSTANDING — DILUTED	5,189,925			5,343,532			5,193,154			5,370,900

The accompanying notes are an integral part of these financial statements.

4

WINMARK CORPORATION AND SUBSIDIARIES

CONSOLIDATED CONDENSED STATEMENTS OF CASH FLOWS

(Unaudited)

	Six Months Ended
	June 26, 2010			June 27, 2009
OPERATING ACTIVITIES:
Net income	$	4,519,800		$	2,609,000
Adjustments to reconcile net income to net cash provided by operating activities:
Depreciation	238,000			278,600
Provision for credit losses	11,900			1,023,900
Compensation expense related to stock options	343,200			371,500
Gain on sale of marketable securities	(75,800		)	(800		)
Gain from disposal of property and equipment	—			(1,200		)
Loss from equity investments	122,200			4,100
Deferred initial direct costs, net of amortization	(123,100		)	(295,500		)
Amortization of deferred initial direct costs	400,000			452,400
Change in operating assets and liabilities:
Receivables	133,200			361,900
Income tax receivable/payable	(314,300		)	315,300
Inventories	(27,100		)	68,700
Prepaid expenses	73,100			444,700
Deferred income taxes	—			1,396,700
Accounts payable	66,000			279,500
Accrued and other liabilities	703,300			(289,900		)
Additions to advance and security deposits	413,300			38,900
Deferred revenue	121,100			231,200
Net cash provided by operating activities	6,604,800			7,289,000
INVESTING ACTIVITIES:
Proceeds from sale of marketable securities	1,081,300			5,300
Purchase of marketable securities	(476,900		)	(428,500		)
Proceeds from sale of property and equipment	—			1,800
Purchases of property and equipment	(149,000		)	(735,700		)
Purchase of equipment for lease contracts	(8,544,900		)	(8,690,300		)
Principal collections on lease receivables	10,437,400			9,956,800
Net cash provided by investing activities	2,347,900			109,400
FINANCING ACTIVITIES:
Payments on line of credit	(1,968,100		)	(2,383,200		)
Proceeds from issuance of subordinated notes	146,800			4,111,900
Payments on subordinated notes	(2,769,600		)	(1,559,900		)
Repurchases of common stock	(3,930,100		)	(1,488,500		)
Proceeds from exercises of stock options	670,800			50,000
Dividends paid	(100,600		)	—
Proceeds from discounted lease rentals	74,600			428,100
Tax benefits on exercised options	68,500			5,500
Net cash (used for) financing activities	(7,807,700		)	(836,100		)
INCREASE IN CASH AND CASH EQUIVALENTS	1,145,000			6,562,300
Cash and cash equivalents, beginning of period	9,490,800			2,140,000
Cash and cash equivalents, end of period	$	10,635,800		$	8,702,300
SUPPLEMENTAL DISCLOSURES:
Cash paid for interest	$	1,216,400		$	1,377,700
Cash paid for income taxes	$	3,443,400		$	58,600
Non-cash landlord leasehold improvements	$	—		$	1,072,400

The accompanying notes are an integral part of these financial statements

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WINMARK CORPORATION AND SUBSIDIARIES

NOTES TO CONSOLIDATED CONDENSED FINANCIAL STATEMENTS

1.Management’s Interim Financial Statement Representation:

The accompanying consolidated condensed financial statements have been prepared by Winmark Corporation and subsidiaries (the Company), without audit, pursuant to the rules and regulations of the Securities and Exchange Commission.  The Company has a 52/53 week year which ends on the last Saturday in December.  The information in the consolidated condensed financial statements includes normal recurring adjustments and reflects all adjustments which are, in the opinion of management, necessary for a fair presentation of such financial statements.  The consolidated condensed financial statements and notes are presented in accordance with accounting principles generally accepted in the United States for interim financial information and with the instructions for Form 10-Q, and therefore do not contain certain information included in the Company’s annual consolidated financial statements and notes.  This report should be read in conjunction with the audited financial statements and the notes thereto included in the Company’s latest Annual Report on Form 10-K.

Revenues and operating results for the six months ended June 26, 2010 are not necessarily indicative of the results to be expected for the full year.

Reclassifications

Certain reclassifications of previously reported amounts have been made to conform to the current year presentation.  Such reclassifications did not impact net income or shareholders’ equity as previously reported.

2.Organization and Business:

The Company offers licenses to operate franchises using the service marks Play It Again Sports®, Plato’s Closet®, Once Upon A Child®, Music Go Round®, and Wirth Business Credit®.  In addition, the Company sells inventory to its Play It Again Sports franchisees through its buying group.  The Company also operates both small-ticket and middle market equipment leasing businesses under the Wirth Business Credit® and Winmark Capital® marks.

3.Fair Value Measurements

The Company defines fair value as the price that would be received for an asset or paid to transfer a liability (an exit price) in the principal or most advantageous market for the asset or liability in an orderly transaction between market participants on the measurement date.  The Company uses three levels of inputs to measure fair value:

·Level 1 — quoted prices in active markets for identical assets and liabilities.

·Level 2 — observable inputs other than quoted prices in active markets for identical assets and liabilities.

·Level 3 — unobservable inputs in which there is little or no market data available, which require the reporting entity to develop its own assumptions.

The Company’s marketable securities are valued based on Level 1 inputs using quoted prices.

Due to their nature, the carrying value of cash, receivables, payables and debt obligations approximates fair value.

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4.Investments:

Marketable Securities

The following is a summary of marketable securities classified as available-for-sale:

	June 26, 2010				December 26, 2009
	Cost		Fair Value		Cost		Fair Value
Equity securities	$	729,800	$	609,600	$	1,258,500	$	1,274,500

The Company’s unrealized gains and losses for marketable securities classified as available-for-sale securities in accumulated other comprehensive (loss) income are as follows:

	June 26, 2010			December 26, 2009
Unrealized gains	$	4,800		$	77,700
Unrealized losses	(125,000		)	(62,200		)
Net unrealized (losses) gains	$	(120,200	)	$	15,500

The Company’s realized gains and losses recognized on sales of available-for-sale marketable securities are as follows:

	Three Months Ended				Six Months Ended
	June 26, 2010		June 27, 2009		June 26, 2010		June 27, 2009
Realized gains	$	2,100	$	800	$	75,800	$	800
Realized losses	—		—		—		—
Net realized gains (losses)	$	2,100	$	800	$	75,800	$	800

Other Long-Term Investments

The Company has an investment in Tomsten, Inc. (“Tomsten”), the parent company of “Archiver’s” retail chain.  Archiver’s is a retail concept created to help people preserve and enjoy their photographs.  The Company has invested a total of $7.5 million in the purchase of common stock of Tomsten.  The Company’s investment currently represents 18.3% of the outstanding common stock of Tomsten.  As of June 26, 2010, $0.2 million of the Company’s investment, with a current carrying cost of $2.1 million, is attributable to goodwill.  The amount of goodwill was determined by calculating the difference between the Company’s net investment in Tomsten less its pro rata share of Tomsten’s net worth.

In December 2009, the Company began providing management services to Tomsten.  Management fees received by the Company are recorded as other revenue.

The Company has a $2.0 million investment in senior subordinated promissory notes with warrants in BridgeFunds Limited (“BridgeFunds”).  BridgeFunds advances funds to claimants involved in civil litigation to cover litigation expenses.  Monthly prepayment of the principal of such notes in an amount equal to Available Cash Flow (as defined within the agreements governing the notes) is required, and the maturity date of the notes is September 30, 2010.  During the six months ended June 26, 2010, the Company did not receive any payments of principal or interest on the notes.  As of June 26, 2010, the $2.0 million investment balance is classified as current based on expected payments from Available Cash Flow, and $0.2 million of related interest receivable is included in current receivables.

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5.  Investment in Leasing Operations:

Investment in leasing operations consists of the following:

	June 26, 2010			December 26, 2009
Minimum lease payments receivable	$	33,569,600		$	40,868,500
Estimated residual value of equipment	2,890,800			2,954,400
Unearned lease income net of initial direct costs deferred	(5,219,500		)	(6,412,900		)
Security deposits	(2,656,100		)	(1,928,200		)
Allowance for credit losses	(1,146,400		)	(1,339,400		)
Equipment installed on leases not yet commenced	5,959,400			2,857,200
Total net investment in leases	33,397,800			36,999,600
Less: net investment in leases — current	(14,733,200		)	(17,575,900		)
Net investment in leases — long-term	$	18,664,600		$	19,423,700

The Company had $204,900 and $1,232,900 of write-offs, net of recoveries, related to the lease portfolio during the first six months of 2010 and 2009, respectively.

As of June 26, 2010, no customer accounted for more than 10% of the Company’s total assets.

Minimum lease payments receivable under lease contracts and the amortization of unearned lease income, net of initial direct costs deferred, is as follows for the remainder of fiscal 2010 and the full fiscal years thereafter as of June 26, 2010:

Fiscal Year	Minimum Lease Payments Receivable		Income Amortization
2010	$	10,884,400	$	2,272,100
2011	14,545,400		2,289,500
2012	6,947,200		592,500
2013	1,085,900		57,400
2014	95,800		7,600
Thereafter	10,900		400
	$	33,569,600	$	5,219,500

6.  Accounting for Stock-Based Compensation:

The Company recognizes the cost of all share-based payments to employees, including grants of employee stock options, in the consolidated financial statements based on the grant date fair value of those awards.  This cost is recognized over the period for which an employee is required to provide service in exchange for the award.  The benefits associated with tax deductions in excess of recognized compensation expense are reported as a financing cash flow rather than as an operating cash flow.  Compensation expense of $343,200 and $371,500 relating to the vested portion of the fair value of stock options granted was expensed to “Selling, General and Administrative Expenses” in the first six months of 2010 and 2009, respectively.

8

The Company estimates the fair value of options granted using the Black-Scholes option valuation model.  The Company estimates the volatility of its common stock at the date of grant based on its historical volatility rate.  The Company’s decision to use historical volatility was based upon the lack of actively traded options on its common stock.  The Company estimates the expected term based upon historical option exercises.  The risk-free interest rate assumption is based on observed interest rates for the volatility period.  The Company uses historical data to estimate pre-vesting option forfeitures and record share-based compensation expense only for those awards that are expected to vest.  For options granted, the Company amortizes the fair value on a straight-line basis.  All options are amortized over the vesting periods.

The fair value of each option granted in 2010 and 2009 was estimated on the date of the grant using the Black-Scholes option pricing model with the following assumptions:

Year Granted	Option Fair Value		Risk Free Interest Rate		Expected Life (Years)	Expected Volatility		Dividend Yield
2010	$	9.80	2.43	%	6	28.3	%	.26	%
2009	$	4.25	2.92	%	6	27.1	%	none

7.New Accounting Pronouncements:

In June 2009, the Financial Accounting Standards Board (“FASB”) amended its guidance on accounting for variable interest entities (“VIEs”), effective for fiscal years beginning after November 15, 2009.  Among other things, the new guidance requires a more qualitative than quantitative approach to identifying a controlling financial interest in a VIE, requires ongoing assessment of whether an entity is a VIE and whether an interest in a VIE makes the holder the primary beneficiary of a VIE, and enhances disclosures about an enterprise’s involvement with a VIE.  The Company adopted the new guidance on December 27, 2009 and such adoption has not impacted the Company’s financial condition or results of operations.

8.Earnings Per Share:

The Company calculates earnings per share by dividing net income by the weighted average number of shares of common stock outstanding to arrive at the Earnings Per Share - Basic.  The Company calculates Earnings Per Share - Diluted by dividing net income by the weighted average number of shares of common stock and dilutive stock equivalents from the exercise of stock options using the treasury stock method.  The weighted average diluted outstanding shares is computed by adding the weighted average basic shares outstanding with the dilutive effect of stock options equivalent to 163,981 shares and 14,701 shares for the three months and 115,975 shares and 8,411 shares for the six months ended June 26, 2010 and June 27, 2009, respectively.

Options totaling 18,752 and 311,354 shares for the three months and 35,381 and 424,191 shares for the six months ended June 26, 2010 and June 27, 2009, respectively, were outstanding but were not included in the calculation of Earnings Per Share — Diluted because their exercise prices were greater than the average market price of the common shares and, therefore, including the options in the denominator would be anti-dilutive.

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9.Shareholders’ Equity:

Repurchase of Common Stock

Under the board of directors’ authorization, as of June 26, 2010, the Company has the ability to repurchase up to 4,500,000 shares of its common stock, of which all but 97,389 shares have been repurchased.  Repurchases may be made from time to time at prevailing prices, subject to certain restrictions on volume, pricing and timing.  Since inception of stock repurchase activities in November 1995 through June 26, 2010, the Company has repurchased 4,402,611 shares of its stock at an average price of $14.68 per share.  In the first six months of 2010, the Company repurchased 163,567 shares for an aggregate purchase price of $3,930,100 or $24.03 per share.  These repurchase transactions reduced the dollar amount of common stock on the consolidated balance sheet to zero, with the remainder recorded to retained earnings.

Stock Option Plans

The Company has authorized up to 750,000 shares of common stock be reserved for granting either nonqualified or incentive stock options to officers and key employees under the Company’s 2001 Stock Option Plan (the “2001 Plan”).

At the April 28, 2010 Annual Shareholders Meeting, the Company’s shareholders approved a new stock option plan, the 2010 Stock Option Plan (the “2010 Plan”).  The 2010 Plan (as described more completely in the Company’s definitive Proxy Statement filed with the United States Securities and Exchange Commission on March 11, 2010) provides for the issuance of up to 250,000 shares of common stock in the form of either nonqualified or incentive stock option grants.  Participants in the 2010 Plan may include employees, officers, directors, consultants and advisors of the Company.  As of June 26, 2010, no options had been granted under the 2010 Plan.

The Company also sponsors a Stock Option Plan for Nonemployee Directors (the “Nonemployee Directors Plan”) and has reserved a total of 300,000 shares for issuance to directors of the Company who are not employees.

Stock option activity under the 2001 Plan and Nonemployee Directors Plan as of June 26, 2010 was as follows:

	Number of Shares		Weighted Average Exercise Price		Weighted Average Remaining Contractual Life (years)	Intrinsic Value
Outstanding at December 26, 2009	614,650		$	18.08	6.93	$	2,524,800
Granted	48,750		31.19
Exercised	(50,404	)	13.31
Forfeited	(4,376	)	15.98
Outstanding at June 26, 2010	608,620		$	19.54	7.01	$	8,937,700
Exercisable at June 26, 2010	310,158		$	19.25	5.66	$	4,644,700

All unexercised options at June 26, 2010 have an exercise price equal to the fair market value on the date of the grant.

As of June 26, 2010 the Company had $1,551,200 of total unrecognized compensation expense related to stock options that is expected to be recognized over the remaining weighted average period of approximately 2.6 years.

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10.  Long-term Debt:

As of June 26, 2010, the Company’s borrowing availability under its Amended and Restated Revolving Credit Agreement (the “Credit Facility”), which provides for an aggregate commitment of $40.0 million subject to certain borrowing base limitations, was $40.0 million (the lesser of the borrowing base or the aggregate line of credit).  There were $7.3 million in borrowings outstanding under the Credit Facility bearing interest ranging from 4.58% to 5.76% and having initial terms ranging from three years to five years, leaving $32.7 million available for additional borrowings.

The Credit Facility has been used for growing the Company’s leasing business, stock repurchases and general corporate purposes.  The Credit Facility is secured by a lien against substantially all of the Company’s assets, contains customary financial conditions and covenants, and requires maintenance of minimum levels of debt service coverage and tangible net worth and maximum levels of leverage (all as defined within the Credit Facility).  As of June 26, 2010, the Company was in compliance with all of its financial covenants.  See Note 14 — Subsequent Events.

Renewable Unsecured Subordinated Notes

In 2006, the Company filed a public offering of up to $50 million of Renewable Unsecured Subordinated Notes that was declared effective in June of that year.  Every year since the registration became effective, the Company has filed Post-Effective Amendments to keep the registration statement effective.  As of June 26, 2010, the Company has $18,602,800 outstanding in renewable unsecured subordinated notes.  The table below presents the Company’s outstanding notes payable as of June 26, 2010:

	Original Term	Principal Amount		Weighted Average Interest Rate
Renewable unsecured subordinated notes	3 months	$	115,500	6.28	%
	6 months	425,300		7.24	%
	1 year	2,500,900		8.28	%
	2 years	3,028,000		9.29	%
	3 years	4,100,600		10.10	%
	4 years	1,473,500		9.87	%
	5 years	5,998,500		10.11	%
	10 years	960,500		10.51	%
Total		$	18,602,800	9.63	%

The Company made interest payments of $965,900 and $1,079,900 on the renewable unsecured subordinated notes during the first six months of 2010 and 2009, respectively.  The weighted average initial and remaining terms of the outstanding renewable unsecured subordinated notes are 43 months and 15 months, respectively.  See Note 14 — Subsequent Events.

11.  Discounted Lease Rentals

The Company utilized certain lease receivables and underlying equipment as collateral to borrow from financial institutions at a weighted average rate of 4.59% at June 26, 2010 on a non-recourse basis.  In the event of a default by a customer in non-recourse financing, the financial institution has a first lien on the underlying leased equipment, with no further recourse against the Company.  As of June 26, 2010, $0.6 million of the $0.9 million balance is classified as a current liability.

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12.  Segment Reporting:

The Company currently has two reportable business segments, franchising and leasing.  The franchising segment franchises value-oriented retail store concepts that buy, sell, trade and consign merchandise and Wirth Business Credit, Inc., a small ticket leasing franchise.  The leasing segment includes (i) Winmark Capital Corporation, a middle-market equipment leasing business and (ii) Wirth Business Credit, Inc., a small ticket financing business.  Segment reporting is intended to give financial statement users a better view of how the Company manages and evaluates its businesses. The Company’s internal management reporting is the basis for the information disclosed for its business segments and includes allocation of shared-service costs.  Segment assets are those that are directly used in or identified with segment operations, including cash, accounts receivable, prepaids, inventory, property and equipment and investment in leasing operations. Unallocated assets include corporate cash and cash equivalents, marketable securities, current and long-term investments, deferred tax amounts and other corporate assets.  Inter-segment balances and transactions have been eliminated.  The following tables summarize financial information by segment and provide a reconciliation of segment contribution to operating income:

	Three Months Ended					Six Months Ended
	June 26, 2010		June 27, 2009			June 26, 2010		June 27, 2009
Revenue:
Franchising	$	7,513,300	$	6,695,000		$	14,811,200	$	13,243,300
Leasing	2,365,800		2,143,100			4,910,700		4,844,800
Total revenue	$	9,879,100	$	8,838,100		$	19,721,900	$	18,088,100
Reconciliation to operating income:
Franchising segment contribution	$	3,402,000	$	2,597,800		$	6,777,000	$	5,081,000
Leasing segment contribution	800,600		(358,400		)	1,222,100		(172,200		)
Total operating income	$	4,202,600	$	2,239,400		$	7,999,100	$	4,908,800
Depreciation and amortization:
Leasing	$	3,500	$	21,600		$	7,300	$	36,700
Allocated	115,000		125,800			230,700		241,900
Total depreciation and amortization	$	118,500	$	147,400		$	238,000	$	278,600

	As of
	June 26, 2010		December 26, 2009
Identifiable assets:
Franchising	$	3,207,400	$	3,137,300
Leasing	34,289,900		38,281,900
Unallocated	15,978,900		15,385,300
Total	$	53,476,200	$	56,804,500

13.  Related Party Transactions:

On April 2, 2010, in connection with the Company’s existing stock repurchase plan, Winmark repurchased 25,000 shares of common stock from Ronald G. Olson, a greater than 5% shareholder, for aggregate consideration of $562,500, or $22.50 per share.

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14.Subsequent Events:

On June 29, 2010, the Company announced that it will redeem all of its outstanding Renewable Unsecured Subordinated Notes.  The redemption is anticipated to occur on July 30, 2010 at a redemption price equal to 100% of the principal amount, plus accrued and unpaid interest up to the redemption date.  All interest due on the Notes will cease to accrue on and after the redemption date.

On July 13, 2010, the Company terminated its $40.0 million Credit Facility with Bank of America, N.A. and the PrivateBank and Trust Company and entered into a new four year $30.0 million line of credit with the PrivateBank and Trust Company (the “Line of Credit”).  The Company repaid the borrowings under the Credit Facility on the termination date with existing cash balances and has completed its obligations under such agreement.  The Line of Credit will be used for completing the redemption of the Renewable Unsecured Subordinated Notes and for general corporate purposes.  The Line of Credit is secured by a lien against substantially all of the Company’s assets, contains customary financial conditions and covenants, and requires maintenance of minimum levels of debt service coverage and tangible net worth and maximum levels of leverage (all as defined within the Line of Credit).

ITEM 2:   Management’s Discussion and Analysis of Financial Condition and Results of Operations.

Overview

As of June 26, 2010, we had 908 franchises operating under the Play it Again Sports, Plato’s Closet, Once Upon A Child, Music Go Round and Wirth Business Credit brands and had a leasing portfolio of $33.4 million.  Management closely tracks the following criteria to evaluate current business operations and future prospects: franchising revenue, leasing activity, and selling, general and administrative expenses.

Our most profitable sources of franchising revenue are royalties earned from our franchise partners and franchise fees for new store openings and transfers.  During the first six months of 2010, our royalties increased $1,490,400 or 13.3% compared to the first six months of 2009.  Franchise fees increased $143,500 or 37.3% compared to the same period last year.

During the first six months of 2010, we purchased $8.5 million in equipment for lease contracts compared to $8.7 million in the first six months of 2009.  The level of equipment purchases for lease contracts was lower due to reduced application volume in our small-ticket financing business.  Overall, our leasing portfolio (net investment in leases — current and long-term) decreased to $33.4 million at June 26, 2010 from $37.0 million at December 26, 2009.  Leasing income during the first six months of 2010 was $4.9 million compared to $4.8 million in the same period last year.  (See Note 12 — “Segment Reporting”).  Our earnings are also impacted by credit losses.  During the first six months of 2010, our provision for credit losses decreased to $11,900 from $1,023,900 in the first six months of 2009, as we experienced a lower level of net write-offs and delinquencies, primarily in the small-ticket financing business portion of our leasing segment.

Management continually monitors the level and timing of selling, general and administrative expenses.  The major components of selling, general and administrative expenses include salaries, wages and benefits, advertising, travel, occupancy, legal and professional fees.  During the first six months of 2010, selling, general and administrative expense increased $20,000 or 0.2%, compared to the first six months of 2009.

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Management also monitors several nonfinancial factors in evaluating the current business operations and future prospects including franchise openings and closings and franchise renewals.  The following is a summary of our franchising activity for the first six months ended June 26, 2010:

						SIX MONTHS ENDING 6/26/10
	TOTAL 12/26/09	OPENED	CLOSED		TOTAL 6/26/10	AVAILABLE FOR RENEWAL	COMPLETED RENEWALS
Play It Again Sports Franchises - US and Canada	341	2	(7	)	336	13	11
Plato’s Closet Franchises - US and Canada	267	13	0		280	8	8
Once Upon A Child Franchises - US and Canada	235	8	(3	)	240	14	14
Music Go Round Franchises - US	34	1	(2	)	33	0	0
Total Franchised Stores	877	24	(12	)	889	35	33
Wirth Business Credit Territories - US	37	0	(18	)	19	—	—
Total Franchises/Territories	914	24	(30	)	908	35	33

Renewal activity is a key focus area for management.  Our franchisees sign 10-year agreements with us.  The renewal of existing franchise agreements as they approach their expiration is an indicator that management monitors to determine the health of our business and the preservation of future royalties.  During the first six months of 2010, we renewed 33 franchise agreements of the 35 franchise agreements up for renewal.

Our ability to grow our profits is dependent on our ability to: (i) effectively support our franchise partners so that they produce higher revenues, (ii) open new franchises, (iii) increase lease originations and minimize write-offs in our leasing portfolios, and (iv) control our selling, general and administrative expenses.

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Results of Operations

The following table sets forth selected information from our Consolidated Condensed Statements of Operations expressed as a percentage of total revenue:

	Three Months Ended				Six Months Ended
	June 26, 2010		June 27, 2009		June 26, 2010		June 27, 2009
Revenue:
Royalties	64.5	%	63.5	%	64.5	%	62.2	%
Leasing income	23.7		24.2		24.7		26.8
Merchandise sales	5.6		7.7		5.3		7.2
Franchise fees	3.1		2.7		2.7		2.1
Other	3.1		1.9		2.8		1.7
Total revenues	100.0		100.0		100.0		100.0
Cost of merchandise sold	(5.3	)	(7.4	)	(5.0	)	(6.9	)
Leasing expense	(4.4	)	(5.8	)	(5.0	)	(6.6	)
Provision for credit losses	1.6		(6.8	)	(0.1	)	(5.7	)
Selling, general and administrative expenses	(49.4	)	(54.7	)	(49.4	)	(53.7	)
Income from operations	42.5		25.3		40.5		27.1
Loss from equity investments	(1.0	)	—		(0.6	)	—
Interest expense	(2.7	)	(3.9	)	(2.8	)	(3.8	)
Interest and other income	1.0		1.3		1.4		0.9
Income before income taxes	39.8		22.7		38.5		24.2
Provision for income taxes	(16.1	)	(9.2	)	(15.6	)	(9.8	)
Net income	23.7	%	13.5	%	22.9	%	14.4	%

Comparison of Three Months Ended June 26, 2010 to Three Months Ended June 27, 2009

Revenue

Revenues for the quarter ended June 26, 2010 totaled $9.9 million compared to $8.8 million for the comparable period in 2009.

Royalties and Franchise Fees

Royalties increased to $6.4 million for the second quarter of 2010 from $5.6 million for the same period of 2009, a 13.6% increase.  The increase was due to higher Play It Again Sports, Plato’s Closet and Once Upon A Child royalties of $199,200, $403,800 and $157,400, respectively.  The increase in royalties for these brands is primarily due to higher franchisee retail sales in these brands as well as having 33 additional Plato’s Closet franchise stores in the second quarter of 2010 compared to the same period last year.

Franchise fees increased to $305,000 for the second quarter of 2010 compared to $235,000 for the same period of 2009, primarily as a result of opening three more franchise territories in the second quarter of 2010 period compared to the same period in 2009.

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Leasing Income

Leasing income increased to $2,345,800 for the second quarter of 2010 compared to $2,143,100 for the same period in 2009, a 9.5% increase.  The increase is due to increased sales of equipment.

Merchandise Sales

Merchandise sales include the sale of product to franchisees either through the Play It Again Sports buying group, or through our Computer Support Center (together, “Direct Franchisee Sales”).  Direct Franchisee Sales decreased 19.0% to $550,500 for the second quarter of 2010 from $679,300 for the same period last year.  This is a result of management’s strategic decision to have more franchisees purchase merchandise directly from vendors and having 15 fewer Play It Again Sports stores open at June 26, 2010 than one year ago.

Cost of Merchandise Sold

Cost of merchandise sold includes in-bound freight and the cost of merchandise associated with Direct Franchisee Sales.  Cost of merchandise sold decreased 20.1% to $520,200 for the second quarter of 2010 from $651,100 for the same period last year.  The decrease was primarily due to a decrease in Direct Franchisee Sales discussed above.  Cost of merchandise sold as a percentage of Direct Franchisee Sales for the second quarter of 2010 and 2009 was 94.5% and 95.8%, respectively.

Leasing Expense

Leasing expense decreased to $439,300 for the second quarter of 2010 compared to $512,800 for the second quarter of 2009.  The decrease is primarily due to lower borrowing costs in connection with the lease portfolio.

Provision for Credit Losses

Provision for credit losses was $(160,200) for the second quarter of 2010 compared to $604,200 for the second quarter of 2009.  The decrease is primarily due to a lower level of net write-offs and delinquencies, primarily in the small-ticket financing business portion of our leasing segment.  During the second quarter of 2010, we had total net recoveries of $90,500 compared to total net write-offs of $707,900 in the second quarter of 2009.

Selling, General and Administrative

Selling, general and administrative expenses of $4,877,200 in the second quarter of 2010 was comparable to $4,830,600 in 2009.

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Comparison of Six Months Ended June 26, 2010 to Six Months Ended June 27, 2009

Revenue

Revenues for the first six months of 2010 totaled $19.7 million compared to $18.1 million for the comparable period in 2009.

Royalties and Franchise Fees

Royalties increased to $12.7 million for the first six months of 2010 from $11.2 million for the first six months of 2009, a 13.3% increase.  The increase was due to higher Play It Again Sports, Plato’s Closet and Once Upon A Child royalties of $485,800, $729,600 and $271,800, respectively.  The increase in royalties for these brands is primarily due to higher franchisee retail sales in these brands as well as having 33 additional Plato’s Closet franchise stores in the first six months of 2010 compared to the same period last year.

Franchise fees increased to $528,500 for the first six months of 2010 compared to $385,000 for the first six months of 2009, primarily as a result of opening six more franchise territories in the 2010 period compared to the same period in 2009.

Leasing Income

Leasing income of $4,870,700 for the first six months of 2010 was comparable to $4,844.800 in the same period in 2009.

Merchandise Sales

Merchandise sales include the sale of product to franchisees either through the Play It Again Sports buying group, or through our Computer Support Center (together, “Direct Franchisee Sales”).  Direct Franchisee Sales decreased 19.9% to $1,045,200 for the first six months of 2010 from $1,304,700 for the same period last year.  This is a result of management’s strategic decision to have more franchisees purchase merchandise directly from vendors and having 15 fewer Play It Again Sports stores open at June 26, 2010 than one year ago.

Cost of Merchandise Sold

Cost of merchandise sold includes in-bound freight and the cost of merchandise associated with Direct Franchisee Sales.  Cost of merchandise sold decreased 20.5% to $991,200 for the first six months of 2010 from $1,247,000 for the same period last year.  The decrease was primarily due to a decrease in Direct Franchisee Sales discussed above.  Cost of merchandise sold as a percentage of Direct Franchisee Sales for the first six months of 2010 and 2009 was 94.8% and 95.6%, respectively.

Leasing Expense

Leasing expense decreased to $986,600 for the first six months of 2010 compared to $1,195,300 for the first six months of 2009.  The decrease is primarily due to lower borrowing costs in connection with the lease portfolio.

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Provision for Credit Losses

Provision for credit losses decreased to $11,900 for the first six months of 2010 compared to $1,023,900 for the first six months of 2009.  The decrease is primarily due to a lower level of net write-offs and delinquencies, primarily in the small-ticket financing business portion of our leasing segment.  During the first six months of 2010, we had total net write-offs of $204,900 compared to $1,232,900 in the first six months of 2009.

Selling, General and Administrative

Selling, general and administrative expenses of $9,733,100 in the second quarter of 2010 was comparable to $9,713,100 in 2009.

Segment Comparison of Three Months Ended June 26, 2010 to Three Months Ended June 27, 2009

Franchising segment operating income

The franchising segment’s operating income for the second quarter of 2010 increased by $804,200, or 31.0%, to $3.4 million from $2.6 million for the second quarter of 2009. The increase in segment contribution was primarily due to increased royalty revenue.

Leasing segment operating income (loss)

The leasing segment generated operating income of $800,600 for the second quarter of 2010 compared to a loss of ($358,400) during the second quarter of 2009.  This improvement was primarily due to a decrease in the provision for credit losses which resulted from a lower level of net write-offs and delinquencies in our leasing portfolio.

Segment Comparison of Six Months Ended June 26, 2010 to Six Months Ended June 27, 2009

Franchising segment operating income

The franchising segment’s operating income for the first six months of 2010 increased by $1,696,000, or 33.4%, to $6.8 million from $5.1 million for the first six months of 2009. The increase in segment contribution was primarily due to increased royalty revenue.

Leasing segment operating income (loss)

The leasing segment generated operating income of $1,222,100 for the first six months of 2010 compared to a loss of ($172,200) during the first six months of 2009.  This improvement was primarily due to a decrease in the provision for credit losses which resulted from a lower level of net write-offs and delinquencies in our leasing portfolio.

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Liquidity and Capital Resources

Our primary sources of liquidity have historically been cash flow from operations and borrowings.  The components of the consolidated statement of operations that affect our liquidity include non-cash items for depreciation, compensation expense related to stock options and loss from equity investments.  The most significant component of the consolidated balance sheet that affects liquidity is investments.  Investments include $4.1 million of illiquid investments in two private companies: Tomsten, Inc. and BridgeFunds, LLC.

We ended the second quarter of 2010 with $10.6 million in cash and cash equivalents and a current ratio (current assets divided by current liabilities) of 1.5 to 1.0 compared to $8.7 million in cash and cash equivalents and a current ratio of 1.6 to 1.0 at the end of the second quarter of 2009.

Operating activities provided $6.6 million of cash during the first six months of 2010 compared to $7.3 million during the same period last year.  Cash provided by operating assets and liabilities include an increase in accrued and other liabilities of $703,300, primarily due to increased accrued compensation.

Investing activities provided $2.3 million of cash during the first six months of 2010 compared to $0.1 million provided during the same period of 2009.  The 2010 activities consisted primarily of the purchase of equipment for lease contracts of $8.5 million and collections on lease receivables of $10.4 million.

Financing activities used $7.8 million of cash during the first six months of 2010 compared to $0.8 million used during the same period of 2009.  The 2010 activities consisted primarily of net proceeds from exercises of stock options of $0.7 million, net payments of $4.6 million on the line of credit and subordinated notes and $3.9 million used to purchase 163,567 shares of our common stock and $0.1 million for the payment of dividends.

As of June 26, 2010, we had no off balance sheet arrangements.

As of June 26, 2010, our borrowing availability under our Amended and Restated Revolving Credit Agreement (the “Credit Facility”), which provides for an aggregate commitment of $40.0 million subject to certain borrowing base limitations, was $40.0 million (the lesser of the borrowing base or the aggregate line of credit).  There were $7.3 million in borrowings outstanding under the Credit Facility bearing interest ranging from 4.58% to 5.76% and having initial terms ranging from three years to five years, leaving $32.7 million available for additional borrowings.

On April 19, 2006, we announced the filing of a “shelf registration” on Form S-1 registration statement with the Securities and Exchange Commission for the sale of up to $50 million of Renewable Subordinated Unsecured Notes with maturities from three months to ten years.  In June 2006, the Form S-1 registration became effective.  Every year since the S-1 registration became effective, we have filed Post-Effective Amendments to keep the registration statement effective.

On June 29, 2010, we announced that we will redeem all of our outstanding Renewable Unsecured Subordinated Notes.  The redemption is anticipated to occur on July 30, 2010 at a redemption price equal to 100% of the principal amount, plus accrued and unpaid interest up to the redemption date.  All interest due on the Notes will cease to accrue on and after the redemption date.  As of June 26, 2010, we had $18.6 million of Notes outstanding.

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On July 13, 2010, we terminated our $40.0 million Credit Facility with Bank of America, N.A. and the PrivateBank and Trust Company and entered into a new four year $30.0 million line of credit with the PrivateBank and Trust Company (the “Line of Credit”).  We repaid the borrowings under the Credit Facility on the termination date with existing cash balances and have completed our obligations under this agreement.  The Line of Credit will be used for completing the redemption of the Renewable Unsecured Subordinated Notes and for general corporate purposes.  The Line of Credit is secured by a lien against substantially all of our assets, contains customary financial conditions and covenants, and requires maintenance of minimum levels of debt service coverage and tangible net worth and maximum levels of leverage (all as defined within the Line of Credit).

We may utilize discounted lease financing to provide funds for a portion of our leasing activities.  Rates for discounted lease financing reflect prevailing market interest rates and the credit standing of the lessees for which the payment stream of the leases are discounted.  We believe that discounted lease financing will continue to be available to us at competitive rates of interest through the relationships we have established with financial institutions.

We believe that the combination of our cash on hand, the cash generated from our franchising business, cash generated from discounting sources and our Line of Credit will be adequate to fund our planned operations, including leasing activity, through 2011.

Critical Accounting Policies

The Company prepares the consolidated financial statements of Winmark Corporation and Subsidiaries in conformity with accounting principles generally accepted in the United States of America.  As such, the Company is required to make certain estimates, judgments and assumptions that it believes are reasonable based on information available.  These estimates and assumptions affect the reported amounts of assets and liabilities at the date of the financial statements and the reported amounts of revenue and expenses during the periods presented.  There can be no assurance that actual results will not differ from these estimates.  The critical accounting policies that the Company believes are most important to aid in fully understanding and evaluating the reported financial results include the following:

Revenue Recognition — Royalty Revenue and Franchise Fees

The Company collects royalties from each retail franchisee based on a percentage of retail store gross sales.  The Company recognizes royalties as revenue when earned.  At the end of each accounting period, estimates of royalty amounts due are made based on applying historical weekly sales information to the number of weeks of unreported franchisee sales.  If there are significant changes in the actual performances of franchisees versus the Company’s estimates, its royalty revenue would be impacted.  During the first six months of 2010, the Company collected $93,800 more than it estimated at December 26, 2009.  As of June 26, 2010, the Company’s royalty receivable was $1,044,100.

The Company collects initial franchise fees when franchise agreements are signed and recognizes the initial franchise fees as revenue when the franchise is opened, which is when the Company has performed substantially all initial services required by the franchise agreement.  Franchise fees collected from franchisees but not yet recognized as income are recorded as deferred revenue in the liability section of the consolidated balance sheet.  As of June 26, 2010, deferred franchise fees were $1,015,400.

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Leasing Income Recognition

Leasing income is recognized under the effective interest method.  The effective interest method of income recognition applies a constant rate of interest equal to the internal rate of return on the lease.  Generally, when a lease is 90 days or more delinquent, the lease is classified as being on non-accrual and the Company stops recognizing leasing income on that date.

In certain circumstances, the Company may re-lease equipment in its existing portfolio.  This may give rise to dealer profit and require the Company to account for the lease as a sales-type lease.  At inception of a sales-type lease, revenue is recorded that consists of the present value of the future minimum lease payments discounted at the rate implicit in the lease.  In subsequent periods, the recording of income is consistent with the accounting for a direct financing lease.

Allowances for Credit Losses

The Company maintains an allowance for credit losses at an amount that it believes to be sufficient to absorb losses inherent in its existing lease portfolio as of the reporting dates.  A provision is charged against earnings to maintain the allowance for credit losses at the appropriate level.  If the actual results are different from the Company’s estimates, results could be different.  The Company’s policy is to charge-off against the allowance the estimated unrecoverable portion of accounts once they reach 121 days delinquent.

Stock-Based Compensation

The Company currently uses the Black-Scholes option-pricing model to determine the fair value of stock options.  The determination of the fair value of the awards on the date of grant using an option-pricing model is affected by stock price as well as assumptions regarding a number of complex and subjective variables.  These variables include implied volatility over the term of the awards, actual and projected employee stock option exercise behaviors, risk-free interest rate and expected dividends.

The Company evaluates the assumptions used to value awards on an annual basis.  If factors change and the Company employs different assumptions for estimating stock-based compensation expense in future periods or if the Company decides to use a different valuation model, the future periods may differ significantly from what it has recorded in the current period and could materially affect operating income, net income and earnings per share.

Impairment of Long-term Investments

The Company evaluates its long-term investments for impairment on an annual basis or whenever events or changes in circumstances indicate the carrying amount may not be recoverable.  The impairment, if any, is measured by the difference between the assets’ carrying amount and their fair value, based on the best information available, including market prices, discounted cash flow analysis or other financial metrics that management utilizes to help determine fair value.  Judgments made by management related to the fair value of its long-term investments are affected by factors such as the ongoing financial performance of the investees, additional capital raised by the investees as well as general changes in the economy.

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Forward Looking Statements

The statements contained in this Item 2 “Management’s Discussion and Analysis of Financial Condition and Results of Operations” that are not strictly historical fact, including without limitation, the Company’s belief that it will have adequate capital and reserves to meet its current and contingent obligations and operating needs, as well as its disclosures regarding market rate risk are forward looking statements made under the safe harbor provision of the Private Securities Litigation Reform Act.  Such statements are based on management’s current expectations as of the date of this Report, but involve risks, uncertainties and other factors that may cause actual results to differ materially from those contemplated by such forward looking statements.  Investors are cautioned to consider these forward looking statements in light of important factors which may result in material variations between results contemplated by such forward looking statements and actual results and conditions.  See the section appearing in our annual report on Form 10-K for the fiscal year ended December 26, 2009 entitled “Risk Factors” and Part II, Item 1A in this Report for a more complete discussion of certain factors that may cause the Company’s actual results to differ from those in its forward looking statements.  You should not place undue reliance on these forward-looking statements, which speak only as of the date they were made.  The Company undertakes no obligation to revise or update publicly any forward-looking statements for any reason.

ITEM 3:   Quantitative and Qualitative Disclosures About Market Risk

The Company incurs financial markets risk in the form of interest rate risk.  Risk can be quantified by measuring the financial impact of a near-term adverse increase in short-term interest rates.  At June 26, 2010, the Company had available a $40.0 million line of credit with Bank of America, N.A. and The PrivateBank and Trust Company.  The interest rates applicable to this agreement are based on either the bank’s base rate or LIBOR for short-term borrowings (less than six months) or the bank’s index rate for borrowings one year or greater.  The Company had $7.3 million of debt outstanding at June 26, 2010 under this line of credit, all of which was in the form of fixed rate borrowings in excess of one year and therefore were not subject to daily changes in the bank’s base rate or LIBOR.  The Company’s earnings would be affected by changes in these short-term interest rates only in the event that it were to borrow additional amounts under this facility with interest rates based on the bank’s base rate or LIBOR.  With the Company’s borrowings at June 26, 2010, a one percent increase in short-term rates would have no impact on annual pretax earnings.  The Company had no interest rate derivatives in place at June 26, 2010.

Approximately $9.3 million of the Company’s cash and cash equivalents at June 26, 2010 was invested in money market mutual funds, which are subject to the effects of market fluctuations in interest rates.

Although the Company conducts business in foreign countries, international operations are not material to its consolidated financial position, results of operations or cash flows.  Additionally, foreign currency transaction gains and losses were not material to the Company’s results of operations for the three and six months ended June 26, 2010.  Accordingly, the Company is not currently subject to material foreign currency exchange rate risks from the effects that exchange rate movements of foreign currencies would have on its future costs or on future cash flows it would receive from its foreign activity.  To date, the Company has not entered into any foreign currency forward exchange contracts or other derivative financial instruments to hedge the effects of adverse fluctuations in foreign currency exchange rates.

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ITEM 4T:   Controls and Procedures

As of the end of the period covered by this report, the Company conducted an evaluation, under the supervision and with the participation of the principal executive officer and principal financial officer, of its disclosure controls and procedures as defined in Rules 13a-15(e) and 15d-15(e) under the Securities Exchange Act of 1934 (the “Exchange Act”).  Based upon, and as of the date of that evaluation, the principal executive officer and principal financial officer concluded that the Company’s disclosure controls and procedures are effective to ensure that information required to be disclosed by the Company in reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in Securities and Exchange Commission rules and forms, and that such information is accumulated and communicated to the Company’s management, including its principal executive officer and principal financial officer, as appropriate to allow timely decisions regarding required disclosure.  There was no change in the Company’s internal control over financial reporting during its most recently completed fiscal quarter that has materially affected, or is reasonably likely to materially affect, its internal control over financial reporting.

PART II.OTHER INFORMATION

ITEM 1:  Legal Proceedings

We are not a party to any material litigation and are not aware of any threatened litigation that would have a material adverse effect on our business.

ITEM 1A:  Risk Factors

In addition to the other information set forth in this report, including the important information in “Forward-Looking Statements,” you should carefully consider the “Risk Factors” discussed in the Company’s Annual Report on Form 10-K for the year ended December 26, 2009.  If any of those factors were to occur, they could materially adversely affect the Company’s financial condition or future results, and could cause its actual results to differ materially from those expressed in its forward-looking statements in this report.  The Company is aware of no material changes to the Risk Factors discussed in the Company’s Annual Report on Form 10-K for the year ended December 26, 2009.

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ITEM 2:  Unregistered Sales of Equity Securities and Use of Proceeds

Purchase of Equity Securities by the Issuer and Affiliated Purchasers

Period	Total Number of Shares Purchased	Average Price Paid Per Share		Total Number of Shares Purchased as Part of a Publicly Announced Plan(1)	Maximum Number of Shares that may yet be Purchased Under the Plan
December 27, 2009 to January 30, 2010	6,382	$	22.20	6,382	254,574
January 31, 2010 to February 27, 2010	8,701	21.46		8,701	245,873
February 28, 2010 to March 27, 2010	15,493	21.28		15,493	230,380
March 28, 2010 to May 1, 2010	102,575	22.49		102,575	127,805
May 2, 2010 to May 29, 2010	11,690	29.72		11,690	116,115
May 30, 2010 to June 26, 2010	18,726	32.97		18,726	97,389
Total	163,567	$	24.03	163,567	97,389

(1)The Board of Directors’ authorization for the repurchase of shares of the Company’s common stock was originally approved in 1995 with no expiration date.  The total shares approved for repurchase has been increased by additional Board of Directors’ approvals and is currently limited to 4,500,000 shares, of which 97,389 may still be repurchased.

ITEM 3:  Defaults Upon Senior Securities

None.

ITEM 4:   Reserved

ITEM 5:  Other Information

All information required to be reported in a report on Form 8-K during the period covered by this Form 10-Q has been reported.

ITEM 6:   Exhibits

3.1Articles of Incorporation, as amended (Exhibit 3.1)(1)

3.2By-laws, as amended and restated to date (Exhibit 3.2)(2)

10.12010 Stock Option Plan, including forms of stock option agreements (Exhibit 10.18)(3)

10.2Credit Agreement, dated July 13, 2010, among Winmark Corporation and its subsidiaries and the PrivateBank and Trust Company*

10.3Security Agreements, dated July 13, 2010, among Winmark Corporation, each of its subsidiaries and the PrivateBank and Trust Company*

24

10.4Pledge Agreement, dated July 13, 2010, among Winmark Corporation and the PrivateBank and Trust Company*

10.5Revolving Note, dated July 13, 2010, by Winmark Corporation and its subsidiaries to the PrivateBank and Trust Company*

31.1Certification of Chief Executive Officer Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002*

31.2Certification of Chief Financial Officer Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002*

32.1Certification of Chief Executive Officer Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002*

32.2Certification of Chief Financial Officer Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002*

* Filed Herewith

(1)Incorporated by reference to the specified exhibit to the Registration Statement on Form S-1, effective August 24, 1993 (Reg. No. 333-65108).

(2)Incorporated by reference to the specified exhibit to the Annual Report on Form 10-K for the fiscal year ended December 30, 2006.

(3)Incorporated by reference to the specified exhibit to the Annual Report on Form 10-K for the fiscal year ended December 26, 2009.

25

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.

Date: July 23, 2010	By:	/s/ John L. Morgan
		John L. Morgan
		Chairman of the Board and Chief Executive Officer
		(principal executive officer)
Date: July 23, 2010	By:	/s/ Anthony D. Ishaug
		Anthony D. Ishaug
		Chief Financial Officer and Treasurer
		(principal financial and accounting officer)

26

EXHIBIT INDEX

WINMARK CORPORATION

FORM 10-Q FOR QUARTER ENDED JUNE 26, 2010

Exhibit No.	Description
3.1	Articles of Incorporation, as amended (Exhibit 3.1)(1)
3.2	By-laws, as amended and restated to date (Exhibit 3.2)(2)
10.1	2010 Stock Option Plan, including forms of stock option agreements (Exhibit 10.18)(3)
10.2	Credit Agreement, dated July 13, 2010, among Winmark Corporation and its subsidiaries and the PrivateBank and Trust Company*
10.3	Security Agreements, dated July 13, 2010, among Winmark Corporation, each of its subsidiaries and the PrivateBank and Trust Company*
10.4	Pledge Agreement, dated July 13, 2010, among Winmark Corporation and the PrivateBank and Trust Company*
10.5	Revolving Note, dated July 13, 2010, by Winmark Corporation and its subsidiaries to the PrivateBank and Trust Company*
31.1	Certification of Chief Executive Officer Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002*
31.2	Certification of Chief Financial Officer Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002*
32.1	Certification of Chief Executive Officer Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002*
32.2	Certification of Chief Financial Officer Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002*

* Filed Herewith

(1)	Incorporated by reference to the specified exhibit to the Registration Statement on Form S-1, effective August 24, 1993 (Reg. No. 333-65108).
(2)	Incorporated by reference to the specified exhibit to the Annual Report on Form 10-K for the fiscal year ended December 30, 2006.
(3)	Incorporated by reference to the specified exhibit to the Annual Report on Form 10-K for the fiscal year ended December 26, 2009.

EX-10.2

Exhibit 10.2

CREDIT AGREEMENT

dated as of July 13, 2010

among

WINMARK CORPORATION,

as the Company and a Loan Party,

THE SUBSIDIARIES OF THE COMPANY,

as Loan Parties,

EACH LENDER PARTY HERETO,

and

THE PRIVATEBANK AND TRUST COMPANY,

as a Lender and as Administrative Agent for the Lenders

TABLE OF CONTENTS

SECTION 1	DEFINITIONS	1
1.1	Definitions	1
1.2	Other Interpretive Provisions	17
1.3	Letter of Credit Amounts	18
SECTION 2	COMMITMENTS OF THE LENDERS; BORROWING, CONVERSION AND LETTER OF CREDIT PROCEDURES	18
2.1	Commitments	18
2.2	Loan Procedures	19
2.3	Letter of Credit Procedures	21
2.4	Certain Conditions	25
2.5	Defaulting Lenders	25
2.6	Increase in Commitments	26
SECTION 3	EVIDENCING OF LOANS	28
3.1	Notes	28
3.2	Recordkeeping	28
SECTION 4	INTEREST	28
4.1	Interest Rates	28
4.2	Interest Payment Dates	28
4.3	Setting and Notice of LIBOR Rates	28
4.4	Computation of Interest	29
SECTION 5	FEES	29
5.1	Letter of Credit Fees	29
5.2	Other Fees	29
SECTION 6	REDUCTION OR TERMINATION OF THE REVOLVING COMMITMENT; PREPAYMENTS	30
6.1	Prepayments	30
6.2	Repayments and Terminations	30
6.3	Reduction of Aggregate Commitments	30
SECTION 7	MAKING AND PRORATION OF PAYMENTS; SETOFF; TAXES	31
7.1	Payments Generally; Agent’s Clawback	31
7.2	Sharing of Payments	32
7.3	Application of Certain Payments	33
7.4	Due Date Extension	33
7.5	Setoff	33
7.6	Taxes	34
SECTION 8	INCREASED COSTS; SPECIAL PROVISIONS FOR LIBOR LOANS	34
8.1	Increased Costs	34
8.2	Basis for Determining Interest Rate Inadequate or Unfair	35
8.3	Changes in Law Rendering LIBOR Loans Unlawful	35
8.4	Funding Losses	36
8.5	Right of the Lenders to Fund through Other Offices	36
8.6	Discretion of the Lenders as to Manner of Funding	36
8.7	Mitigation of Circumstances	36
8.8	Conclusiveness of Statements; Survival of Provisions	37

i

SECTION 9	REPRESENTATIONS AND WARRANTIES	37
9.1	Organization	37
9.2	Authorization; No Conflict	37
9.3	Validity and Binding Nature	37
9.4	Financial Condition	37
9.5	No Material Adverse Change	38
9.6	Litigation and Contingent Liabilities	38
9.7	Ownership of Properties; Liens	38
9.8	Equity Ownership; Subsidiaries	38
9.9	Pension Plans	38
9.10	Investment Company Act	39
9.11	Public Utility Holding Company Act	39
9.12	Margin Stock	39
9.13	Taxes; Tax Shelter Registration	39
9.14	Solvency, etc.	40
9.15	Environmental Matters	40
9.16	Insurance	40
9.17	Real Property	40
9.18	Information	41
9.19	Intellectual Property	41
9.20	Burdensome Obligations	41
9.21	Labor Matters	41
9.22	No Default	41
9.23	Accounts	41
9.24	Anti-Terrorism Law Compliance	41
9.25	Compliance with Laws	42
9.26	Hedging Agreements	42
9.27	Patriot Act	42
SECTION 10	AFFIRMATIVE COVENANTS	43
10.1	Reports, Certificates and Other Information	43
10.2	Books, Records and Inspections	45
10.3	Maintenance of Property; Insurance	46
10.4	Compliance with Laws; Payment of Taxes and Liabilities	46
10.5	Maintenance of Existence, etc.	47
10.6	Use of Proceeds	47
10.7	Employee Benefit Plans	47
10.8	Environmental Matters	47
10.9	Tax Shelter Registration	48
10.10	Further Assurances	48
10.11	Unsecured Notes	48
SECTION 11	NEGATIVE COVENANTS	48
11.1	Debt	48
11.2	Liens	49
11.3	Operating Leases	50
11.4	Restricted Payments	50
11.5	Mergers, Consolidations, Sales	50

ii

11.6	Modification of Organizational Documents	52
11.7	Affiliate Transactions	52
11.8	Unconditional Purchase Obligations	52
11.9	Inconsistent Agreements	52
11.10	Business Activities; Issuance of Equity	52
11.11	[INTENTIONALLY OMITTED]	52
11.12	Subordinated Debt Documents	52
11.13	Fiscal Year	52
11.14	Control Agreements	53
11.15	Tangible Net Worth	53
11.16	Debt Service Coverage	53
11.17	Maximum Leverage	53
11.18	Laws and Regulations	53
SECTION 12	EFFECTIVENESS; CONDITIONS OF LENDING, ETC.	53
12.1	Initial Credit Extension	53
12.2	Conditions	55
SECTION 13	EVENTS OF DEFAULT AND THEIR EFFECT	55
13.1	Events of Default	55
13.2	Effect of Event of Default	57
13.3	Application of Funds	58
SECTION 14	ADMINISTRATIVE AGENT	59
14.1	Appointment and Authorization	59
14.2	L/C Issuer	59
14.3	Delegation of Duties	59
14.4	Exculpation of Administrative Agent	59
14.5	Reliance by Administrative Agent	60
14.6	Notice of Default	60
14.7	Credit Decision	61
14.8	Indemnification	61
14.9	Administrative Agent in Individual Capacity	62
14.10	Successor Administrative Agent	62
14.11	Collateral Matters	62
14.12	Administrative Agent May File Proofs of Claim	63
14.13	Other Agents; Arrangers and Managers	63
SECTION 15	THE LOAN PARTIES	64
15.1	Appointment of the Company	64
15.2	Relationship Among the Loan Parties	64
SECTION 16	GENERAL	67
16.1	Waiver, Amendments, Etc.	67
16.2	Confirmations	68
16.3	Notices	68
16.4	Computations	68
16.5	Expenses, Indemnity, Damage Waiver	69
16.6	Payments Set Aside	70
16.7	Successors and Assigns	71
16.8	Register	72

iii

16.9	GOVERNING LAW	72
16.10	Confidentiality	72
16.11	Severability	73
16.12	Nature of Remedies	73
16.13	Entire Agreement	73
16.14	Counterparts	73
16.15	Successors and Assigns	74
16.16	Captions	74
16.17	Customer Identification - USA Patriot Act Notice	74
16.18	Nonliability of Agent and each Lender	74
16.19	FORUM SELECTION AND CONSENT TO JURISDICTION	75
16.20	WAIVER OF JURY TRIAL	75

iv

SCHEDULES

SCHEDULE 2.1	Commitments
SCHEDULE 9.6	Litigation and Contingent Liabilities
SCHEDULE 9.7	Ownership of Properties; Liens
SCHEDULE 9.8	Subsidiaries
SCHEDULE 9.17	Real Property
SCHEDULE 11.7	Affiliate Transactions

EXHIBITS

EXHIBIT A	Form of Note
EXHIBIT B	Form of Compliance Certificate
EXHIBIT C	Form of Borrowing Base Certificate
EXHIBIT D	Form of Notice of Borrowing
EXHIBIT E	Form of Notice of Conversion/Continuation

CREDIT AGREEMENT

Dated as of July 13, 2010

WINMARK CORPORATION (the “Company”), the Subsidiaries of the Company that are or may from time to time become parties hereto (together with the Company and their respective successors and assigns, the “Loan Parties”), each lender from time to time party hereto (collectively, the “Lenders” and individually, a “Lender”), THE PRIVATEBANK AND TRUST COMPANY (“PrivateBank”), as a Lender and as Administrative Agent for the Lenders:

RECITALS

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

In consideration of the mutual agreements herein contained, the parties hereto agree as follows:

SECTION 1DEFINITIONS.

1.1Definitions.  When used herein the following terms shall have the following meanings:

“Account”:  As defined in the UCC.

“Account Debtor”:  As defined in the UCC.

“Acquisition”:  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.

“Administrative Agent” or “Agent”:  PrivateBank in its capacity as administrative agent under any of the Loan Documents, or any successor administrative agent.

“Administrative Agent’s Office”:  Agent’s address and, as appropriate, account as set forth on the signature page or Schedule 2.1 to this Agreement, or such other address or account as Agent may from time to time notify the Company and the Lenders in writing (which for purposes of this provision may include a notice by e-mail).

“Affected Loan”:  As defined in Section 8.3.

1

“Affiliate”:  With respect to any Person, (a) any other Person which, directly or indirectly, controls or is controlled by or is under common control with such Person, (b) any officer or director of such Person and (c) with respect to any Lender, any entity administered or managed by such Lender or an Affiliate or investment advisor thereof and which is engaged in making, purchasing, holding or otherwise investing in commercial loans.  A Person shall be deemed to be “controlled by” any other Person if such 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 or power to direct or cause the direction of the management and policies of such Person whether by contract or otherwise.  Unless expressly stated otherwise herein, no Lender shall be deemed an Affiliate of any Loan Party.

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

“Agreement”:  As defined in the Recitals.

“Applicable Margin”:  For any day, a rate per annum of (i) for LIBOR Loans, 2.75%, (ii) for Base Rate Loans, 0.50% or (iii) for Fixed Rate Loans, 2.75%.

“Applicable Percentage”:  With respect to any Lender at any time, the percentage (carried out to the ninth decimal place) of the Aggregate Commitments represented by such Lender’s Commitment at such time.  If the commitment of each Lender to make Loans and the obligation of the L/C Issuer to make L/C Credit Extensions have been terminated pursuant to Section 13.2 or if the Aggregate Commitments have expired, then the Applicable Percentage of each Lender shall be determined based on the Applicable Percentage of such Lender most recently in effect, giving effect to any subsequent assignments.  The initial Applicable Percentage of each Lender is set forth opposite the name of such Lender on Schedule 2.1 of this Agreement or in the Assignment Agreement pursuant to which such Lender becomes a party hereto, as applicable.

“Approved Fund”:  Any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.

“Asset Disposition”:  The sale, lease, assignment or other transfer for value (each, a “Disposition”) by any Loan Party to any Person (other than a Loan Party) of any asset or right of such Loan Party (including, the loss, destruction or damage of any thereof or any actual or threatened (in writing to any Loan Party) condemnation, confiscation, requisition, seizure or taking thereof) other than (a) 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 (b) the sale or lease of inventory in the ordinary course of business.

“Assignment Agreement”:  As defined in Section 16.7(a).

“Attorney Costs”:  With respect to any Person, all reasonable fees and charges of any counsel to such Person, the reasonable allocable cost of internal legal services of such Person, all reasonable disbursements of such internal counsel and all court costs and similar legal expenses.

2

“Bank Product Agreements”:  Those certain cash management service agreements entered into from time to time between any Loan Party and any Lender or its Affiliates in connection with any of the Bank Products.

“Bank Product Obligations”:  All obligations, liabilities, contingent reimbursement obligations, fees, and expenses owing by the Loan Parties to the Lenders or their Affiliates pursuant to or evidenced by the Bank Product Agreements and irrespective of whether for the payment of money, whether direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, and including all such amounts that a Loan Party is obligated to reimburse to any Lender as a result of such Lender purchasing participations or executing indemnities or reimbursement obligations with respect to the Bank Products provided to the Loan Parties pursuant to the Bank Product Agreements.

“Bank Products”:  Any service or facility extended to any Loan Party by any Lender or its Affiliates including, (a) deposit accounts, (b) cash management services, including, controlled disbursement, lockbox, electronic funds transfers (including, book transfers, fedwire transfers, ACH transfers), online reporting and other services relating to accounts maintained with any Lender or its Affiliates, (c) debit cards and (d) Hedging Agreements.

“Base Rate”:  At any time the greater of (a) the Federal Funds Rate plus 0.5% and (b) the Prime Rate.  The Lenders may lend to their customers at rates that are at, above, or below the Base Rate.

“Base Rate Loan”:  Any Loan which bears interest at or by reference to the Base Rate.

“Borrowing Base”:  As of any month-end, the sum of (a) 90% of the net book value of the Eligible Leased Assets of the Loan Parties on such month-end, plus (b) an amount equal to EBITDA of the Company’s franchising and corporate segments for the twelve consecutive months ended on such month-end times two (2).

“Borrowing Base Certificate”:  A certificate substantially in the form of Exhibit C.

“BSA”:  As defined in Section 10.4.

“Business Day”:  Any day on which PrivateBank is open for commercial banking business in Chicago, Illinois and, in the case of a Business Day which relates to a LIBOR Loan, on which dealings are carried on in the London interbank eurodollar market.

“Capital Expenditures”:  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.

3

“Capital Lease”:  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”:  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 Closing Date, 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 Obligations”:  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.

“Cash Collateralize”:  To deliver cash collateral to a L/C Issuer, to be held as cash collateral for outstanding Letters of Credit, pursuant to documentation satisfactory to such L/C Issuer and in an amount satisfactory to such L/C Issuer which amount may exceed the Stated Amount of outstanding Letters of Credit.  Derivatives of such term have corresponding meanings.

“Change of Control”:  The occurrence of any of the following events:  (a) 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; (b) 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 (c) the Company shall cease to, directly or indirectly, own and control 100% of each class of the outstanding Capital Securities of each Subsidiary.

“Closing Date”:  As defined in Section 12.1.

“Code”:  The Internal Revenue Code of 1986.

“Collateral”:  The property in which a security interest is, or is intended to be, granted pursuant to this Agreement, the Security Agreement, the Pledge Agreement, the Control Agreement or any other Loan Document.

“Collateral Access Agreement”:  An agreement in form and substance reasonably satisfactory to Agent 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 Loan Party, acknowledges the Liens of 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 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.

4

“Collateral Documents”:  Collectively, the Security Agreement, the Pledge Agreement, each Collateral Access Agreement, each UCC-1 financing statement, each Control Agreement and any other agreement or instrument pursuant to which the Company, any other Loan Party or any other Person grants or purports to grant collateral to Agent or otherwise relates to such collateral, as they may be amended, modified, supplemented, restated or replaced from time to time.

“Commitment”:  As to each Lender, its obligation to (a) make Loans to the Company pursuant to Section 2.1.1, and (b) purchase participations in L/C Obligations, 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.

“Company”:  As defined in the Preamble.

“Compliance Certificate”:  A Compliance Certificate in substantially the form of Exhibit B.

“Contingent Liability”:  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:  (a) 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; (b) 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 Agreement”:  An account control agreement, in form and substance satisfactory to Agent, among Agent, the applicable Loan Party and the depository or securities intermediary for any deposit, checking or brokerage account opened or maintained by a Loan Party.

5

“Controlled Group”:  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.

“Debt”:  With respect to any Person, without duplication, (a) all indebtedness of such Person, (b) all borrowed money of such Person, whether or not evidenced by bonds, debentures, notes or similar instruments, (c) 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 a Loan Party under non-recourse discounted leases, (d) 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), (e) 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, (f) 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 (including the Letters of Credit), (g) all Hedging Obligations of such Person, (h) all Contingent Liabilities of such Person and (i) all Debt of any partnership of which such Person is a general partner.

“Default Rate”:  A rate of interest equal to the rate of interest then in effect with respect to any Loan as of the date of determination (including any Applicable Margin) plus two percent (2%) (or, in the case of Obligations not bearing interest, a rate of interest equal to the Base Rate plus two percent (2%)).

“Defaulting Lender”:  Any Lender that (a) has failed to fund any portion of the Loans or participations in L/C Obligations required to be funded by it hereunder within one Business Day of the date required to be funded by it hereunder unless such failure has been cured, (b) has otherwise failed to pay over to Administrative Agent or any other Lender any other amount required to be paid by it hereunder within one Business Day of the date when due, unless the subject of a good faith dispute or unless such failure has been cured, (c) has been deemed insolvent or become the subject of a bankruptcy or insolvency proceeding, (d) has notified Company, the Administrative Agent, any L/C Issuer or any Lender that it does not intend to comply with any of its funding obligations under this Agreement or has made a public statement to the effect that it does not intend to comply with its funding obligations under this Agreement or under other agreements in which it commits to extend credit or (e) has failed to confirm within three Business Days of a request by the Administrative Agent that it will comply with the terms of this Agreement relating to its obligations to fund prospective Loans or participations in L/C Obligations.

“Depreciation”:  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.

6

“Dollar” and the sign “$”:  Lawful money of the United States of America.

“EBITDA”:  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.

“Eligible Assignee”:  Any of the following: (a) a Lender; (b) an Affiliate of a Lender; (c) an Approved Fund; and (d) any other Person (other than a natural person) approved by (i) the Administrative Agent and the L/C Issuer, and (ii) unless an Event of Default has occurred and is continuing, the Company (each such approval not to be unreasonably withheld or delayed); provided that notwithstanding the foregoing, “Eligible Assignee” shall not include the Company or any of the Company’s Affiliates or Subsidiaries.

“Eligible Leased Assets”:  Each Account and all such Accounts (exclusive of sales, excise or other similar taxes) owing to a Loan Party that arises solely from the leasing of Equipment by such Loan Party and that meets each of the following requirements:

(a)it is genuine in all respects and has arisen in the ordinary course of the Loan Party’s business from the sale or lease of Equipment by such Loan Party;

(b)it is subject to a perfected, first priority Lien in favor of Agent and is not subject to any other assignment, claim or Lien;

(c)it is the valid, legally enforceable and unconditional obligation of the Account Debtor with respect thereto, and is not subject to the fulfillment of any condition whatsoever or any counterclaim, credit (except as provided in subsection (h) of this definition), trade or volume discount, allowance, discount, rebate or adjustment by the Account Debtor with respect thereto, or to any claim by such Account Debtor denying liability thereunder in whole or in part and the Account Debtor has not refused to accept and/or has not returned or offered to return any of the Equipment or services which are the subject of such Account;

(d)the Account Debtor with respect thereto is a resident or citizen of, and is located within, the United States, unless the lease of Equipment giving rise to such Account is on letter of credit, banker’s acceptance or other credit support terms reasonably satisfactory to Agent;

(e)it is not an Account with respect to which possession and/or control of the Equipment leased giving rise thereto is held, maintained or retained by the Loan Party (or by any agent or custodian of such Loan Party) for the account of, or subject to, further and/or future direction from the Account Debtor with respect thereto;

(f)it has not arisen out of contracts with the United States or any department, agency or instrumentality thereof, unless the Loan Party has assigned its right to payment of such Account to Agent pursuant to the Assignment of Claims Act of 1940, and evidence (satisfactory to Agent) of such assignment has been delivered to Agent, or any

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state, county, city or other governmental body, or any department, agency or instrumentality thereof;

(g)if the Loan Party maintains a credit limit for an Account Debtor, the aggregate dollar amount of Accounts due from such Account Debtor, including such Account, does not exceed such credit limit;

(h)if the Account is evidenced by chattel paper or an instrument, the originals of such chattel paper or instrument shall have been endorsed and/or assigned and delivered to Agent or, in the case of electronic chattel paper, shall be in the control of Agent, in each case in a manner satisfactory to Agent;

(i)such Account is evidenced by an invoice delivered to the related Account Debtor and is not more than ninety (90) days past the due date thereof;

(j)it is not an Account with respect to an Account Debtor that is located in any jurisdiction which has adopted a statute or other requirement with respect to which any Person that obtains business from within such jurisdiction must file a notice of business activities report or make any other required filings in a timely manner in order to enforce its claims in such jurisdiction’s courts unless (i) such notice of business activities report has been duly and timely filed or the Loan Party is exempt from filing such report and has provided Agent with satisfactory evidence of such exemption or (ii) the failure to make such filings may be cured retroactively by such Loan Party for a nominal fee;

(k)the Account Debtor with respect thereto is not an Affiliate of the Loan Party;

(l)such Account does not arise out of a contract or order which, by its terms, forbids or makes void or unenforceable the assignment thereof by the Loan Party to Agent and is not unassignable to Agent for any other reason;

(m)there is no bankruptcy, insolvency or liquidation proceeding pending by or against the Account Debtor with respect thereto, nor has the Account Debtor suspended business, made a general assignment for the benefit of creditors or failed to pay its debts generally as they come due, and/or no condition or event has occurred having a Material Adverse Effect on the Account Debtor which would require the Accounts of such Account Debtor to be deemed uncollectible in accordance with GAAP;

(n)it is not owed by an Account Debtor with respect to which twenty five percent (25.00%) or more of the aggregate amount of outstanding Accounts owed at such time by such Account Debtor is classified as ineligible under clause (j) of this definition;

(o)if the aggregate amount of all Accounts owed by the Account Debtor thereon exceeds twenty five percent (25.00%) of the aggregate amount of all Accounts at such time, then all Accounts owed by such Account Debtor in excess of such amount shall be deemed ineligible; and

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(p)it does not violate the negative covenants and does satisfy the affirmative covenants of the Loan Party contained in this Agreement, and it is otherwise not unacceptable to Agent for any other reason;

provided, an Account which is at any time an Eligible Leased Asset, but which subsequently fails to meet any of the foregoing requirements, shall forthwith cease to be an Eligible Leased Asset, until such time that such Account meets all of the foregoing requirements; provided further, that, with respect to any Account, if Agent at any time hereafter determines in its discretion that the prospect of payment or performance by the Account Debtor with respect thereto is materially impaired for any reason whatsoever, such Account shall cease to be an Eligible Leased Asset after notice of such determination is given to the relevant Loan Party; and provided further, that Agent shall, notwithstanding the foregoing, have the right, in the reasonable exercise of its discretion, to establish reserves against the aggregate amount of the Eligible Leased Assets.

“Environmental Claims”:  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”:  All present or future federal, state or local laws, statutes, common law duties, rules, regulations, ordinances and codes, together with all administrative or judicial orders, consent agreements, directed duties, requests, licenses, authorizations and permits of, and agreements with, any governmental authority, in each case relating to any matter arising out of or relating to public health and safety, or pollution or protection of the environment or workplace, including any of the foregoing relating to the presence, use, production, generation, handling, transport, treatment, storage, disposal, distribution, discharge, emission, release, threatened release, control or cleanup of any Hazardous Substance.

“ERISA”:  The Employee Retirement Income Security Act of 1974.

“Equipment”:  As defined in the UCC.

“Event of Default”:  Any of the events described in Section 13.1.

“Excluded Taxes”:  With respect to each Lender, taxes based upon, or measured by, such Lender’s (or a branch of such Lender’s) overall net income, overall net receipts, or overall net profits (including franchise taxes imposed in lieu of such taxes), but only to the extent such taxes are imposed by a taxing authority (a) in a jurisdiction in which such Lender is organized, (b) in a jurisdiction which such Lender’s principal office is located, or (c) in a jurisdiction in which such Lender’s lending office (or branch) in respect of which payments under this Agreement are made is located.

“Federal Funds Rate”:  For any day, a fluctuating interest rate equal for each day during such period to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published for such day (or, if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a

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Business Day, the average of the quotations for such day on such transactions received by Agent from three Federal funds brokers of recognized standing selected by Agent.  Agent’s determination of such rate shall be binding and conclusive absent manifest error.

“Fiscal Quarter”:  A fiscal quarter of a Fiscal Year.

“Fiscal Year”:  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 2009”) refer to the Fiscal Year ending on the last Saturday of such calendar year.

“Fixed Rate Loan”:  A Loan which bears interest at or by reference to the Loan Index Rate.

“FRB”:  The Board of Governors of the Federal Reserve System or any successor thereto.

“Fund”:  Any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its activities.

“GAAP”:  Generally accepted accounting principles set forth from time to time in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board (or agencies with similar functions of comparable stature and authority within the U.S.  accounting profession) and the Securities and Exchange Commission, which are applicable to the circumstances as of the date of determination.

“Hazardous Substances”:  (a) Any petroleum or petroleum products, radioactive materials, asbestos in any form that is or could become friable, urea formaldehyde foam insulation, dielectric fluid containing levels of polychlorinated biphenyls, radon gas and mold; (b) any chemicals, materials, pollutant or substances defined as or included in the definition of “hazardous substances”, “hazardous waste”, “hazardous materials”, “extremely hazardous substances”, “restricted hazardous waste”, “toxic substances”, “toxic pollutants”, “contaminants”, “pollutants” or words of similar import, under any applicable Environmental Law; and (c) any other chemical, material or substance, the exposure to, or release of which is prohibited, limited or regulated by any governmental authority or for which any duty or standard of care is imposed pursuant to, any Environmental Law.

“Hedging Agreement”:  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”:  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.

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“Interest Period”:  As to any Fixed Rate Loan, the period commencing on the date such Loan is borrowed or continued as, or converted into, a Fixed Rate Loan and ending on a date one, two, three or four years thereafter as selected in writing by the Company.  As to any LIBOR Loan, the period commencing on the date such Loan is borrowed or continued as, or converted into, a LIBOR Loan and ending on the date one, two or three months thereafter as selected by the Company pursuant to Section 2.2.2 or 2.2.3, as the case may be; provided that:

(a)if any Interest Period would otherwise end on a day that is not a Business Day, such Interest Period shall be extended to the following Business Day unless the result of such extension would be to carry such Interest Period into another calendar month, in which event such Interest Period shall end on the preceding Business Day;

(b)any Interest Period that begins on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period shall end on the last Business Day of the calendar month at the end of such Interest Period; and

(c)the Company may not select any Interest Period for a Loan which would extend beyond the scheduled Termination Date.

“Inventory”:  As defined in the UCC.

“Investment”:  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.

“L/C Advance”:  With respect to each Lender, such Lender’s funding of its participation in any L/C Borrowing in accordance with its Applicable Percentage.

“L/C Application”:  With respect to any request for the issuance of a Letter of Credit, a letter of credit application in the form being used by the L/C Issuer at the time of such request for the type of letter of credit requested.

“L/C Borrowing”:  An extension of credit resulting from a drawing under any Letter of Credit that has not been reimbursed on the date when made or refinanced as a Base Rate Loan in accordance with Section 2.3.2(a) and Section 2.3.2(b).

“L/C Credit Extension”:  With respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the increase of the amount thereof.

“L/C Fee Rate”:  A rate per annum of 2.75%.

“L/C Issuer”:  PrivateBank, in its capacity as the issuer of Letters of Credit hereunder, or any Affiliate of PrivateBank that may from time to time issue Letters of Credit, or any other financial institution that PrivateBank may cause to issue Letters of Credit for the account of Company, and their successors and assigns in such capacity.

“L/C Obligations”:  As at any date of determination, the aggregate amount available to be drawn under all outstanding Letters of Credit plus the aggregate of all Unreimbursed Amounts,

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including all Letters of Credit.  For purposes of computing the amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.3.  For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.

“Lender”:  As defined in the Preamble and including the Loan Index Lender.  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.

“Letter of Credit”:  As defined in Section 2.1.2.

“LIBOR Loan”:  Any Loan which bears interest at a rate determined by reference to the LIBOR Rate.

“LIBOR Office”:  The office or offices of any Lender which shall be making or maintaining the LIBOR Loans.  A LIBOR Office may be, at the option of such Lender, either a domestic or foreign office.

“LIBOR Rate”:  For any Interest Period for a LIBOR Loan, a rate of interest equal to (a) the per annum rate of interest at which United States dollar deposits for a period equal to the relevant Interest Period are offered in the London Interbank Eurodollar market at 11:00 A.M. (London time) two (2) Business Days prior to the commencement of such Interest Period (or three (3) Business Days prior to the commencement of such Interest Period if banks in London, England were not open and dealing in offshore United States dollars on such second preceding Business Day), as displayed in the Bloomberg Financial Markets system (or other authoritative source selected by the Administrative Agent in its sole discretion), divided by (b) a number determined by subtracting from 1.00 the then stated maximum reserve percentage for determining reserves to be maintained by member banks of the Federal Reserve System for Eurocurrency funding or liabilities as defined in Regulation D (or any successor category of liabilities under Regulation D), or as LIBOR is otherwise determined by the Administrative Agent in its sole and absolute discretion.  The Administrative Agent ‘s determination of the LIBOR Rate shall be conclusive, absent manifest error and shall remain fixed during such Interest Period.  The Lenders may lend to their customers at rates that are at, above, or below the LIBOR Rate.

“Lien”:  With respect to any Person, any interest in any real or personal property, asset or other right owned or being purchased or acquired by such Person (including an interest in respect of a Capital Lease) which secures payment or performance of any obligation and shall include any mortgage, lien, encumbrance, title retention lien, charge or other security interest of any kind, whether arising by contract, as a matter of law, by judicial process or otherwise.

“Loan”:  An extension of credit by a Lender to a Loan Party in the form of a revolving loan pursuant to Section 2.1.1.

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“Loan Availability”:  The lesser of (i) the Aggregate Commitments and (ii) the Borrowing Base.

“Loan Documents”:  This Agreement, the Notes, the Letters of Credit, the Master Letter of Credit Agreement, the L/C Applications, the Collateral Documents, the Subordination Agreements and all documents, instruments and agreements delivered in connection with the foregoing, as they may be amended, modified, supplemented, restated or replaced from time to time.

“Loan Index Lender”:  PrivateBank.

“Loan Index Rate”:  The fixed rate per annum provided from time to time by the Loan Index Lender in its sole discretion based on its internal “loan index” and made available by the Loan Index Lender at the Company’s request, which rate shall be fixed for a period equal to the relevant Interest Period; provided that the Loan Index Rate shall be not less than U.S. Treasury rates fixed for substantially similar periods.  The Lenders may lend to their customers at rates that are at, above, or below the Loan Index Rate.

“Loan Parties”:  As defined in the Preamble.

“Loan or Loans”:  The revolving loan(s) made by the Lenders to the Loan Parties under this Agreement.

“Margin Stock”:  Any “margin stock” as defined in Regulation U.

“Master Letter of Credit Agreement”:  At any time, with respect to the issuance of Letters of Credit, a master letter of credit agreement or reimbursement agreement in the form, if any, being used by the L/C Issuer at such time.

“Material Adverse Effect”:  (a) A material adverse change in, or a material adverse effect upon, the financial condition, operations, assets, business, properties or prospects of the Loan Parties taken as a whole, (b) a material impairment of the ability of any Loan Party to perform any of the Obligations under any Loan Document or (c) a 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 Loan Party of any Loan Document.

“Multiemployer Pension Plan”:  A multiemployer plan, as defined in Section 4001(a)(3) of ERISA, to which the Company or any other member of the Controlled Group may have any liability.

“Net Cash Proceeds”:  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

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repayment of any Debt secured by a Lien on the asset subject to such Asset Disposition (other than the Loans).

“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, as they may be amended, modified, supplemented, restated or replaced from time to time, or any one or more of them.

“Notice of Borrowing”:  As defined in Section 2.2.2.

“Notice of Conversion/Continuation”:  As defined in Section 2.2.3.

“Obligations”:  All obligations (monetary (including post-petition interest, allowed or not) or otherwise) of any Loan Party under this Agreement and any other Loan Document including Attorney Costs and any reimbursement obligations of each Loan Party in respect of Letters of Credit and surety bonds, all Hedging Obligations permitted hereunder which are owed to any Lender or its Affiliates, and all Bank Products Obligations, all in each case howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, now or hereafter existing, or due or to become due.

“OFAC”:  As defined in Section 9.24.

“Operating Lease”:  Any lease of (or other agreement conveying the right to use) any real or personal property by any Loan Party, as lessee, other than any Capital Lease.

“Outstandings”:  At any time, the sum of (a) the aggregate principal amount of all outstanding 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.

“PBGC”:  The Pension Benefit Guaranty Corporation and any entity succeeding to any or all of its functions under ERISA.

“Pension Plan”:  A “pension plan”, as such term is defined in Section 3(2) of ERISA, which is subject to Title IV 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”:  Any natural person, corporation, partnership, trust, limited liability company, association, governmental authority or unit, or any other entity, whether acting in an individual, fiduciary or other capacity.

“Pledge Agreement”:  Each Pledge Agreement executed and delivered by a Loan Party to the Agent, as they may be amended, modified, supplemented, restated or replaced from time to time, or any one or more of them.

“Prime Rate”:  For any day, the rate of interest in effect for such day as publicly announced from time to time by Agent as its prime rate (whether or not such rate is actually

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charged by Agent), which is not intended to be Agent’s lowest or most favorable rate of interest at any one time.  Any change in the Prime Rate announced by Agent shall take effect at the opening of business on the day specified in the public announcement of such change; provided that Agent shall not be obligated to give notice of any change in the Prime Rate.

“PrivateBank”:  As defined in the Preamble.

“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 by (ii) the aggregate unpaid principal amount of all Outstandings.

“Regulation D”:  Regulation D of the FRB.

“Regulation U”:  Regulation U of the FRB.

“Related Parties”:  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.

“Reportable Event”:  A reportable event as defined in Section 4043 of ERISA and the regulations issued thereunder as to which the PBGC has not waived the notification requirement of Section 4043(a), or the failure of a Pension Plan to meet the minimum funding standards of Section 412 of the Code (without regard to whether the Pension Plan is a plan described in Section 4021(a)(2) of ERISA) or under Section 302 of ERISA.

“Required Lenders”:  Required Lenders shall mean all Lenders; provided that any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders.

“SEC”:  The Securities and Exchange Commission or any other governmental authority succeeding to any of the principal functions thereof.

“Security Agreement”:  Each Security Agreement executed and delivered by a Loan Party to the Agent, as they may be amended, modified, supplemented, restated or replaced from time to time, or any one or more of them.

“Senior Debt”:  All Debt of the Company and its Subsidiaries other than Subordinated Debt.

“Senior Officer”:  With respect to any Loan Party, any of the chief executive officer, the president, the chief operating officer or the treasurer of such Loan Party.

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“Stated Amount”:  With respect to any Letter of Credit at any date of determination, (a) the maximum aggregate amount available for drawing thereunder under any and all circumstances plus (b) the aggregate amount of all unreimbursed payments and disbursements under such Letter of Credit.

“Subordinated Debt”:  The Unsecured Notes and any other unsecured Debt of the Company which has subordination terms, covenants, pricing and other terms which have been approved in writing by the Required Lenders.

“Subordinated Debt Documents”:  The Unsecured Note Documents and all other documents and instruments relating to the Subordinated Debt and all amendments and modifications thereof approved by the Required Lenders.

“Subordination Agreements”:  The provisions of the Unsecured Note Documents in favor or for the benefit of the “Senior Debt” as defined therein and all other subordination agreements executed by a holder of Subordinated Debt in favor of Agent, for the ratable benefit of Agent and the Lenders, from time to time after the Closing Date.

“Subsidiary”:  With respect to any Person, a corporation, partnership, limited liability company or other entity of which such Person owns, directly or indirectly, such number of outstanding Capital Securities as have more than 50% of the ordinary voting power for the election of directors or other managers of such corporation, partnership, limited liability company or other entity.  Unless the context otherwise requires, each reference to Subsidiaries herein shall be a reference to Subsidiaries of the Company.

“Tangible Net Worth”:  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 Agent), minus Investments in non-public companies net of cash dividends received in respect of such Investments.

“Taxes”:  Any and all present and future taxes, duties, levies, imposts, deductions, assessments, charges or withholdings, and any and all liabilities (including interest and penalties and other additions to taxes) with respect to the foregoing, but excluding Excluded Taxes.

“Termination Date”:  The earlier to occur of (a) July 31, 2014, or (b) such other date on which the Commitment terminates pursuant to Section 13.

“Termination Event”:  With respect to a Pension Plan that is subject to Title IV of ERISA, (a) a Reportable Event, (b) the withdrawal of Company or any other member of the Controlled Group from such Pension Plan during a plan year in which Company or any other member of the Controlled Group was a “substantial employer” as defined in Section 4001(a)(2) of ERISA or was deemed such under Section 4068(f) of ERISA, (c) the termination of such Pension Plan, the filing of a notice of intent to terminate the Pension Plan or the treatment of an amendment of such Pension Plan as a termination under Section 4041 of ERISA, (d) the institution by the PBGC of proceedings to terminate such Pension Plan or (e) any event or

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condition that might constitute grounds under Section 4042 of ERISA for the termination of, or appointment of a trustee to administer, such Pension Plan.

“Total Plan Liability”:  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.

“type”:  As defined in Section 2.2.1.

“UCC”:  As defined in the Security Agreement.

“Unfunded Liability”:  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.

“Unmatured Event of Default”:  Any event that, if it continues uncured, will, with lapse of time or notice or both, constitute an Event of Default.

“Unreimbursed Amount”:  As defined in Section 2.3.2(a).

“Unsecured Note Documents”:  The Unsecured Notes, the Unsecured Note Registration Statement, the Unsecured Note Indenture, the Unsecured Note Prospectus and each other agreement relating to the Unsecured Notes.

“Unsecured Note Indenture”:  That certain Indenture dated June 14, 2006 by and between the Company, as obligor, and Wells Fargo Bank, National Association, as trustee.

“Unsecured Note Prospectus”:  That certain Prospectus of the Company dated June 14, 2006 relating to the Unsecured Notes and included as part of the Unsecured Note Registration Statement.

“Unsecured Note Registration Statement”:  The Company’s registration statement in respect of the Unsecured Notes on Form S-1, declared effective by the Securities and Exchange Commission on or about June 14, 2006.

“Unsecured Notes”:  The renewable unsecured subordinated notes of the Company issued under the Unsecured Note Indenture pursuant to the Unsecured Note Registration Statement.

“Wholly-Owned Subsidiary”:  As to any Person, a Subsidiary all of the Capital Securities of which (except directors’ qualifying Capital Securities) are at the time directly or indirectly owned by such Person and/or another Wholly-Owned Subsidiary of such Person.

1.2Other Interpretive Provisions.

(a)The meanings of defined terms are equally applicable to the singular and plural forms of the defined terms.

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(b)Section, Annex, Schedule and Exhibit references are to this Agreement unless otherwise specified.

(c)The term “including” is not limiting and means “including without limitation.”

(d)In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including”; the words “to” and “until” each mean “to but excluding”, and the word “through” means “to and including.”

(e)Unless otherwise expressly provided herein, (i) references to agreements (including this Agreement and the other Loan Documents) and other contractual instruments shall be deemed to include all subsequent amendments, restatements, supplements and other modifications thereto, but only to the extent such amendments, restatements, supplements and other modifications are not prohibited by the terms of any Loan Document, and (ii) references to any statute or regulation shall be construed as including all statutory and regulatory provisions amending, replacing, supplementing or interpreting such statute or regulation.

(f)This Agreement and the other Loan Documents may use several different limitations, tests or measurements to regulate the same or similar matters.  All such limitations, tests and measurements are cumulative and each shall be performed in accordance with its terms.

(g)This Agreement and the other Loan Documents are the result of negotiations among and have been reviewed by counsel to Agent, the Company, each Lender and the other parties thereto and are the products of all parties.  Accordingly, they shall not be construed against Agent merely because of Agent’s involvement in their preparation.

1.3Letter of Credit Amounts.  Unless otherwise specified herein the amount of a Letter of Credit at any time shall be deemed to be the stated amount of such Letter of Credit in effect at such time; provided, however, that with respect to any Letter of Credit that, by its terms or the terms of any L/C Application or Master Letter of Credit Agreement related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the maximum stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.

SECTION 2COMMITMENTS OF THE LENDERS; BORROWING, CONVERSION AND LETTER OF CREDIT PROCEDURES.

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:

2.1.1Loan Commitment.  Each Lender severally agrees to make Loans on a revolving basis 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 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 Commitment.  Within the limits of each Lender’s Commitment, and subject to the other terms and

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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.

2.1.2L/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.

2.2Loan Procedures.

2.2.1Various Types of Loans.  Each Loan shall be divided into tranches which are either a Base Rate Loan, a LIBOR Loan or a Fixed Rate Loan (each, a “type” of Loan), as the Company shall specify in the related Notice of Borrowing or conversion pursuant to Section 2.2.2 or 2.2.3.  Base Rate Loans, LIBOR Loans and Fixed Rate Loans may be outstanding at the same time, provided that (i) no more than eight (8) different LIBOR Loans shall be outstanding at any one time, and (ii) no more than eight (8) different Fixed Rate Loans shall be outstanding at any one time.

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 or a Fixed Rate Loan, 11:00 A.M., Minneapolis time, on the proposed date of such borrowing, and (b) in the case of a LIBOR 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, (i) in the case of a LIBOR Loan, the initial Interest Period therefor, and (ii) in the case of a Fixed Rate Loan, the initial Interest Period therefor as well as an amortization schedule reflecting equal monthly payments over the life of such Fixed Rate Loan over the Interest Period therefor commencing on the same date of the next month following the borrowing (or such other method of amortization approved in writing by the Agent prior to the commencement of the 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 LIBOR Loan shall be in an aggregate amount of at least $500,000 or a higher integral multiple of $100,000.  Each Fixed Rate Loan shall be in an aggregate amount of at least $200,000 or a higher integral multiple of $100,000.

(b)Following receipt of a Notice of Borrowing, Agent shall promptly notify each Lender of the amount of its Applicable Percentage of the applicable Loans.  Each Lender shall make the amount of its 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

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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 PrivateBank 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 Loans (or any part thereof in an aggregate amount not less than $100,000 or a higher integral multiple of $100,000) into Loans of the other type; or

(ii)elect, as of the last day of the applicable Interest Period, to continue any LIBOR Loans having 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 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 LIBOR 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 Loans to be converted or continued;

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

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

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

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(d)Any conversion of a LIBOR Loan on a day other than the last date of an Interest Period therefor shall be subject to Section 8.4 and any conversion of a Fixed Rate Loan on a day other than the last date of an Interest Period therefor shall be subject to Section 5.2(b).

(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.

2.3Letter of Credit Procedures.

2.3.1L/C Applications.  The Loan Parties shall execute and deliver to the L/C Issuer the Master Letter of Credit Agreement from time to time in effect.  The Company shall give notice to the L/C Issuer (with a copy to the Agent) of the proposed issuance of each Letter of Credit on a Business Day which is at least three Business Days (or such lesser number of days as the Lender shall agree in any particular instance in its sole discretion) prior to the proposed date of issuance of such Letter of Credit.  Each such notice shall be accompanied by an L/C Application, duly executed by the Company and in all respects satisfactory to the L/C Issuer, together with such other documentation as the L/C Issuer may request in support thereof, it being understood that each L/C Application shall specify, among other things, the date on which the proposed Letter of Credit is to be issued, the expiration date of such Letter of Credit (which shall not be later than the earlier of thirty (30) days prior to (i) one year after the date of issuance thereof and (ii) the scheduled Termination Date (unless such Letter of Credit is Cash Collateralized); provided, a Letter of Credit with an expiration date of one year may provide for renewal thereof in additional one-year periods, subject to the preceding clause (ii)) and whether such Letter of Credit is to be transferable in whole or in part.  So long as the L/C Issuer has not received written notice from Agent, any Lender or any Loan Party that the conditions precedent set forth in Section 12 with respect to the issuance of such Letter of Credit have not been satisfied, the L/C Issuer shall issue such Letter of Credit on the requested issuance date.  In the event of any inconsistency between the terms of the Master Letter of Credit Agreement, any L/C Application and the terms of this Agreement, the terms of this Agreement shall control.

2.3.2Reimbursement Obligations; Fundings of Participations.

(a)The L/C Issuer shall notify the Company and Agent whenever any demand for payment is made under any Letter of Credit by the beneficiary thereunder; provided that the failure of the L/C Issuer to so notify the Company or Agent shall not affect the rights of the L/C Issuer or the Lenders in any manner whatsoever.  Not later than 11:00 a.m.  Minneapolis time on the date of any payment or disbursement by the L/C Issuer under a Letter of Credit (the “Honor Date”), each Loan Party, jointly and severally, hereby unconditionally and irrevocably agrees to reimburse the L/C Issuer through Agent for each such payment or disbursement.  If the Loan Parties fail to so reimburse the L/C Issuer by such time, Agent shall promptly notify each Lender of the Honor Date, the amount of the unreimbursed drawing or disbursement (the “Unreimbursed

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Amount”), and the amount of the Lender’s Applicable Percentage thereof.  In such event, the Company shall be deemed to have requested a borrowing of Base Rate Loans to be disbursed on the Honor Date in an amount equal to the Unreimbursed Amount, without regard to the minimum and multiples specified in Section 2.2 for the principal amount of Base Rate Loans, but subject to the amount of the unutilized portion of the Aggregate Commitments and satisfaction of the conditions set forth in Section 12.2.  Any notice given by the L/C Issuer or Agent pursuant to this Section 2.3.2(a) may be given by telephone if immediately confirmed in writing; provided that the lack of such immediate confirmation shall not affect the conclusiveness of binding effect of such notice.

(b)Each Lender shall upon any notice pursuant to Section 2.3.2(a) make funds available to Agent for the account of the L/C Issuer at Administrative Agent’s Office in an amount equal to its Applicable Percentage of the Unreimbursed Amount not later than 1:00 p.m.  on the Business Day specified in such notice by Agent, whereupon, subject to the provisions of Section 2.3.2(c), each Lender that so makes funds available shall be deemed to have made a Base Rate Loan to the Company in such amount.  Agent shall remit the funds so received to the L/C Issuer.

(c)With respect to any Unreimbursed Amount that is not fully refinanced by a borrowing of Base Rate Loans because the conditions set forth in Section 12.2 cannot be satisfied or for any other reason, the Loan Parties shall be deemed to have incurred from the L/C Issuer an L/C Borrowing in the amount of the Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be due and payable on demand (together with interest) and shall bear interest at the Default Rate.  In such event, each Lender’s payment to Agent for the account of the L/C Issuer pursuant to Section 2.3.2(b) shall be deemed payment in respect of its participation in such L/C Borrowing and shall constitute an L/C Advance from such Lender in satisfaction of its participation obligation under this Section 2.3.2.

(d)Until each Lender funds its Loan or L/C Advance pursuant to this Section 2.3.2 to reimburse the L/C Issuer for any amount drawn under any Letter of Credit, interest in respect of such Lender’s Applicable Percentage of such amount shall be solely for the account of the L/C Issuer.

(e)Each Lender’s obligation to make Loans or L/C Advances to reimburse the L/C Issuer for amounts drawn under Letters of Credit, as contemplated by this Section 2.3.2, shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against the L/C Issuer, the Company, any other Loan Party or any other Person for any reason whatsoever; (B) the occurrence or continuance of an Unmatured Event of Default or an Event of Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided, however, that each Lender’s obligation to make Loans pursuant to this Section 2.3.2 is subject to the conditions set forth in Section 12.2.  No such making of an L/C Advance shall relieve or otherwise impair the obligation of the Loan Parties to reimburse the L/C Issuer for the amount of any payment made by the L/C Issuer under any Letter of Credit, together with interest as provided herein.

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(f)If any Lender fails to make available to Agent for the account of the L/C Issuer any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.3.2 by the time specified in Section 2.3.2(b), the L/C Issuer shall be entitled to recover from such Lender (acting through Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the L/C Issuer at a rate per annum equal to the greater of the Federal Funds Rate and a rate determined by the L/C issuer in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the L/C Issuer in connection with the foregoing.  If such Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Lender’s Loan included in the relevant borrowing or L/C Advance in respect of the relevant L/C Borrowing, as the case may be.  A certificate of the L/C Issuer submitted to any Lender (through Agent) with respect to any amounts owing under this clause (f) shall be conclusive absent manifest error.

2.3.3Repayment of Participations.

(a)At any time after the L/C Issuer has made a payment under any Letter of Credit and has received from any Lender such Lender’s L/C Advance in respect of such payment in accordance with Section 2.3.2, if Agent receives for the account of the L/C Issuer any payment in respect of the related Unreimbursed Amount or interest thereon (whether directly from any Loan Party or otherwise, including proceeds of Cash Collateral applied thereto by Agent), Agent will distribute to such Lender its Applicable Percentage thereof in the same funds as those received by Agent.

(b)If any payment received by Agent for the account of the L/C Issuer pursuant to Section 2.3.2(a) is required to be returned under any of the circumstances described in Section 16.6 (including pursuant to any settlement entered into by the L/C Issuer in its discretion), each Lender shall pay to Agent for the account of the L/C Issuer its Applicable Percentage thereof on demand of Agent, plus interest thereon from the date of such demand to the date such amount is returned by such Lender, at a rate per annum equal to the Federal Funds Rate from time to time in effect.  The obligations of the Lenders under this clause shall survive the payment in full of the Obligations and the termination of this Agreement.

2.3.4Obligations Absolute.  The Loan Parties’ reimbursement obligations hereunder shall be irrevocable and unconditional under all circumstances, including (i) any lack of validity or enforceability of any Letter of Credit, this Agreement or any other Loan Document, (ii) the existence of any claim, set-off, defense or other right which any Loan Party may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the L/C Issuer, Agent, any Lender or any other Person, whether in connection with any Letter of Credit, this Agreement, any other Loan Document, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between any Loan Party and the beneficiary named in any Letter of Credit), (iii) the validity, sufficiency or genuineness of any document which the L/C Issuer has determined complies on its face with the terms of the applicable Letter of Credit, even if such document should later prove to have been forged, fraudulent, invalid or insufficient in any respect or any statement therein shall have been untrue or inaccurate in any

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respect, or (iv) the surrender or impairment of any security for the performance or observance of any of the terms hereof.

2.3.5Role of L/C Issuer.  Each Lender and each Loan Party agree that, in paying any drawing under a Letter of Credit, the L/C Issuer shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document.  None of the L/C Issuer, Agent, any of their respective Related Parties nor any correspondent, participant or assignee of the L/C Issuer shall be liable to any Lender for (i) any action taken or omitted in connection herewith at the request or with the approval of the Lenders or the Required Lenders, as applicable; (ii) any action taken or omitted in the absence of gross negligence or willful misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or L/C Issuer document.  The Company and each other Loan Party hereby assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided, however, that this assumption is not intended to, and shall not, preclude the Company’s (or any Loan Party) pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement.  None of the L/C Issuer, Agent, any of their respective Related Parties nor any correspondent, participant or assignee of the L/C Issuer, shall be liable or responsible for any of the matters described in clauses (i) through (iv) of Section 2.3.4; provided, however, that anything in such clauses to the contrary notwithstanding, the Company may have a claim against the L/C Issuer, and the L/C Issuer may be liable to the Company, to the extent, but only to the extent, of any direct, as opposed to consequential or exemplary, damages suffered by the Company which the Company proves were caused by the L/C Issuer’s willful misconduct or gross negligence or the L/C Issuer’s willful failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of a Letter of Credit.  In furtherance and not in limitation of the foregoing, the L/C Issuer may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and the L/C Issuer shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason.

2.3.6Cash Collateral.  Upon the request of Agent, (i) if the L/C Issuer has honored any full or partial drawing request under any Letter of Credit and such drawing has resulted in an L/C Borrowing, or (ii) if, as of the L/C Expiration Date, any L/C Obligation for any reason remains outstanding, the Company shall, in each case, immediately Cash Collateralize the then outstanding amount of all L/C Obligations (including any fees then due and owing).  Sections 2.3.1, 6.1.2 and 13.2 set forth certain additional requirements to deliver Cash Collateral hereunder.  The Company and each Loan Party hereby grants to Agent, for the benefit of the L/C Issuer and the Lenders, a security interest in all such cash, deposit accounts and all balances therein and all

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proceeds of the foregoing.  Cash Collateral shall be maintained in blocked, non-interest bearing deposit accounts at PrivateBank.

2.3.7Applicability of ISP and UCP.  Unless otherwise expressly agreed by the L/C Issuer and the Company when a Letter of Credit is issued, (i) the rules of the ISP shall apply to each standby Letter of Credit, and (ii) the rules of the Uniform Customs and Practice for Documentary Credits, as most recently published by the International Chamber of Commerce (the “ICC”) at the time of issuance shall apply to each commercial Letter of Credit.

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 LIBOR Loan, or to issue any Letter of Credit, if an Event of Default or Unmatured Event of Default exists.

2.5Defaulting Lenders.  Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:

2.5.1if any L/C Obligations are outstanding at the time a Lender becomes a Defaulting Lender then:

(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 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

(b)if the obligation to participate in L/C Obligations of the non-Defaulting Lenders is reallocated pursuant to Section 2.5.1, then the fees payable to the Lenders pursuant to Section 5.1 shall be adjusted in accordance with such non-Defaulting Lenders’ Pro Rata Shares (as determined pursuant to the definition of “Pro Rata Share”); or

(c)if any Defaulting Lender’s obligation to participate in L/C Obligations is not reallocated pursuant to Section 2.5.1, then, without prejudice to any rights or remedies of any L/C Issuer or any Lender hereunder, all letter of credit fees payable under Section 5.1 with respect to such Defaulting Lender’s obligation to participate in L/C Obligations shall be payable to the applicable L/C Issuer until such obligation to participate in L/C Obligations is reallocated; and

2.5.2So long as any Lender is a Defaulting Lender, no L/C Issuer shall be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Lenders in accordance with Section 2.5.1, and participating interests in any such newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a

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manner consistent with Section 2.5.1(a) (and Defaulting Lenders shall not participate therein).

2.5.3In the event that the Administrative Agent and the Company each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the obligations to participate in L/C Obligations of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Pro Rata Share (as determined pursuant to the definition of “Pro Rata Share”).

2.5.4Any amount payable to a Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise) shall, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a segregated account and, subject to any applicable requirements of law, be applied at such time or times as may be determined by the Administrative Agent (i) first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to the L/C Issuer(s) hereunder, (iii) third, if so determined by the Administrative Agent and the Company, held in such account as cash collateral for future funding obligations of the Defaulting Lender under this Agreement, (iv) fourth, pro rata, to the payment of any amounts owing to the Company or the Lenders as a result of any judgment of a court of competent jurisdiction obtained by the Company or any Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (v) fifth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided, that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of draws under Letters of Credit with respect to which the L/C Issuer has funded its participation obligations and (y) made at a time when the conditions set forth in Section 12.2 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all Lenders that are not Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender.

To the extent of any conflicts between this Section 2.5 and Section 7.2, the provisions of this Section 2.5 shall control.

2.6Increase in Commitments.

2.6.1Request for Increase.  Provided that there exists no Unmatured Event of Default or Event of Default, upon notice to the Administrative Agent (which shall promptly notify the Lenders), the Company may from time to time, request an increase in the Aggregate Commitments by an amount (for all such requests) not exceeding $10,000,000; provided that any such request for an increase shall be in a minimum amount of $2,500,000.  At the time of sending such notice, the Company (in consultation with the Administrative Agent) shall specify the time period within which each Lender is

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requested to respond (which shall in no event be less than fifteen Business Days from the date of delivery of such notice to the Lenders).

2.6.2Lender Elections to Increase.  Each Lender shall notify the Administrative Agent within such time period whether or not it agrees to increase its Commitment and, if so, whether by an amount equal to, greater than, or less than its Applicable Percentage of such requested increase.  Any Lender not responding within such time period shall be deemed to have declined to increase its Commitment.

2.6.3Notification by Administrative Agent; Additional Lenders.  The Administrative Agent shall notify the Company and each Lender of the Lenders’ responses to each request made hereunder.  To achieve the full amount of a requested increase and subject to the approval of the Administrative Agent and the L/C Issuer (which approvals shall not be unreasonably withheld), the Company may also invite additional Eligible Assignees to become Lenders pursuant to a joinder agreement in form and substance satisfactory to the Administrative Agent and its counsel.

2.6.4Effective Date and Allocations.  If the Aggregate Commitments are increased in accordance with this Section, the Administrative Agent and the Company shall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase.  The Administrative Agent shall promptly notify the Company and the Lenders of the final allocation of such increase and the Increase Effective Date, and the Lenders shall make such transfers and take such further action to the extent necessary to keep the outstanding Loans ratable with any revised Applicable Percentages arising from any nonratable increase in the Commitments under this Section 2.6.  For the avoidance of doubt, any Loans made and Letters of Credit issued following the Increase Effective Date and utilizing any increase in the Aggregate Commitments shall constitute Obligations for all purposes of the Loan Documents.

2.6.5Conditions to Effectiveness of Increase.  As a condition precedent to such increase, the Company shall deliver to the Administrative Agent a certificate of each Loan Party dated as of the Increase Effective Date (in sufficient copies for each Lender) signed by a Senior Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (ii) in the case of the Company, certifying that, before and after giving effect to such increase, (A) the representations and warranties contained in Section 9 and the other Loan Documents are true and correct on and as of the Increase Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct as of such earlier date, and except that for purposes of this Section 2.6, the representations and warranties contained in Sections 9.4 and 9.5 shall be deemed to refer to the most recent statements furnished pursuant to Section 10.1, and (B) no Unmatured Event of Default or Event of Default exists.

2.6.6Conflicting Provisions.  To the extent of any conflicts between this Section 2.6 and Section 16.1, the provisions of this Section 2.6 shall control.

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SECTION 3EVIDENCING OF LOANS.

3.1Notes.  The 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 Commitment.

3.2Recordkeeping.  Each Lender shall record in its records, the date and amount of each Loan made by such Lender, each repayment or conversion thereof, the purchases and sales by such Lender of participations in Letters of Credit and, in the case of each LIBOR Loan and each Fixed Rate Loan, the dates on which each Interest Period for such Loan shall begin and end.  The aggregate unpaid principal amount so recorded shall be rebuttably presumptive evidence of the principal amount of the Loans owing and unpaid to such Lender.  The failure to so record any such amount or any error in so recording any such amount shall not, however, limit or otherwise affect the Obligations of the Loan Parties hereunder or under any Note to repay the principal amount of the Loans hereunder, together with all interest accruing thereon.

SECTION 4INTEREST.

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:

(a)at all times while such Loan is a Base Rate Loan, at a rate per annum equal to the sum of the Base Rate from time to time in effect plus the Applicable Margin; and

(b)at all times while such Loan is a LIBOR Loan, at a rate per annum equal to the sum of the LIBOR Rate applicable to each Interest Period for such Loan plus the Applicable Margin;

(c)at all times while such Loan is a Fixed Rate Loan, at a rate per annum equal to the sum of the Loan Index Rate applicable to each Interest Period for such Loan plus the Applicable Margin;

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 LIBOR Loan shall be payable on the last day of each Interest Period relating to such Loan, upon a prepayment of such Loan, and at maturity.  Accrued interest on each Fixed Rate Loan shall be payable on the same date as payments are made on the principal in accordance with the amortization schedule delivered pursuant to Section 2.2.2(a), upon a prepayment of such Loan, and at maturity.  After maturity, and at any time an Event of Default exists, accrued interest on all Loans shall be payable on demand.

4.3Setting and Notice of LIBOR Rates.  The applicable LIBOR Rate for each Interest Period shall be determined by Agent, and notice thereof shall be given by Agent promptly to the

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Company and the Lenders.  Each determination of the applicable LIBOR 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 LIBOR Rate hereunder.

4.4Computation of Interest.  Interest for LIBOR Loans and for Fixed Rate Loans shall be computed for the actual number of days elapsed on the basis of a year of 360 days.  Interest for Base Rate Loans shall be computed for the actual number of days elapsed in the applicable year.  The applicable interest rate for each Base Rate Loan shall change simultaneously with each change in the Base Rate.

SECTION 5FEES.

5.1Letter of Credit Fees.

(a)The Loan Parties, jointly and severally, agree to pay to the L/C Issuer a letter of credit fee for each Letter of Credit equal to the L/C Fee Rate of the Stated Amount of such Letter of Credit (computed for the actual number of days elapsed on the basis of a year of 360 days); provided that, unless the L/C Issuer otherwise consents, the rate applicable to each Letter of Credit shall be increased by 2% at any time that an Event of Default exists.  Such letter of credit fee shall be payable in arrears on the first day of each calendar month and on the Termination Date (or such later date on which such Letter of Credit expires or is terminated) for the period from the date of the issuance of each Letter of Credit (or the last day on which the letter of credit fee was paid with respect thereto) to the date such payment is due or, if earlier, the date on which such Letter of Credit expired or was terminated.

(b)In addition, with respect to each Letter of Credit, the Company agrees to pay to the L/C Issuer such fees and expenses as the L/C Issuer customarily requires in connection with the issuance, negotiation, processing and/or administration of letters of credit in similar situations, including a letter of credit fronting fee in the amount and at the times agreed to by the Company and the L/C Issuer.

5.2Other Fees.

(a)Non-Utilization Fee.  The Loan Parties, jointly and severally, agree to pay to each Lender a non-utilization fee equal to 0.25% of the total of (i) such Lender’s Commitment, minus (ii) the daily average of the aggregate principal amount of the Outstandings attributable to such Lender, which non-utilization fee shall be (X) calculated on the basis of a year consisting of 360 days, (Y) paid for the actual number of days elapsed, and (Z) payable quarterly in arrears on the last day of each calendar quarter and on the Termination Date.

(b)Fixed Rate Loan Prepayment Fee.  The Loan Parties, jointly and severally, agree to pay to the Agent (for the ratable benefit of the Lenders in accordance with their respective Pro Rata Shares), with respect to any prepayment made on a Fixed Rate Loan that is not in accordance with the applicable amortization schedule for such Fixed Rate Loan provided to and approved by Agent pursuant to Section 2.2.2 (other than partial prepayments permitted pursuant to Section 6.1.3), a prepayment fee equal to 1.0% of the aggregate outstanding principal balance of the Fixed Rate Loan to which such prepayment is applied.

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(c)Origination Fee.  The Loan Parties, jointly and severally, agree to pay to PrivateBank an origination fee equal to 0.30% of $30,000,000.  Such fee shall be due and payable upon the execution of this Agreement and shall be fully earned when paid and shall not be refundable for any reason whatsoever.

(d)Lender’s Fees.  The Loan Parties, jointly and severally, agree to pay to each Lender such other reasonable fees and expenses as are mutually agreed to from time to time by the Company and such Lender, including the fees required to be paid in accordance with Section 16.5(a).

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 Borrowing Base, the Loan Parties shall immediately prepay the 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.  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.

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 LIBOR Loan on a day other than the last day of an Interest Period therefor shall include interest on the principal amount being repaid and shall be subject to Section 8.4.  Any prepayment of a Fixed Rate Loan on a day other than the last day of an Interest Period therefor shall include interest on the principal amount being repaid and, if such prepayment is not a partial prepayment permitted pursuant to Section 2.2.2(a), shall be subject to Section 5.2(b).  Except as otherwise provided by this Agreement, all principal payments in respect of the Loans shall be applied first to repay outstanding Base Rate Loans, then to repay outstanding Fixed Rate Loans in direct order of Interest Period maturities and then to repay outstanding LIBOR Loans in direct order of Interest Period maturities.

6.2Repayments and Terminations.  The Loans shall be irrevocably paid in full in cash, and the Commitment shall terminate, on the Termination Date.

6.3Reduction of Aggregate 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

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the amount of the Aggregate 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 Aggregate Commitments below the Outstandings.

SECTION 7MAKING AND PRORATION OF PAYMENTS; SETOFF; TAXES.

7.1Payments Generally; Agent’s Clawback.

7.1.1General.  All payments to be made by the Loan Parties hereunder or any Loan Document shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff.  Except as otherwise expressly provided herein, all payments by the Loan Parties hereunder shall be made to Agent, for the account of the respective Lenders to which such payment is owed, at Administrative Agent’s Office in Dollars and in immediately available funds not later than 12:00 noon on the date specified herein.  Agent will promptly distribute to each Lender its Applicable Percentage (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s lending office.  All payments received by Agent after 12:00 noon shall be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.  If any payment to be made by any Loan Party shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be.

7.1.2Fundings by Lenders; Payments by Loan Parties.

(a)Unless Agent shall have received notice from a Lender prior to the proposed date of any borrowing of LIBOR Loans or Fixed Rate Loans (or, in the case of any borrowing of Base Rate Loans, prior to 12:00 noon on the date of such borrowing) that such Lender will not make available to Agent such Lender’s share of such borrowing, Agent may assume that such Lender has made such share available on such date in accordance with Section 2.2.2 (or, in the case of a borrowing of Base Rate Loans, that such Lender has made such share available in accordance with and at the time required by Section 2.2.2) and may, in reliance upon such assumption, make available to the Company a corresponding amount.  In such event, if a Lender has not in fact made its share of the applicable borrowing available to Agent, then the applicable Lender and the Loan Parties severally agree to pay to Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Company to but excluding the date of payment to Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate determined by Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by Agent in connection with the foregoing and (B) in the case of a payment to be made by the Loan Parties, the interest rate applicable to Base Rate Loans.  If the Loan Parties and such Lender shall pay such interest to Agent for the same or an overlapping period, Agent shall promptly remit to the Company the amount of such interest paid by the Loan Parties for such period.  If such Lender pays its share of the applicable borrowing to Agent, then the amount so paid shall constitute such Lender’s Loan included in such borrowing.  Any payment by the Loan Parties shall be without prejudice to any

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claim the Loan Parties may have against a Lender that shall have failed to make such payment to Agent.

(b)Unless Agent shall have received notice from the Company prior to the date on which any payment is due to Agent for the account of the Lenders or the L/C Issuer hereunder that a Loan Party will not make such payment, Agent may assume that a Loan Party has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the L/C Issuer, as the case may be, the amount due.  In such event, if a Loan Party has not in fact made such payment, then each of the Lenders or the L/C Issuer, as the case may be, severally agrees to repay to Agent forthwith on demand the amount so distributed to such Lender or the L/C Issuer, in immediately available funds with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to Agent, at the greater of the Federal Funds Rate and a rate determined by Agent in accordance with banking industry rules on interbank compensation.  A notice of Agent to any Lender or the Company with respect to any amount owing under this subsection (b) shall be conclusive, absent manifest error.

7.1.3Failure to Satisfy Conditions Precedent.  If any Lender makes available to Agent funds for any Loan to be made by such Lender as provided in the foregoing provisions of this Section 7.1, and such funds are not made available to the Company by Agent because the conditions to the applicable Loan set forth in Section 12 are not satisfied or waived in accordance with the terms hereof, Agent shall promptly and in any event within one Business Day return such funds (in like funds as received from such Lender) to such Lender, with interest at the Federal Funds Rate.

7.1.4Obligations of Lenders Several.  The obligations of the Lenders hereunder to make Loans, to fund participations in Letters of Credit and to make payments under Section 16.5(c) are several and not joint.  The failure of any Lender to make any Loan, to fund any such participation or to make any payment under Section 16.5(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, purchase its participation or to make its payment under Section 16.5(c).

7.2Sharing of Payments.  If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of the Loans made by it, or the participations in L/C Obligations held by it resulting in such Lender’s receiving payment of a proportion of the aggregate amount of such Loans or participations and accrued interest thereon greater than its pro rata share thereof as provided herein, then the Lender receiving such greater proportion shall (a) notify Agent of such fact, and (b) purchase (for cash at face value) participations in the Loans and subparticipations in L/C Obligations of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and other amounts owing them, provided that:

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(i)if any such participations or subparticipations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations or subparticipations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and

(ii)the provisions of this Section shall not be construed to apply to (x) any payment made by a Loan Party pursuant to and in accordance with the express terms of this Agreement or (y) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or subparticipations in L/C Obligations to any assignee or participant, other than to a Loan Party or any Subsidiary thereof (as to which the provisions of this Section shall apply).

Each Loan Party consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against such Loan Party rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of such Loan Party in the amount of such participation.

To the extent of any conflicts between this Section 7.2 and Section 2.5, the provisions of Section 2.5 shall control.

7.3Application of Certain Payments.  So long as no Unmatured Event of Default or Event of Default has occurred and is continuing, (a) payments matching specific scheduled payments then due shall be applied to those scheduled payments and (b) voluntary and mandatory prepayments shall be applied as set forth in Section 6.1.  After the occurrence and during the continuance of an Unmatured Event of Default or Event of Default, all amounts collected or received by the Administrative Agent as proceeds from the sale of, or other realization upon, all or any part of the collateral shall be applied in accordance with the provisions of Section 13.3.

7.4Due Date Extension.  If any payment of principal or interest with respect to any of the Loans, or of any fees, falls due on a day which is not a Business Day, then such due date shall be extended to the immediately following Business Day (unless, in the case of a LIBOR Loan, such immediately following Business Day is the first Business Day of a calendar month, in which case such due date shall be the immediately preceding Business Day) and, in the case of principal, additional interest shall accrue and be payable for the period of any such extension.

7.5Setoff.  Each Loan Party agrees that Agent, the L/C Issuer and each Lender has all rights of set-off and bankers’ lien provided by applicable law, and in addition thereto, each Loan Party agrees that at any time any Event of Default exists, Agent, the L/C Issuer or any Lender may apply to the payment of any Obligations of the Loan Parties hereunder, whether or not then due, any and all balances, credits, deposits, accounts or moneys of any Loan Party then or thereafter with Agent, the L/C Issuer or any Lender, as applicable.

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7.6Taxes.

(a)To the extent permitted by applicable law, all payments hereunder or under the Loan Documents (including any payment of principal, interest, or fees) to, or for the benefit, of any person shall be made by the Loan Parties free and clear of and without deduction or withholding for, or account of, any Taxes now or hereinafter imposed by any taxing authority.

(b)If a Loan Party makes any payment hereunder or under any Loan Document in respect of which it is required by applicable law to deduct or withhold any Taxes, such Loan Party shall increase the payment hereunder or under any such Loan Document such that after the reduction for the amount of Taxes withheld (and any taxes withheld or imposed with respect to the additional payments required under this Section 7.6(b)), the amount paid to the Lender equals the amount that was payable hereunder or under any such Loan Document without regard to this Section 7.6(b).  To the extent a Loan Party withholds any Taxes on payments hereunder or under any Loan Document, such Loan Party shall pay the full amount deducted to the relevant taxing authority within the time allowed for payment under applicable law and shall deliver to the affected Lender (with a copy to Agent) within 30 days after it has made payment to such authority a receipt issued by such authority (or other evidence satisfactory to the Lender) evidencing the payment of all amounts so required to be deducted or withheld from such payment.

(c)If any Lender is required by law to make any payments of any Taxes on or in relation to any amounts received or receivable hereunder or under any other Loan Document, or any Tax is assessed against any Lender with respect to amounts received or receivable hereunder or under any other Loan Document, the Loan Parties, jointly and severally, will indemnify such person against (i) such Tax (and any reasonable counsel fees and expenses associated with such Tax) and (ii) any taxes imposed as a result of the receipt of the payment under this Section 7.6(c).  A certificate prepared in good faith as to the amount of such payment by the Lender shall, absent manifest error, be final, conclusive, and binding on all parties.

SECTION 8INCREASED COSTS; SPECIAL PROVISIONS FOR LIBOR LOANS.

8.1Increased Costs.

(a)If, after the date hereof, the adoption of, or any change in, any applicable law, rule or regulation, or any change in the interpretation or administration of any applicable law, rule or regulation by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Lender with any request or directive (whether or not having the force of law) of any such authority, central bank or comparable agency:  (i) shall impose, modify or deem applicable any reserve (including any reserve imposed by the FRB, but excluding any reserve included in the determination of the LIBOR Rate pursuant to Section 4), special deposit or similar requirement against assets of, deposits with or for the account of, or credit extended by such Lender; or (ii) shall impose on such Lender any other condition affecting its LIBOR Loans, its Note or its obligation to make LIBOR Loans; and the result of anything described in clauses (i) and (ii) above is to increase the cost to (or to impose a cost on) such Lender (or any LIBOR Office of such Lender) of making or maintaining any LIBOR Loan, or to reduce the amount of any sum received or receivable by such Lender (or its LIBOR Office) under this Agreement or under its Note with respect thereto, then upon demand by such Lender (which demand shall be accompanied by a statement setting

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forth the basis for such demand and a calculation of the amount thereof in reasonable detail), the Loan Parties shall pay to such Lender such additional amount as will compensate such Lender for such increased cost or such reduction, so long as such amounts have accrued on or after the day which is 180 days prior to the date on which such Lender first made demand therefor.

(b)If any Lender shall reasonably determine that any change in, or the adoption or phase-in of, any applicable law, rule or regulation regarding capital adequacy of such Lender, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or the compliance by such Lender or any Person controlling such Lender with any request or directive regarding capital adequacy of such Lender (whether or not having the force of law) by any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender’s or such controlling Person’s capital as a consequence of such Lender’s obligations hereunder or under any Letter of Credit to a level below that which such Lender or such controlling Person could have achieved but for such change, adoption, phase-in or compliance (taking into consideration such Lender’s or such controlling Person’s policies with respect to capital adequacy of such Lender) by an amount deemed by such Lender or such controlling Person to be material, then from time to time, upon demand by such Lender (which demand shall be accompanied by a statement setting forth the basis for such demand and a calculation of the amount thereof in reasonable detail), the Loan Parties shall pay to such Lender such additional amount as will compensate such Lender or such controlling Person for such reduction so long as such amounts have accrued on or after the day which is 180 days prior to the date on which such Lender first made demand therefor.

8.2Basis for Determining Interest Rate Inadequate or Unfair.  If:

(a)any Lender reasonably determines (which determination shall be binding and conclusive on the Loan Parties) that by reason of circumstances affecting the interbank LIBOR market adequate and reasonable means do not exist for ascertaining the applicable LIBOR Rate; or

(b)any Lender reasonably determines that the LIBOR Rate will not adequately and fairly reflect the cost to such Lender of maintaining or funding LIBOR Loans for such Interest Period (taking into account any amount to which such Lender may be entitled under Section 8.1) or that the making or funding of LIBOR Loans has become impracticable as a result of an event occurring after the date of this Agreement which in the opinion of such Lender materially affects such Loans;

then such Lender shall promptly notify the Company thereof and, so long as such circumstances shall continue, (i) such Lender shall be under no obligation to make or convert any Base Rate Loans into LIBOR Loans and (ii) on the last day of the current Interest Period for each LIBOR Loan, such Loan shall, unless then repaid in full, automatically convert to a Base Rate Loan.

8.3Changes in Law Rendering LIBOR Loans Unlawful.  If any change in, or the adoption of any new, law or regulation, or any change in the interpretation of any applicable law or regulation by any governmental or other regulatory body charged with the administration thereof, should make it (or in the good faith judgment of any Lender cause a substantial question

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as to whether it is) unlawful for any Lender to make, maintain or fund LIBOR Loans, then such Lender shall promptly notify the Company and, so long as such circumstances shall continue, (a) such Lender shall have no obligation to make or convert any Base Rate Loan into a LIBOR Loan and (b) on the last day of the current Interest Period for each LIBOR Loan of such Lender (or, in any event, on such earlier date as may be required by the relevant law, regulation or interpretation), such LIBOR Loan shall, unless then repaid in full, automatically convert to a Base Rate Loan.  Each Base Rate Loan made by a Lender which, but for the circumstances described in the foregoing sentence, would be a LIBOR Loan (an “Affected Loan”) shall remain outstanding for the period which would be applicable to such Affected Loan absent such circumstances.

8.4Funding Losses.  The Loan Parties hereby agree that upon demand by any Lender (which demand shall be accompanied by a statement setting forth the basis for the amount being claimed), the Loan Parties will indemnify such Lender against any net loss or expense which such Lender may sustain or incur (including any net loss or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund or maintain any LIBOR Loan), as reasonably determined by such Lender, as a result of (a) any payment, prepayment or conversion of any LIBOR Loan of such Lender on a date other than the last day of an Interest Period for such Loan (including any conversion pursuant to Section 8.3) or (b) any failure of the Company or another Loan Party to borrow, convert or continue any Loan on a date specified therefor in a notice of borrowing, conversion or continuation pursuant to this Agreement.  For this purpose, all such notices to any Lender pursuant to this Agreement shall be deemed to be irrevocable.

8.5Right of the Lenders to Fund through Other Offices.  Each Lender may, if it so elects, fulfill its commitment as to any LIBOR Loan by causing a foreign branch or Affiliate of such Lender to make such Loan; provided that in such event for the purposes of this Agreement such Loan shall be deemed to have been made by such Lender and the obligation of the Company to repay such Loan shall nevertheless be to such Lender and shall be deemed held by it, to the extent of such Loan, for the account of such branch or Affiliate.

8.6Discretion of the Lenders as to Manner of Funding.  Notwithstanding any provision of this Agreement to the contrary, each Lender shall be entitled to fund and maintain its funding of all or any part of its Loans in any manner it sees fit, it being understood, however, that for the purposes of this Agreement all determinations hereunder shall be made as if such Lender had actually funded and maintained each LIBOR Loan during each Interest Period for such Loan through the purchase of deposits having a maturity corresponding to such Interest Period and bearing an interest rate equal to the LIBOR Rate for such Interest Period.

8.7Mitigation of Circumstances.  Each Lender shall promptly notify the Company of any event of which it has knowledge which will result in, and will use reasonable commercial efforts available to it (and not, in such Lender’s sole judgment, otherwise disadvantageous to such Lender) to mitigate or avoid, (i) any obligation by the Loan Parties to pay any amount pursuant to Section 7.6 or 8.1 or (ii) the occurrence of any circumstances described in Section 8.2 or 8.3 (and, if such Lender has given notice of any such event described in clause (i) or (ii) above and thereafter such event ceases to exist, such Lender shall promptly so notify the Company).  Without limiting the foregoing, each Lender will designate a different funding office

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if such designation will avoid (or reduce the cost to the Loan Parties of) any event described in clause (i) or (ii) above and such designation will not, in such Lender’s sole judgment, be otherwise disadvantageous to such Lender.

8.8Conclusiveness of Statements; Survival of Provisions.  Determinations and statements of any Lender pursuant to Section 8.1, 8.2, 8.3 or 8.4 shall be conclusive absent demonstrable error.  Each Lender may use reasonable averaging and attribution methods in determining compensation under Sections 8.1 and 8.4, and the provisions of such Sections shall survive repayment of the Obligations, cancellation of the Note, expiration or termination of the Letters of Credit and termination of this Agreement.

SECTION 9REPRESENTATIONS AND WARRANTIES.

To induce the Lenders to enter into this Agreement and to induce the Lenders to make Loans and/or issue Letters of Credit hereunder, each Loan Party represents and warrants to the Lenders that:

9.1Organization.  Each Loan Party is validly existing and in good standing under the laws of its jurisdiction of organization; and each Loan Party is duly qualified to do business in each jurisdiction where, because of the nature of its activities or properties, such qualification is required, except for such jurisdictions where the failure to so qualify would not have a Material Adverse Effect.

9.2Authorization; No Conflict.  Each Loan Party is duly authorized to execute and deliver each Loan Document to which it is a party, is duly authorized to borrow monies hereunder and is duly authorized to perform its Obligations under each Loan Document to which it is a party.  The execution, delivery and performance by each Loan Party of each Loan Document to which it is a party, and the borrowings by the Loan Parties hereunder, do not and will not (a) require any consent or approval of any governmental agency or authority (other than any consent or approval which has been obtained and is in full force and effect), (b) conflict with (i) any provision of law, (ii) the charter, by-laws or other organizational documents of any Loan Party or (iii) any agreement, indenture, instrument or other document, or any judgment, order or decree, which is binding upon any Loan Party or any of their respective properties or (c) require, or result in, the creation or imposition of any Lien on any asset of any Loan Party (other than Liens in favor of Agent, for the ratable benefit of Agent and the Lenders, created pursuant to the Collateral Documents).

9.3Validity and Binding Nature.  Each of this Agreement and each other Loan Document to which any Loan Party is a party is the legal, valid and binding obligation of such Person, enforceable against such Person in accordance with its terms, subject to bankruptcy, insolvency and similar laws affecting the enforceability of creditors’ rights generally and to general principles of equity.

9.4Financial Condition.  The audited consolidated financial statements of the Company and its Subsidiaries as at December 26, 2009 and the unaudited consolidated financial statements of the Company and the Subsidiaries as at May 29, 2010, copies of each of which have been delivered to Agent and each Lender, were prepared in accordance with GAAP

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(subject, in the case of such unaudited statements, to the absence of footnotes and to normal year-end adjustments) and present fairly the consolidated financial condition of the Company and its Subsidiaries as at such dates and the results of their operations for the periods then ended.

9.5No Material Adverse Change.  Since December 26, 2009, there has been no material adverse change in the financial condition, operations, assets, business, properties or prospects of the Loan Parties taken as a whole.

9.6Litigation and Contingent Liabilities.  No litigation (including derivative actions), arbitration proceeding or governmental investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened against any Loan Party which might reasonably be expected to have a Material Adverse Effect, except as set forth in Schedule 9.6.  Other than any liability incident to such litigation or proceedings, no Loan Party has any material contingent liabilities not listed on Schedule 9.6 or permitted by Section 11.1.

9.7Ownership of Properties; Liens.  Each Loan Party owns good and, in the case of real property, marketable title to all of its properties and assets, real and personal, tangible and intangible, of any nature whatsoever (including patents, trademarks, trade names, service marks and copyrights), free and clear of all Liens, charges and claims (including infringement claims with respect to patents, trademarks, service marks, copyrights and the like) except as permitted by Section 11.2 and listed in Schedule 9.7.

9.8Equity Ownership; Subsidiaries.  All issued and outstanding Capital Securities of each Loan Party are duly authorized and validly issued, fully paid, non-assessable, and free and clear of all Liens other than those in favor of Agent, for the ratable benefit of Agent and the Lenders, and such securities were issued in compliance with all applicable state and federal laws concerning the issuance of securities.  As of the Closing Date, the Company has no Subsidiaries other than those specifically disclosed in part (a) of Schedule 9.8 and no Loan Party has material Investments in any other corporation or entity other than those specifically disclosed in part (b) of Schedule 9.8.  As of the Closing Date, each Subsidiary is a Wholly-Owned Subsidiary and all of the issued and outstanding Capital Securities of each Wholly-Owned Subsidiary is, directly or indirectly, owned by the Company.

9.9Pension Plans.

(a)The Unfunded Liability of all Pension Plans does not in the aggregate exceed twenty percent of the Total Plan Liability for all such Pension Plans.  Each Pension Plan complies in all material respects with all applicable requirements of law and regulations.  No contribution failure under Section 412 of the Code, Section 302 of ERISA or the terms of any Pension Plan has occurred with respect to any Pension Plan, sufficient to give rise to a Lien under Section 302(f) of ERISA, or otherwise to have a Material Adverse Effect.  There are no pending or, to the knowledge of any Loan Party, threatened, claims, actions, investigations or lawsuits against any Pension Plan, any fiduciary of any Pension Plan, or the Company or any other member of the Controlled Group with respect to a Pension Plan or a Multiemployer Pension Plan which could reasonably be expected to have a Material Adverse Effect.  Neither the Company nor any other member of the Controlled Group has engaged in any prohibited transaction (as defined in Section 4975 of the Code or Section 406 of ERISA) in connection with

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any Pension Plan or Multiemployer Pension Plan which would subject that Person to any material liability.  Within the past five years, neither the Company nor any other member of the Controlled Group has engaged in a transaction which resulted in a Pension Plan with an Unfunded Liability being transferred out of the Controlled Group, which could reasonably be expected to have a Material Adverse Effect.  No Termination Event has occurred or is reasonably expected to occur with respect to any Pension Plan, which could reasonably be expected to have a Material Adverse Effect.

(b)All contributions (if any) have been made to any Multiemployer Pension Plan that are required to be made by the Company or any other member of the Controlled Group under the terms of the plan or of any collective bargaining agreement or by applicable law; neither the Company nor any other member of the Controlled Group has withdrawn or partially withdrawn from any Multiemployer Pension Plan, incurred any withdrawal liability with respect to any such plan or received notice of any claim or demand for withdrawal liability or partial withdrawal liability from any such plan, and no condition has occurred which, if continued, could result in a withdrawal or partial withdrawal from any such plan; and neither the Company nor any other member of the Controlled Group has received any notice that any Multiemployer Pension Plan is in reorganization, that increased contributions may be required to avoid a reduction in plan benefits or the imposition of any excise tax, that any such plan is or has been funded at a rate less than that required under Section 412 of the Code, that any such plan is or may be terminated, or that any such plan is or may become insolvent.

9.10Investment Company Act.  No Loan Party is an “investment company” or a company “controlled” by an “investment company” or a “subsidiary” of an “investment company,” within the meaning of the Investment Company Act of 1940.

9.11Public Utility Holding Company Act.  No Loan Party is a “holding company”, or a “subsidiary company” of a “holding company,” or an “affiliate” of a “holding company” or of a “subsidiary company” of a “holding company,” within the meaning of the Public Utility Holding Company Act of 2005.

9.12Margin Stock.  No Loan Party is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying Margin Stock.

9.13Taxes; Tax Shelter Registration.

(a)Each Loan Party has timely filed all tax returns and reports required by law to have been filed by it and has paid all taxes and governmental charges due and payable with respect to such return, except any such taxes or charges which are being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books.  The Loan Parties have made adequate reserves on their books and records in accordance with GAAP for all taxes that have accrued but which are not yet due and payable.  No Loan Party has participated in any transaction that relates to a year of the taxpayer (which is still open under the applicable statute of limitations) which is a “reportable transaction” within the meaning of Treasury Regulation section 1.6011-4(b)(2) (irrespective of the date when the transaction was entered into).

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

9.14Solvency, etc.  On the Closing Date, and immediately prior to and after giving effect to the issuance of each Letter of Credit and each borrowing hereunder and the use of the proceeds thereof, with respect to each Loan Party, individually, (a) the fair value of its assets is greater than the amount of its liabilities (including disputed, contingent and unliquidated liabilities) as such value is established and liabilities evaluated, (b) the present fair saleable value of its assets is not less than the amount that will be required to pay the probable liability on its debts as they become absolute and matured, (c) it is able to realize upon its assets and pay its debts and other liabilities (including disputed, contingent and unliquidated liabilities) as they mature in the normal course of business, (d) it does not intend to, and does not believe that it will, incur debts or liabilities beyond its ability to pay as such debts and liabilities mature and (e) it is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which its property would constitute unreasonably small capital.

9.15Environmental Matters.  The on-going operations of each Loan Party comply in all respects with all Environmental Laws, except such non-compliance which could not (if enforced in accordance with applicable law) reasonably be expected to result, either individually or in the aggregate, in a Material Adverse Effect.  Each Loan Party has obtained, and maintained in good standing, all licenses, permits, authorizations, registrations and other approvals required under any Environmental Law and required for their respective ordinary course operations, and for their reasonably anticipated future operations, and each Loan Party is in compliance with all terms and conditions thereof, except where the failure to do so could not reasonably be expected to result in material liability to any Loan Party and could not reasonably be expected to result, either individually or in the aggregate, in a Material Adverse Effect.  No Loan Party or any of its properties or operations is subject to, or reasonably anticipates the issuance of, any written order from or agreement with any Federal, state or local governmental authority, nor subject to any judicial or docketed administrative or other proceeding, respecting any Environmental Law, Environmental Claim or Hazardous Substance.  There are no Hazardous Substances or other conditions or circumstances existing with respect to any property, arising from operations prior to the Closing Date, or relating to any waste disposal, of any Loan Party that would reasonably be expected to result, either individually or in the aggregate, in a Material Adverse Effect.  No Loan Party has any underground storage tanks that are not properly registered or permitted under applicable Environmental Laws or that at any time have released, leaked, disposed of or otherwise discharged Hazardous Substances.

9.16Insurance. Each Loan Party and its properties are insured with financially sound and reputable insurance companies which are not Affiliates of the Loan Parties, in such amounts, with such deductibles and covering such risks as are customarily carried by companies engaged in similar businesses and owning similar properties in localities where such Loan Parties operate.

9.17Real Property.  Set forth on Schedule 9.17 is a complete and accurate list, as of the Closing Date, of the address of all real property owned or leased by any Loan Party, together with, in the case of leased property, the name and mailing address of the lessor of such property.

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9.18Information.  All information heretofore or contemporaneously herewith furnished in writing by any Loan Party to Agent or any Lender for purposes of or in connection with this Agreement and the transactions contemplated hereby is, and all written information hereafter furnished by or on behalf of any Loan Party to Agent or any Lender pursuant hereto or in connection herewith will be, true and accurate in every material respect on the date as of which such information is dated or certified, and none of such information is or will be incomplete by omitting to state any material fact necessary to make such information not misleading in light of the circumstances under which made (it being recognized by Agent and the Lenders that any projections and forecasts provided by any Loan Party are based on good faith estimates and assumptions believed by such Loan Party to be reasonable as of the date of the applicable projections or assumptions and that actual results during the period or periods covered by any such projections and forecasts may differ from projected or forecasted results).

9.19Intellectual Property.  Each Loan Party owns and possesses or has a license or other right to use all patents, patent rights, trademarks, trademark rights, trade names, trade name rights, service marks, service mark rights and copyrights as are necessary for the conduct of the businesses of the Loan Parties, without any infringement upon rights of others which could reasonably be expected to have a Material Adverse Effect.

9.20Burdensome Obligations.  No Loan Party is a party to any agreement or contract or subject to any restriction contained in its organizational documents which could reasonably be expected to have a Material Adverse Effect.

9.21Labor Matters.  No Loan Party is subject to any labor or collective bargaining agreement.  There are no existing or threatened strikes, lockouts or other labor disputes involving any Loan Party that singly or in the aggregate could reasonably be expected to have a Material Adverse Effect.  Hours worked by and payment made to employees of the Loan Parties are not in violation of the Fair Labor Standards Act or any other applicable law, rule or regulation dealing with such matters.

9.22No Default.  No Event of Default or Unmatured Event of Default exists or would result from the incurrence by any Loan Party of any Debt hereunder or under any other Loan Document.

9.23Accounts.  No Loan Party maintains any deposit, checking, brokerage or similar account with any bank, savings association, financial institution or similar financial intermediary, other than those identified in writing to the Agent.

9.24Anti-Terrorism Law Compliance.  None of the Loan Parties is subject to or in violation of any law, regulation or list of any government agency including, without limitation, the U.S.  Office of Foreign Asset Control (“OFAC”) list, Executive Order 13224 or the USA Patriot Act) that prohibits or limits the conduct of business with or receiving of funds, goods or services to or for the benefit of certain Persons specified therein or that prohibits or limits any Lender from making any Loan or extension of credit to any Loan Party or from otherwise conducting business with any Loan Party.  Without in any way limiting the generality of the foregoing, (a) no Loan Party (and, to the knowledge of each Loan Party, no joint venture thereof) is in violation in any material respects of any United States Requirements of Law relating to

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terrorism, sanctions or money laundering (the “Anti-Terrorism Laws”), including the United States Executive Order No. 13224 on Terrorist Financing (the “Anti-Terrorism Order”) and the Patriot Act; (b) no Loan Party (and, to the knowledge of each Loan Party, no joint venture thereof) (i) is listed in the annex to, or is otherwise subject to the provisions of, the Anti-Terrorism Order, (ii) is owned or controlled by, or acting for or on behalf of, any person listed in the annex to, or is otherwise subject to the provisions of, the Anti-Terrorism Order, (iii) commits, threatens or conspires to commit or supports “terrorism” as defined in the Anti-Terrorism Order or (iv) is named as a “specially designated national and blocked person” in the most current list published by OFAC; (c) no Loan Party (and, to the knowledge of each Loan Party, no joint venture or Affiliate thereof) (i) conducts any business or engages in making or receiving any contribution of funds, goods or services to or for the benefit of any person described in clauses (b)(i) through (b)(iv) above, (ii) deals in, or otherwise engages in any transactions relating to, any property or interests in property blocked pursuant to the Anti-Terrorism Order or (iii) engages in or conspires to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in any Anti-Terrorism Law; and (d) each Loan Party is and will remain in compliance in all material respects with all U.S. economic sanctions laws, Executive Orders and implementing regulations as promulgated by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”), and all applicable anti-money laundering and counter-terrorism financing provisions of the Bank Secrecy Act and all regulations issued pursuant to it.  Neither any Loan Party or Affiliate of any Loan Party (i) is a Person designated by the U.S. government on the list of the Specially Designated Nationals and Blocked Persons (the “SDN List”) with which a U.S. Person cannot deal with or otherwise engage in business transactions, (ii) is a Person who is otherwise the target of U.S. economic sanctions laws such that a U.S. Person cannot deal or otherwise engage in business transactions with such Person or (iii) is controlled by (including without limitation by virtue of such person being a director or owning voting shares or interests), or acts, directly or indirectly, for or on behalf of, any person or entity on the SDN List or a foreign government that is the target of U.S. economic sanctions prohibitions such that the entry into, or performance under, this Agreement or any other Loan Document would be prohibited under U.S. law.

9.25Compliance with Laws.  Each Loan Party is in compliance in all material respects with the requirements of all laws and all orders, writs, injunctions and decrees applicable to it or to its properties, except in such instances in which (a) such requirement of law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted or (b) the failure to comply therewith, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.

9.26Hedging Agreements.  No Loan Party is a party to, nor will it be a party to, any Hedging Agreement other than a bona fide (not speculative) Hedging Agreement, in form and substance reasonably acceptable to the Administrative Agent, to protect the Loan Parties against fluctuations in interest rates and/or foreign currencies.

9.27Patriot Act.  The Loan Parties and each of their Affiliates are in compliance with (a) the Trading with the Enemy Act, and each of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B Chapter V, as amended) and any other enabling legislation or executive order relating thereto, (b) the Patriot Act and (c) other federal or state laws relating to “know your customer” and anti-money laundering rules and regulations. 

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No part of the proceeds of any Loan will be used directly or indirectly for any payments to any government official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of the United States Foreign Corrupt Practices Act of 1977.

SECTION 10AFFIRMATIVE COVENANTS.

Until the expiration or termination of the Commitment and thereafter until all Obligations hereunder and under the other Loan Documents are irrevocably paid in full in cash and all Letters of Credit have been terminated, each Loan Party agrees that, unless at any time the Required Lenders shall otherwise expressly consent in writing, it will:

10.1Reports, Certificates and Other Information.  Furnish to Agent:

10.1.1Annual Report.  Promptly when available and in any event within ninety (90) days after the end of each Fiscal Year (a) a copy of the annual audit report of the Company and its Subsidiaries for such Fiscal Year, including therein consolidated balance sheets and consolidated statements of income or operations, shareholder’s equity and cash flows of the Company and its Subsidiaries as at the end of such Fiscal Year, together with a written opinion from independent auditors of national standing selected by the Company and reasonably acceptable to Agent and each Lender that (A) such consolidated financial statements present fairly, in all material respects, the financial position for the periods indicated in conformity with GAAP and (B) in making the examination necessary for the signing of such annual audit report, nothing came to the attention of such auditors that caused them to believe that the Company was not in compliance with any provision of Sections 11.1, 11.3, 11.4, 11.11, 11.15, 11.16 or 11.17 of this Agreement; and (b) a comparison with the budget for such Fiscal Year and a comparison with the previous Fiscal Year, certified by a Senior Officer of the Company, all in reasonable detail and scope satisfactory to Agent and each Lender and certified by a Senior Officer of the Company.

10.1.2Monthly Reports.  Promptly when available and in any event within thirty (30) days after the end of each fiscal month, consolidated balance sheets of the Company and its Subsidiaries as of the end of such month, together with consolidated statements of income or operations for such month, together with a comparison with the corresponding period of the previous Fiscal Year and for the statements of income a comparison with the budget for such period of the current Fiscal Year, certified by a Senior Officer of the Company.

10.1.3Quarterly Reports.  Promptly when available and in any event within forty-five (45) days after the end of each Fiscal Quarter, consolidated balance sheets of the Company and its Subsidiaries as of the end of such Fiscal Quarter, together with consolidated statements of income or operations for such Fiscal Quarter, and a consolidated statement of cash flows for the period beginning with the first day of such Fiscal Year and ending on the last day of such Fiscal Quarter, together with a comparison with the corresponding period of the previous Fiscal Year and for the statements of

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income a comparison with the budget for such period of the current Fiscal Year, certified by a Senior Officer of the Company.

10.1.4Compliance Certificates.  Contemporaneously with the furnishing of a copy of each set of monthly statements pursuant to Section 10.1.2, a duly completed compliance certificate in the form of Exhibit B, with appropriate insertions, dated the date of such annual report or such monthly statements and signed by a Senior Officer of the Company, containing (i) a computation of each of the financial ratio and/or amount contemplated by Sections 11.15, 11.16 and 11.17 and to the effect that such officer has not become aware of any Event of Default or Unmatured Event of Default that has occurred and is continuing or, if there is any such event, describing it and the steps, if any, being taken to cure it and (ii) at any time when the Company is not an SEC reporting company, a written statement of the Company’s management setting forth a discussion of the Loan Parties’ financial condition, changes in financial condition and results of operations.

10.1.5Consolidated Operating Budget.  Promptly when available and in any event within thirty (30) days after the end of each Fiscal Year, a copy of the consolidated operating budget for the following Fiscal Year, certified by a Senior Officer of the Company.

10.1.6Reports to the SEC and to Shareholders.  Promptly upon the filing or sending thereof, copies of all regular, periodic or special reports of any Loan Party filed with the SEC; copies of all registration statements of any Loan Party filed with the SEC (other than on Form S-8); and copies of all proxy statements or other communications made to security holders generally.

10.1.7Notice of Default, Litigation and ERISA Matters.  Promptly upon becoming aware of any of the following, written notice describing the same and the steps being taken by the Company or the Subsidiary affected thereby with respect thereto:

(a)the occurrence of an Event of Default or an Unmatured Event of Default;

(b)any litigation, arbitration or governmental investigation or proceeding not previously disclosed by the Company to Agent and the Lenders which has been instituted or, to the knowledge of any Loan Party, is threatened against any Loan Party or to which any of the properties of any thereof is subject which might reasonably be expected to have a Material Adverse Effect;

(c)the institution of any steps by any member of the Controlled Group or any other Person to terminate any Pension Plan, or the failure of any member of the Controlled Group to make a required contribution to any Pension Plan (if such failure is sufficient to give rise to a Lien under Section 302(f) of ERISA) or to any Multiemployer Pension Plan, or the taking of any action with respect to a Pension Plan which could result in the requirement that the Company furnish a bond or other security to the PBGC or such Pension Plan, or the occurrence of any event with respect to any Pension Plan or Multiemployer Pension Plan which could result in the incurrence by any member of the Controlled Group of any material liability, fine or penalty

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(including any claim or demand for withdrawal liability or partial withdrawal from any Multiemployer Pension Plan), or any material increase in the contingent liability of the Company with respect to any post-retirement welfare benefit plan or other employee benefit plan of the Company or another member of the Controlled Group, or any notice that any Multiemployer Pension Plan is in reorganization, that increased contributions may be required to avoid a reduction in plan benefits or the imposition of an excise tax, that any such plan is or has been funded at a rate less than that required under Section 412 of the Code, that any such plan is or may be terminated, or that any such plan is or may become insolvent;

(d)any cancellation or material change in any insurance maintained by any Loan Party; or

(e)any other event (including (i) any violation of any Environmental Law or the assertion of any Environmental Claim or (ii) the enactment or effectiveness of any law, rule or regulation) which might reasonably be expected to have a Material Adverse Effect.

10.1.8Borrowing Base Certificates.  Within thirty (30) days of the end of each month, a Borrowing Base Certificate dated as of the end of such month and executed by a Senior Officer of the Company on behalf of the Company together with a lease receivable aging (provided that (a) the Company may deliver a Borrowing Base Certificate more frequently if it chooses and (b) at any time an Event of Default exists, Agent or any Lender may require the Company to deliver Borrowing Base Certificates more frequently).

10.1.9Management Reports.  Promptly upon receipt thereof, copies of all detailed financial and management reports submitted to the Company by independent auditors in connection with each annual or interim audit made by such auditors of the books of the Company.

10.1.10Subordinated Debt Notices.  Promptly following receipt, copies of any notices (including notices of default or acceleration) received from any holder or trustee of, under or with respect to any Subordinated Debt.

10.1.11Other Information.  Promptly from time to time, such other information concerning the Loan Parties as Agent or any Lender may reasonably request.

10.2Books, Records and Inspections.  Keep, and cause each other Loan Party to keep, its books and records in accordance with sound business practices sufficient to allow the preparation of financial statements in accordance with GAAP; implement and maintain a cash management system reasonably acceptable to Agent; permit, and cause each other Loan Party to permit, Agent or any representative thereof to inspect the properties and operations of the Loan Parties; and permit, and cause each other Loan Party to permit, at any reasonable time and with reasonable notice (or at any time without notice if an Event of Default exists), Agent or any representative thereof to visit any or all of its offices, to discuss its financial matters with its officers and its independent auditors (and the Company hereby authorizes such independent auditors to discuss such financial matters with Agent or any representative thereof), and to examine (and, at the expense of the Loan Parties, photocopy extracts from) any of its books or

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other records; and permit, and cause each other Loan Party to permit, Agent and its representatives to inspect the Inventory and other tangible assets of the Loan Parties, to perform appraisals of the equipment of the Loan Parties, and to inspect, audit, check and make copies of and extracts from the books, records, computer data, computer programs, journals, orders, receipts, correspondence and other data relating to Inventory, Accounts and any other collateral.  All such inspections or audits by Agent shall be at the Company’s expense, provided that (i) so long as no Event of Default or Unmatured Event of Default exists, the Company shall not be required to reimburse Agent for inspections or audits more frequently than once each Fiscal Year, and (ii) without limiting Agent’s rights under clause (i) of this Section 10.2, Agent may at the Company’s expense not later than October 31, 2010 conduct such audit or inspection in respect of the Company’s (and the applicable Loan Party’s) leasing portfolio and reasonably related operations.

10.3Maintenance of Property; Insurance.

(a)Keep, and cause each other Loan Party to keep, all property useful and necessary in the business of the Loan Parties in good working order and condition, ordinary wear and tear excepted.

(b)Maintain, and cause each other Loan Party to maintain, with responsible insurance companies, such insurance coverage as may be required by any law or governmental regulation or court decree or order applicable to it and such other insurance, to such extent and against such hazards and liabilities, as is customarily maintained by companies similarly situated; and, upon request of Agent, furnish to Agent a certificate setting forth in reasonable detail the nature and extent of all insurance maintained by the Loan Parties.  The Company shall cause each issuer of an insurance policy to provide Agent with an endorsement (i) showing Agent as lender loss payee with respect to each policy of property or casualty insurance and naming Agent as an additional insured with respect to each policy of liability insurance, (ii) providing that 30 days’ notice will be given to Agent prior to any cancellation of, material reduction or change in coverage provided by or other material modification to such policy and (iii) reasonably acceptable in all other respects to Agent.

10.4Compliance with Laws; Payment of Taxes and Liabilities.  (a) Comply, and cause each other Loan Party to comply, in all material respects with all applicable laws, rules, regulations, decrees, orders, judgments, licenses and permits, except where failure to comply could not reasonably be expected to have a Material Adverse Effect; (b) without limiting clause (a) above, ensure, and cause each other Loan Party to ensure, that no person who owns a controlling interest in or otherwise controls a Loan Party is or shall be (i) listed on the Specially Designated Nationals and Blocked Person List maintained by the OFAC, Department of the Treasury, and/or any other similar lists maintained by OFAC pursuant to any authorizing statute, Executive Order or regulation or (ii) a person designated under Section 1(b), (c) or (d) of Executive Order No. 13224 (September 23, 2001), any related enabling legislation or any other similar Executive Orders, (c) without limiting clause (a) above, comply, and cause each other Loan Party to comply, with all applicable Bank Secrecy Act (“BSA”) and anti-money laundering laws and regulations and (d) pay, and cause each other Loan Party to pay, prior to delinquency, all taxes and other governmental charges against it or any collateral, as well as claims of any kind which, if unpaid, could become a Lien on any of its property; provided that the foregoing

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shall not require any Loan Party to pay any such tax or charge so long as it shall contest the validity thereof in good faith by appropriate proceedings and shall set aside on its books adequate reserves with respect thereto in accordance with GAAP and, in the case of a claim which could become a Lien on any collateral, such contest proceedings shall stay the foreclosure of such Lien or the sale of any portion of the collateral to satisfy such claim.

10.5Maintenance of Existence, etc.  Maintain and preserve, and (subject to Section 11.5) cause each other Loan Party to maintain and preserve, (a) its existence and good standing in the jurisdiction of its organization and (b) its qualification to do business and good standing in each jurisdiction where the nature of its business makes such qualification necessary (other than such jurisdictions in which the failure to be qualified or in good standing could not reasonably be expected to have a Material Adverse Effect).

10.6Use of Proceeds.  Use the proceeds of the Loans and the Letters of Credit solely for repayment of the Unsecured Notes and the Loan Parties’ existing Debt to Bank of America, N.A., for working capital purposes, for Acquisitions permitted by Section 11.5, for Capital Expenditures, for stock repurchases, for dividends and distributions and for other general business purposes; and not use or permit any proceeds of any Loan to be used, either directly or indirectly, for the purpose, whether immediate, incidental or ultimate, of “purchasing or carrying” any Margin Stock.

10.7Employee Benefit Plans.

(a)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.

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

(c)Not, and not permit any other member of the Controlled Group to (i) seek a waiver of the minimum funding standards of ERISA, (ii) terminate or withdraw from any Pension Plan or Multiemployer Pension Plan or (iii) 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 (i), (ii) and (iii) individually or in the aggregate would not have a Material Adverse Effect.

10.8Environmental Matters.  If any release or threatened release or other disposal of Hazardous Substances shall occur or shall have occurred on any real property or any other assets of any Loan Party, the Company or the applicable Loan Party shall cause the prompt containment and removal of such Hazardous Substances and the remediation of such real property or other assets as necessary to comply with all Environmental Laws and to preserve the value of such real property or other assets.  Without limiting the generality of the foregoing, each Loan Party shall comply with any Federal or state judicial or administrative order requiring the performance at any real property of any Loan Party of activities in response to the release or threatened release of a Hazardous Substance.  To the extent that the transportation of Hazardous Substances is permitted by this Agreement, the Company shall, and shall cause its Subsidiaries

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to, dispose of such Hazardous Substances, or of any other wastes, only at licensed disposal facilities operating in compliance with Environmental Laws.

10.9Tax Shelter Registration.  Notify Agent of any action (or the intention to take an action) inconsistent with the representation in Section 9.13(b).  If the Company so notifies Agent, the Company acknowledges and agrees that Agent may treat the transactions contemplated hereby (or any single transaction contemplated hereby) as part of a transaction that is subject to Treasury Regulation Section 301.6112-1, and Agent, as applicable, may maintain the lists and other regulations required by such Treasury Regulation.  To the extent Agent determines to maintain such list, each Loan Party shall cooperate with Agent in obtaining the information required under such Treasury Regulation.  Within 10 days after notifying Agent under this Section 10.9, the Company shall deliver to Agent a duly completed copy of IRS Form 8886 or any successor form.

10.10Further Assurances.  Take such actions as are necessary or as Agent or any Lender may reasonably request from time to time to ensure that the Obligations of each Loan Party under the Loan Documents are secured by substantially all of the assets of the Loan Parties (including, upon the acquisition or creation thereof, any Subsidiary acquired or created after the Closing Date), in each case as Agent may determine, including the execution and delivery of guaranties, security agreements, pledge agreements, mortgages, deeds of trust, financing statements and other documents, and the filing or recording of any of the foregoing and the delivery of certificated securities and other collateral with respect to which perfection is obtained by possession.

10.11Unsecured Notes.  By August 31, 2010, pay the Unsecured Notes in full.

SECTION 11NEGATIVE COVENANTS

Until the expiration or termination of the Commitment and thereafter until all Obligations hereunder and under the other Loan Documents are irrevocably paid in full in cash and all Letters of Credit have been terminated, each Loan Party agrees that, unless at any time the Required Lenders shall otherwise expressly consent in writing, it will:

11.1Debt.  Not, and not permit any other Loan Party to, incur, assume or suffer to exist any Debt, except:

(a)Obligations under this Agreement and the other Loan Documents;

(b)Debt secured by Liens permitted by Section 11.2(d), and extensions, renewals and refinancings thereof; provided that such Debt shall not exceed the cost of the applicable property being leased or acquired and that the aggregate amount of all such Debt at any time outstanding shall not exceed $500,000;

(c)Debt of the Company to any domestic Wholly-Owned Subsidiary or Debt of any domestic Wholly-Owned Subsidiary to the Company or another domestic Wholly-Owned Subsidiary; provided that such Debt shall be subordinated to the Obligations of the Loan Parties hereunder in a manner reasonably satisfactory to Agent and the Required Lenders;

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(d)Subordinated Debt;

(e)Hedging Obligations incurred in favor of any Lender or an Affiliate thereof for bona fide hedging purposes and not for speculation;

(f)Contingent Liabilities arising with respect to customary indemnification obligations in favor of sellers in connection with Acquisitions permitted under Section 11.5 and purchasers in connection with dispositions permitted under Section 11.5;

(g)other unsecured Debt, in addition to the Debt listed above, in an aggregate outstanding amount not at any time exceeding $250,000;

(h)Accounts payable and trade debt arising in the ordinary course of the Loan Parties’ business; and

(i)Any non-recourse obligation of a Loan Party arising from a discounting transaction in the ordinary course of business.

11.2Liens.  Not, and not permit any other Loan Party to, create or permit to exist any Lien on any of its real or personal properties, assets or rights of whatsoever nature (whether now owned or hereafter acquired), except:

(a)Liens for taxes or other governmental charges not at the time delinquent or thereafter payable without penalty or being contested in good faith by appropriate proceedings and, in each case, for which it maintains adequate reserves;

(b)Liens arising in the ordinary course of business such as (i) Liens of carriers, warehousemen, mechanics and materialmen and other similar Liens imposed by law, (ii) Liens in the form of deposits or pledges incurred in connection with worker’s compensation, unemployment compensation and other types of social security (excluding Liens arising under ERISA), and (iii) Liens created in the ordinary course of business arising from non-recourse discounting transactions including (without limitation) liens against (A) the particular lease, (B) all equipment subject to such lease, (C) all lease collateral for such lease, (D) all warranty and other rights a Loan Party may have with respect to such lease and the related equipment against the manufacturers of such equipment and against the sellers and assignors from whom such Loan Party may have acquired such lease and such equipment, (E) proceeds from any and all of the foregoing.  Upon the written request of the Company, each Lender agrees to execute a subordination agreement in form and substance satisfactory to such Lender in connection with liens pursuant to Section 11.2(b)(iii);

(c)Liens arising in the ordinary course of business in an amount of not more than $25,000;

(d)subject to the limitation set forth in Section 11.1(b), (i) Liens arising in connection with Capital Leases (and attaching only to the property being leased), (ii) Liens existing on property at the time of the acquisition thereof by any Loan Party (and not created in contemplation of such acquisition) and (iii) Liens that constitute purchase money security interests on any property securing debt incurred for the purpose of financing all or any part of the

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cost of acquiring such property, provided that any such Lien attaches to such property within 60 days of the acquisition thereof and attaches solely to the property so acquired;

(e)attachments, appeal bonds, judgments and other similar Liens, for sums not exceeding $250,000 arising in connection with court proceedings, provided the execution or other enforcement of such Liens is effectively stayed and the claims secured thereby are being actively contested in good faith and by appropriate proceedings;

(f)easements, rights of way, restrictions, minor defects or irregularities in title and other similar Liens not interfering in any material respect with the ordinary conduct of the business of any Loan Party; and

(g)Liens arising under the Loan Documents.

11.3Operating Leases.  Not permit the aggregate amount of all rental payments under Operating Leases made (or scheduled to be made) by the Loan Parties (on a consolidated basis) to exceed $1,000,000 in any Fiscal Year.

11.4Restricted Payments.  Not, and not permit any other Loan Party to, (a) make any distribution to any holders of its Capital Securities, (b) purchase or redeem any of its Capital Securities, (c) pay any management fees or similar fees to any of its equityholders or any Affiliate thereof, (d) make any redemption, prepayment, defeasance, repurchase or any other payment in respect of any Subordinated Debt other than regular payments of principal and interest as and when due under the Unsecured Notes subject to the terms of the Subordination Agreement related thereto, or (e) set aside funds for any of the foregoing.  Notwithstanding the foregoing, so long as no Unmatured Event of Default or Event of Default has occurred and is continuing or would occur as a result of any of the following, (i) any Subsidiary may pay dividends or make other distributions to the Company or to a domestic Wholly-Owned Subsidiary; (ii) the Company may purchase or redeem any of its Capital Securities so long as after giving effect to such purchase or redemption the Company will remain in compliance with all the financial ratios and restrictions set forth in Sections 11.15, 11.16 and 11.17, as certified by the Company in form and substance satisfactory to Agent and the Required Lenders; (iii) the Company may make payments in respect of Subordinated Debt to the extent permitted under the applicable Subordination Agreement, and (iv) the Company may grant stock options pursuant to a plan approved by the Shareholders of the Company.

11.5Mergers, Consolidations, Sales.  Not, and not permit any other Loan Party to, (a) be a party to any merger or consolidation, or purchase or otherwise acquire all or substantially all of the assets or any Capital Securities of any class of, or any partnership or joint venture interest in, any other Person, (b) sell, transfer, convey or lease all or any substantial part of its assets or Capital Securities (including the sale of Capital Securities of any Subsidiary) except for sales and leases of inventory in the ordinary course of business, or (c) sell or assign with or without recourse any receivables, except for (i) any such merger, consolidation, sale, transfer, conveyance, lease or assignment of or by any Wholly-Owned Subsidiary into the Company or into any other domestic Wholly-Owned Subsidiary; (ii) any such purchase or other acquisition by the Company or any domestic Wholly-Owned Subsidiary of the assets or Capital Securities of any Wholly-Owned Subsidiary; (iii) sales and dispositions of assets for at least fair market value

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(as determined by the Board of Directors of the Company) so long as the net book value of all assets sold or otherwise disposed of in any Fiscal Year does not exceed 10% of the net book value of the consolidated assets of the Loan Parties as of the last day of the preceding Fiscal Year; (iv) the discounting of non-recourse leases in the ordinary course of business; and (v) any Acquisition by the Company or any domestic Wholly-Owned Subsidiary where:

(A)  the business or division acquired are for use, or the Person acquired or invested in is engaged, in a business engaged in by a Loan Party on the Closing Date;

(B)  immediately before and after giving effect to such Acquisition, no Event of Default or Unmatured Event of Default shall exist;

(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 $10,000,000 individually and the aggregate consideration for all Acquisitions by the Loan Parties since the Closing Date does not exceed $10,000,000;

(D)  immediately after giving effect to such Acquisition, (i) the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Sections 11.15, 11.16 and 11.17 and (ii) Loan Availability minus Outstandings is greater than or equal to $5,000,000;

(E)  in the case of the Acquisition of any Person, the Board of Directors of such Person has approved such Acquisition;

(F)  reasonably prior to such Acquisition, Agent and each Lender shall have received complete executed or conformed copies of each material document, instrument and agreement to be executed in connection with such Acquisition together with all lien search reports and lien release letters and other documents as Agent or such Lender may require to evidence the termination of Liens on the assets or business to be acquired if applicable;

(G)  not less than ten (10) Business Days prior to such Acquisition, Agent and each Lender shall have received an acquisition summary with respect to the Person and/or business or division to be acquired or invested in, such summary to include a reasonably detailed description thereof (including financial information) and operating results (including financial statements for the most recent 12 month period for which they are available and as otherwise available), the terms and conditions, including economic terms, of the proposed Acquisition, and the Company’s calculation of pro forma EBITDA relating thereto;

(H)  consents have been obtained in favor of Agent and each Lender to the collateral assignment of rights and indemnities under the related acquisition documents and opinions of counsel for the Loan Parties and (if delivered to the Loan Party) the selling party in favor of Agent and each Lender have been delivered; and

(I)  the provisions of Section 10.10 have been satisfied.

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11.6Modification of Organizational Documents.  Not permit the charter, by-laws or other organizational documents of any Loan Party to be amended or modified in any way which could reasonably be expected to materially adversely affect the interests of any Lender.

11.7Affiliate Transactions.  Not, and not permit any other Loan Party to, enter into, or cause, suffer or permit to exist any transaction, arrangement or contract with any of its other Affiliates (other than the Loan Parties) which is on terms which are less favorable than are obtainable from any Person which is not one of its Affiliate, except for those listed on Schedule 11.7.

11.8Unconditional Purchase Obligations.  Not, and not permit any other Loan Party to, enter into or be a party to any contract for the purchase of materials, supplies or other property or services if such contract requires that payment be made by it regardless of whether delivery is ever made of such materials, supplies or other property or services.

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 and (C) customary provisions in leases and other contracts restricting the assignment thereof.

11.10Business Activities.  Not, and not permit any other Loan Party to, engage in any line of business other than the businesses engaged in and businesses reasonably related thereto.

11.11[INTENTIONALLY OMITTED].

11.12Subordinated Debt Documents.  Not amend, modify or supplement any Subordinated Debt Document in any manner that could affect or impair the rights of the Lenders contemplated in the Subordination Agreements or amend, modify or supplement the Subordination Agreements in any respect, in each case without the prior written consent of the Required Lenders; provided that the Company may pay the Unsecured Notes on or before August 31, 2010.

11.13Fiscal Year.  Not change its Fiscal Year.

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11.14Control Agreements.  Not fail to deliver to Agent within thirty (30) days after Agent’s request, a Control Agreement for any deposit, checking or brokerage account opened or maintained by a Loan Party.

11.15Tangible Net Worth.  Not permit the Tangible Net Worth of the Company and the Subsidiaries to be:

(a)as of July 31, 2010, less than Two Million Dollars ($2,000,000); and

(b)as of the last Business Day of each fiscal month following July 31, 2010, the sum of the minimum Tangible Net Worth from the immediately preceding fiscal month plus fifty percent (50%) of the net income of the fiscal month then ended, if positive.

11.16Debt Service Coverage.  As of the end of each fiscal month and on a trailing twelve month basis, not fail to maintain a ratio of (i) the sum of (a) EBITDA of the Loan Parties, minus (b) capital expenditures of the Loan Parties, minus (c) cash taxes of the Loan Parties, and minus (d) dividends and other distributions of the Company, divided by (ii) the sum of (x) scheduled principal payments of Debt of the Loan Parties paid or due and payable on or before the last day of such period (other than Fixed Rate Loans), plus (y) total cash interest expense (including leasing related cash interest expense) on Debt of the Loan Parties, of not less than (A) 2.00 from the Closing Date through fiscal May 2012, (B) 2.25 from fiscal June 2012 through fiscal May 2013 and (C) 2.50 from fiscal June 2013 and thereafter.

11.17Maximum Leverage.  As of the end of each month and on a trailing twelve month basis, not fail to maintain a ratio of (i) Debt of the Loan Parties minus consolidated Subordinated Debt minus non-recourse Debt of the Loan Parties in connection with discounting activities of the Loan Parties divided by (ii) EBITDA of the Loan Parties, that shall not exceed (A) 2.50 from the Closing Date through fiscal May 2012 and (B) 2.25 from fiscal June 2012 and thereafter.

11.18Laws and Regulations.  Not to fail to comply with the laws, regulations and executive orders referred to in Sections 9.24 and 9.27.

SECTION 12EFFECTIVENESS; CONDITIONS OF LENDING, ETC.

The obligation of each Lender to make the Loans and/or to issue Letters of Credit is subject to the following conditions precedent:

12.1Initial Credit Extension.  The obligation of each Lender to make the initial Loans and the obligation of the L/C Issuer to issue the initial Letter of Credit (whichever first occurs) is, in addition to the conditions precedent specified in Section 12.2, subject to the condition precedent that Agent shall have received all of the following, each duly executed and dated the Closing Date (or such earlier date as shall be satisfactory to Agent), in form and substance satisfactory to Agent and each Lender (and the date on which all such conditions precedent have been satisfied or waived in writing by Agent is called the “Closing Date”):

12.1.1Notes.  A Note, duly executed by the Loan Parties, in favor of each Lender.

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12.1.2Authorization Documents.  For each Loan Party, such Person’s (a) charter (or similar formation document), certified by the appropriate governmental authority; (b) good standing certificates in its state of incorporation (or formation) and in each other state requested by Agent; (c) bylaws (or similar governing document); (d) resolutions of its board of directors (or similar governing body) approving and authorizing such Person’s execution, delivery and performance of the Loan Documents to which it is party and the transactions contemplated thereby; and (e) signature and incumbency certificates of its officers executing any of the Loan Documents (it being understood that the Lenders may conclusively rely on each such certificate until formally advised by a like certificate of any changes therein), all certified by its secretary or an assistant secretary (or similar officer) as being in full force and effect without modification.

12.1.3Consents, etc.  Certified copies of all documents evidencing any necessary corporate or partnership action, consents and governmental approvals (if any) required for the execution, delivery and performance by the Loan Parties of the documents referred to in this Section 12.

12.1.4Security Documents.  A Security Agreement executed by each Loan Party, a Pledge Agreement executed by the Company, and a Control Agreement for each account identified by Agent, executed by the applicable Loan Party and the depository or financial intermediary, in each case together with all instruments, transfer powers and other items required to be delivered in connection therewith.

12.1.5Financing Statements.  UCC-1 financing statements relating to the Collateral (as defined in the Security Agreement) and the Capital Securities pledged pursuant to the Pledge Agreement, completed and, if required, executed by each Loan Party, for filing in each jurisdiction reasonably requested by Agent.

12.1.6Opinions of Counsel.  Opinions of counsel for each Loan Party, including local counsel reasonably requested by Agent.

12.1.7Insurance.  Evidence of the existence of insurance required to be maintained pursuant to Section 10.3(b), together with evidence that Agent has been named as a lender loss payee and an additional insured on all related insurance policies.

12.1.8Payment of Fees.  Evidence of payment by the Company of all accrued and unpaid fees, costs and expenses to the extent then due and payable on the Closing Date, together with all Attorney Costs of Agent to the extent invoiced prior to the Closing Date, plus such additional amounts of Attorney Costs as shall constitute Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by Agent through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Company and Agent).

12.1.9Search Results; Lien Terminations.  Certified copies of Uniform Commercial Code search reports and pending suit judgments and tax lien search reports dated a date reasonably near to the Closing Date, listing all effective financing

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statements, suits, judgments or tax liens which name any Loan Party (under their present names and any previous names) as debtors, together with copies of any such financing statements, suits, judgments and tax liens.

12.1.10Filings, Registrations and Recordings.  Agent shall have received each document (including Uniform Commercial Code financing statements) required by the Collateral Documents or under law or reasonably requested by any Lender to be filed, registered or recorded in order to create in favor of Agent, for the ratable benefit of Agent and the Lenders, a perfected Lien on the collateral described therein, prior to any other Liens (subject only to Liens permitted pursuant to Section 11.2), in proper form for filing, registration or recording.

12.1.11Other Documents.  Such other documents as Agent or any Lender may reasonably request.

12.2Conditions.  The obligation (a) of each Lender to make each Loan and (b) of the L/C Issuer to issue each Letter of Credit is subject to the following further conditions precedent that:

12.2.1Compliance with Warranties, No Default, etc.  Both before and after giving effect to any borrowing and the issuance of any Letter of Credit, the following statements shall be true and correct:

(a)the representations and warranties of each Loan Party set forth in this Agreement and the other Loan Documents shall be true and correct in all respects with the same effect as if then made (except to the extent stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct as of such earlier date); and

(b)no Event of Default or Unmatured Event of Default shall have then occurred and be continuing.

12.2.2Confirmatory Certificate.  If requested by any Lender or the L/C Issuer, as applicable, such Lender or L/C Issuer shall have received a certificate dated the date of such requested Loan or Letter of Credit and signed by a duly authorized representative of the Company as to the matters set out in Section 12.2.1 (it being understood that each request by the Company for the making of a Loan or the issuance of a Letter of Credit shall be deemed to constitute a representation and warranty by the Company that the conditions precedent set forth in Section 12.2.1 will be satisfied at the time of the making of such Loan or the issuance of such Letter of Credit), together with such other documents as such Lender or L/C Issuer may reasonably request in support thereof.

SECTION 13EVENTS OF DEFAULT AND THEIR EFFECT.

13.1Events of Default.  Each of the following shall constitute an Event of Default under this Agreement:

13.1.1Non-Payment of the Loans, etc.  Default in the payment when due of the principal of any Loan; or default, and continuance thereof for five days, in the

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payment when due of any interest, fee, reimbursement obligation with respect to any Letter of Credit or other amount payable by the Loan Parties hereunder or under any other Loan Document.

13.1.2Non-Payment of Other Debt.  Any default shall occur under the terms applicable to any Debt of any Loan Party in an aggregate amount (for all such Debt so affected and including undrawn committed or available amounts and amounts owing to all creditors under any combined or syndicated credit arrangement) exceeding $250,000 and such default shall (a) consist of the failure to pay such Debt when due, whether by acceleration or otherwise, or (b) accelerate the maturity of such Debt or permit the holder or holders thereof, or any trustee or agent for such holder or holders, to cause such Debt to become due and payable (or require any Loan Party to purchase or redeem such Debt or post cash collateral in respect thereof) prior to its expressed maturity.

13.1.3Other Material Obligations.  Default in the payment when due, or in the performance or observance of, any material obligation of, or condition agreed to by, any Loan Party with respect to any material purchase or lease of goods or services where such default, singly or in the aggregate with all other such defaults, might reasonably be expected to have a Material Adverse Effect.

13.1.4Bankruptcy, Insolvency, etc.  Any Loan Party becomes insolvent or generally fails to pay, or admits in writing its inability or refusal to pay, debts as they become due; or any Loan Party applies for, consents to, or acquiesces in the appointment of a trustee, receiver or other custodian for such Loan Party or any property thereof, or makes a general assignment for the benefit of creditors; or, in the absence of such application, consent or acquiescence, a trustee, receiver or other custodian is appointed for any Loan Party or for a substantial part of the property of any thereof and is not discharged within 60 days; or any bankruptcy, reorganization, debt arrangement, or other case or proceeding under any bankruptcy or insolvency law, or any dissolution or liquidation proceeding, is commenced in respect of any Loan Party, and if such case or proceeding is not commenced by such Loan Party, it is consented to or acquiesced in by such Loan Party, or remains for 60 days undismissed; or any Loan Party takes any action to authorize, or in furtherance of, any of the foregoing.

13.1.5Non-Compliance with Loan Documents.  (a) Failure by any Loan Party to comply with or to perform any covenant set forth in Section 10.1.5, 10.3(b), 10.5 or 10.9 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.

13.1.6Representations; Warranties.  Any representation or warranty made by any Loan Party herein or any other Loan Document is breached or is false or misleading in any material respect, or any schedule, certificate, financial statement, report, notice or other writing furnished by any Loan Party to Agent or any Lender in connection herewith is false or misleading in any material respect on the date as of which the facts therein set forth are stated or certified.

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13.1.7Pension Plans.  (a) Any Person institutes steps to terminate a Pension Plan if as a result of such termination the Company or any member of the Controlled Group could be required to make a contribution to such Pension Plan, or could incur a liability or obligation to such Pension Plan, in excess of $250,000; (b) a contribution failure occurs with respect to any Pension Plan sufficient to give rise to a Lien under Section 302(f) of ERISA; (c) the Unfunded Liability exceeds twenty percent of the Total Plan Liability; or (d) there shall occur any withdrawal or partial withdrawal from a Multiemployer Pension Plan and the withdrawal liability (without unaccrued interest) to Multiemployer Pension Plans as a result of such withdrawal (including any outstanding withdrawal liability that the Company or any member of the Controlled Group have incurred on the date of such withdrawal) exceeds $250,000.

13.1.8Judgments.  Final judgments which exceed an aggregate of $250,000 shall be rendered against any Loan Party and shall not have been paid, discharged or vacated or had execution thereof stayed pending appeal within 30 days after entry or filing of such judgments.

13.1.9Invalidity of Collateral Documents, etc.  Any Collateral Document shall cease to be in full force and effect; or any Loan Party (or any Person by, through or on behalf of any Loan Party) shall contest in any manner the validity, binding nature or enforceability of any Collateral Document.

13.1.10Invalidity of Subordination Provisions, etc.  Any subordination provision in any document or instrument governing Subordinated Debt, or any subordination provision in any guaranty by any Subsidiary of any Subordinated Debt, shall cease to be in full force and effect, or any Loan Party or any other Person (including the holder of any applicable Subordinated Debt) shall contest in any manner the validity, binding nature or enforceability of any such provision.

13.1.11Change of Control.  A Change of Control shall occur.

13.1.12Material Adverse Effect.  The occurrence of any event having a Material Adverse Effect.

13.2Effect of Event of Default.  If any Event of Default occurs and is continuing, Agent shall, at the request of, or may, with the consent of, the Required Lenders, take any or all of the following actions:

(a)declare the Commitment of each Lender to make Loans and any obligation of the L/C Issuer to issue Letters of Credit to be terminated, whereupon such commitments and obligation shall be terminated;

(b)declare the unpaid principal amount of all outstanding Loans, all interest accrued and unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan Document to be immediately due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Company;

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(c)require that the Company Cash Collateralize the L/C Obligations (in an amount equal to the Stated Amount thereof); and

(d)exercise on behalf of itself, the Lenders and the L/C Issuer all rights and remedies available to it, the Lenders and the L/C Issuer under the Loan Documents and/or under any applicable law;

provided, however, that upon the occurrence of an actual or deemed entry of an order for relief with respect to the Company under the Bankruptcy Code of the United States, the obligation of each Lender to make Loans and any obligation of the L/C Issuer to make L/C Credit Extensions shall automatically terminate, the unpaid principal amount of all outstanding Loans and all interest and other amounts as aforesaid shall automatically become due and payable, and the obligation of the Company to Cash Collateralize the L/C Obligations as aforesaid shall automatically become effective, in each case without further act of Agent or any Lender.

13.3Application of Funds.  After the exercise of remedies provided for in Section 13.2 (or after the Loans have automatically become immediately due and payable and the L/C Obligations have automatically been required to be Cash Collateralized as set forth in the proviso to Section 13.2), any amounts received on account of the Obligations shall be applied by Agent in the following order:

First, to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (including fees, charges and disbursements of counsel to Agent (including fees and time charges for attorneys who may be employees of Agent) and amounts payable under Section 7.6 or Section 8) payable to Agent in its capacity as such;

Second, to payment of that portion of the Obligations constituting fees, indemnities and other amounts (other than principal, interest and Letter of Credit fees) payable to Lenders and the L/C Issuer (including fees, charges and disbursements of counsel to the respective Lenders and the L/C Issuer (including fees and time charges for attorneys who may be employees of any Lender or the L/C Issuer) and amounts payable under Section 7.6 or Section 8), ratably among them in proportion to the respective amounts described in this clause Second payable to them;

Third, to payment of that portion of the Obligations constituting accrued and unpaid Letter of Credit fees and interest on the Loans, L/C Borrowings and other Obligations, ratably among Lenders and the L/C Issuer in proportion to the respective amounts described in this clause Third payable to them;

Fourth, to payment of that portion of the Obligations constituting unpaid principal of the Loans and L/C Borrowings, ratably among Lenders and the L/C Issuer in proportion to the respective amounts described in this clause Fourth held by them;

Fifth, to Agent for the account of the L/C Issuer, to Cash Collateralize that portion of L/C Obligations comprised of the aggregate undrawn amount of Letters of Credit; and

Last, the balance, if any, after all of the Obligations have been irrevocably paid in full in cash, to Company or as otherwise required by law.

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Subject to Section 2.3.2, amounts used to Cash Collateralize the aggregate undrawn amount of Letters of Credit pursuant to clause Fifth above shall be applied to satisfy drawings under such Letters of Credit as they occur.  If any amount remains on deposit as Cash Collateral after all Letters of Credit have either been fully drawn or expired, such remaining amount shall be applied to the other Obligations, if any, in the order set forth above.

SECTION 14ADMINISTRATIVE AGENT.

14.1Appointment and Authorization.  Each Lender hereby irrevocably (subject to Section 14.10) appoints, designates and authorizes the Administrative Agent to take such action on its behalf under the provisions of this Agreement and each other Loan Document and to exercise such powers and perform such duties as are expressly delegated to it by the terms of this Agreement or any other Loan Document, together with such powers as are reasonably incidental thereto.  Notwithstanding any provision to the contrary contained elsewhere in this Agreement or in any other Loan Document, the Administrative Agent shall not have any duty or responsibility except those expressly set forth herein, nor shall the Administrative Agent have or be deemed to have any fiduciary relationship with any Lender or participant, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against the Administrative Agent.  Without limiting the generality of the foregoing sentence, the use of the term “agent” herein and in other Loan Documents with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law.  Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.

14.2L/C Issuer.  The L/C Issuer shall act on behalf of the Lenders (according to their Pro Rata Shares) with respect to any Letters of Credit issued by it and the documents associated therewith.  The L/C Issuer shall have all of the benefits and immunities (a) provided to the Administrative Agent in this Section 14 with respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and the applications and agreements for letters of credit pertaining to such Letters of Credit as fully as if the term “Administrative Agent”, as used in this Section 14, included the L/C Issuer with respect to such acts or omissions and (b) as additionally provided in this Agreement with respect to the L/C Issuer.

14.3Delegation of Duties.  The Administrative Agent may execute any of its duties under this Agreement or any other Loan Document by or through agents, employees or attorneys-in-fact and shall be entitled to advice of counsel and other consultants or experts concerning all matters pertaining to such duties.  The Administrative Agent shall not be responsible for the negligence or misconduct of any agent or attorney-in-fact that it selects in the absence of gross negligence or willful misconduct.

14.4Exculpation of Administrative Agent.  None of the Administrative Agent nor any of its directors, officers, employees or agents shall (a) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement or any other Loan Document or the transactions contemplated hereby (except to the extent resulting from its own

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gross negligence or willful misconduct in connection with its duties expressly set forth herein as determined by a final, nonappealable judgment by a court of competent jurisdiction), or (b) be responsible in any manner to any Lender or participant for any recital, statement, representation or warranty made by any Loan Party or Affiliate of any Loan Party, or any officer thereof, contained in this Agreement or in any other Loan Document, or in any certificate, report, statement or other document referred to or provided for in, or received by the Administrative Agent under or in connection with, this Agreement or any other Loan Document, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Loan Document (or the creation, perfection or priority of any Lien or security interest therein), or for any failure of any Loan Party or any other party to any Loan Document to perform its Obligations hereunder or thereunder.  The Administrative Agent shall not be under any obligation to any Lender to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement or any other Loan Document, or to inspect the properties, books or records of any Loan Party or any of the Loan Parties’ Affiliates.

14.5Reliance by Administrative Agent.  The Administrative Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, communication, signature, resolution, representation, notice, consent, certificate, electronic mail message, affidavit, letter, telegram, facsimile, telex or telephone message, statement or other document or conversation believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons, and upon advice and statements of legal counsel (including counsel to the Loan Parties), independent accountants and other experts selected by the Administrative Agent.  The Administrative Agent shall be fully justified in failing or refusing to take any action under this Agreement or any other Loan Document unless it shall first receive such advice or concurrence of the Required Lenders as it deems appropriate and, if it so requests, confirmation from the Lenders of their obligation to indemnify the Administrative Agent against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action.  The Administrative Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement or any other Loan Document in accordance with a request or consent of the Required Lenders and such request and any action taken or failure to act pursuant thereto shall be binding upon each Lender.  For purposes of determining compliance with the conditions specified in Section 12, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received written notice from such Lender prior to the proposed Closing Date specifying its objection thereto.

14.6Notice of Default.  The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of any Event of Default or Unmatured Event of Default except with respect to defaults in the payment of principal, interest and fees required to be paid to the Administrative Agent for the account of the Lenders, unless the Administrative Agent shall have received written notice from a Lender or any Loan Party referring to this Agreement, describing such Event of Default or Unmatured Event of Default and stating that such notice is a “notice of default”.  The Administrative Agent will notify the Lenders of its receipt of any such notice.  The Administrative Agent shall take such action with respect to such Event of Default or Unmatured Event of Default as may be requested by the Required Lenders in accordance with Section 13; provided that unless and until the Administrative Agent has received any such

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request, the Administrative Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Event of Default or Unmatured Event of Default as it shall deem advisable or in the best interest of the Lenders.

14.7Credit Decision.  Each Lender acknowledges that the Administrative Agent has not made any representation or warranty to it, and that no act by the Administrative Agent hereafter taken, including any consent and acceptance of any assignment or review of the affairs of the Loan Parties, shall be deemed to constitute any representation or warranty by the Administrative Agent to any Lender as to any matter, including whether the Administrative Agent has disclosed material information in its possession.  Each Lender represents to the Administrative Agent that it has, independently and without reliance upon the Administrative Agent and based on such documents and information as it has deemed appropriate, made its own appraisal of and investigation into the business, prospects, operations, property, financial and other condition and creditworthiness of the Loan Parties, and made its own decision to enter into this Agreement and to extend credit to the Company hereunder.  Each Lender also represents that it will, independently and without reliance upon the Administrative Agent and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under this Agreement and the other Loan Documents, and to make such investigations as it deems necessary to inform itself as to the business, prospects, operations, property, financial and other condition and creditworthiness of Loan Parties.  Except for notices, reports and other documents expressly herein required to be furnished to the Lenders by the Administrative Agent, the Administrative Agent shall not have any duty or responsibility to provide any Lender with any credit or other information concerning the business, prospects, operations, property, financial or other condition or creditworthiness of Loan Parties which may come into the possession of the Administrative Agent.

14.8Indemnification.  Whether or not the transactions contemplated hereby are consummated, each Lender shall indemnify upon demand the Administrative Agent and its directors, officers, employees and agents (to the extent not reimbursed by or on behalf of the Loan Parties and without limiting the obligation of the Loan Parties to do so), according to its applicable Pro Rata Share, from and against any and all indemnified liabilities contemplated by Section 16.5(b); provided that no Lender shall be liable for any payment to any such Person of any portion of the indemnified liabilities contemplated by Section 16.5(b) to the extent determined by a final, nonappealable judgment by a court of competent jurisdiction to have resulted from the applicable Person’s own gross negligence or willful misconduct.  No action taken in accordance with the directions of the Required Lenders shall be deemed to constitute gross negligence or willful misconduct for purposes of this Section.  Without limitation of the foregoing, each Lender shall reimburse the Administrative Agent upon demand for its ratable share of any costs or out-of-pocket expenses (including Attorney Costs and Taxes) incurred by the Administrative Agent in connection with the preparation, execution, delivery, administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under, this Agreement, any other Loan Document, or any document contemplated by or referred to herein, to the extent that the Administrative Agent is not reimbursed for such expenses by or on behalf of the Loan Parties.  The undertaking in this Section shall survive repayment of the Loans, cancellation of the Note, expiration or termination of the Letters of Credit, any foreclosure under, or modification,

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release or discharge of, any or all of the Collateral Documents, termination of this Agreement and the resignation or replacement of the Administrative Agent.

14.9Administrative Agent in Individual Capacity.  PrivateBank and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting or other business with the Loan Parties and Affiliates as though PrivateBank were not the Administrative Agent hereunder and without notice to or consent of any Lender.  Each Lender acknowledges that, pursuant to such activities, PrivateBank or its Affiliates may receive information regarding the Loan Parties or their Affiliates (including information that may be subject to confidentiality obligations in favor of such Loan Parties or such Affiliate) and acknowledge that the Administrative Agent shall be under no obligation to provide such information to them.  With respect to their Loans (if any),  PrivateBank and its Affiliates shall have the same rights and powers under this Agreement as any other Lender and may exercise the same as though PrivateBank were not the Administrative Agent, and the terms “Lender” and “Lenders” include PrivateBank and its Affiliates, to the extent applicable, in their individual capacities.

14.10Successor Administrative Agent.  The Administrative Agent may resign as Administrative Agent upon 30 days’ notice to the Lenders.  If the Administrative Agent resigns under this Agreement, the Required Lenders shall, with (so long as no Event of Default exists) the consent of the Loan Parties (which shall not be unreasonably withheld or delayed), appoint from among the Lenders a successor agent for the Lenders.  If no successor agent is appointed prior to the effective date of the resignation of the Administrative Agent, the Administrative Agent may appoint, after consulting with the Lenders and the Loan Parties, a successor agent from among the Lenders.  Upon the acceptance of its appointment as successor agent hereunder, such successor agent shall succeed to all the rights, powers and duties of the retiring Administrative Agent and the term “Administrative Agent” shall mean such successor agent, and the retiring Administrative Agent’s appointment, powers and duties as Administrative Agent shall be terminated. After any retiring Administrative Agent’s resignation hereunder as Administrative Agent, the provisions of this Section 14 and Section 16.5 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Administrative Agent under this Agreement.  If no successor agent has accepted appointment as Administrative Agent by the date which is 30 days following a retiring Administrative Agent’s notice of resignation, the retiring Administrative Agent’s resignation shall nevertheless thereupon become effective and the Lenders shall perform all of the duties of the Administrative Agent hereunder until such time, if any, as the Required Lenders appoint a successor agent as provided for above.

14.11Collateral Matters.  The Lenders irrevocably authorize the Administrative Agent, at its option and in its discretion, (a) to release any Lien granted to or held by the Administrative Agent under any Collateral Document (i) upon termination of the Commitments and irrevocable payment in full in cash of all Loans and all other obligations of the Loan Parties hereunder and the expiration or termination of all Letters of Credit; (ii) constituting property sold or to be sold or disposed of as part of or in connection with any disposition permitted hereunder (including the release of any guarantor); or (iii) subject to Section 16.1, if approved, authorized or ratified in writing by the Required Lenders; or (b) to subordinate its interest in any Collateral to any holder of a Lien on such Collateral which is permitted by Section 11.2(d)(i) or (d)(iii)  (it being

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understood that the Administrative Agent may conclusively rely on a certificate from any Loan Party in determining whether the Debt secured by any such Lien is permitted by Section 11.1(b)).  Upon request by the Administrative Agent at any time, the Lenders will confirm in writing the Administrative Agent’s authority to release, or subordinate its interest in, particular types or items of Collateral pursuant to this Section 14.11.  Each Lender hereby authorizes the Administrative Agent to give blockage notices in connection with any Subordinated Debt at the direction of Required Lenders and agrees that it will not act unilaterally to deliver such notices.

14.12Administrative Agent May File Proofs of Claim.  In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to any Loan Party, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the Loan Parties) shall be entitled and empowered, by intervention in such proceeding or otherwise:

(a)to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans, and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders and the Administrative Agent and their respective agents and counsel and all other amounts due the Lenders and the Administrative Agent under Sections 5 and 16.5) allowed in such judicial proceedings; and

(b)to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;

and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under Sections 5 and 16.5.

Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding.

14.13Other Agents; Arrangers and Managers.  None of the Lenders or other Persons identified on the facing page or signature pages of this Agreement as a “syndication agent,” “co-agent,” “book manager,” “lead manager,” “arranger,” “lead arranger” or “co-arranger”, if any, shall have any right, power, obligation, liability, responsibility or duty under this Agreement other than, in the case of such Lenders, those applicable to all Lenders as such.  Without limiting the foregoing, none of the Lenders or other Persons so identified shall have or be deemed to have

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any fiduciary relationship with any Lender.  Each Lender acknowledges that it has not relied, and will not rely, on any of the Lenders or other Persons so identified in deciding to enter into this Agreement or in taking or not taking action hereunder.

SECTION 15THE LOAN PARTIES.

15.1Appointment of the Company.  Each Loan Party hereby appoints and authorizes the Company to take such action as its agent on its behalf and to exercise such powers under the Loan Documents as are delegated to the Company by the terms thereof, together with such power that are reasonably incidental thereto, and the Company hereby accepts such appointment.

15.2Relationship Among the Loan Parties.

(a)JOINT AND SEVERAL LIABILITY.  EACH LOAN PARTY AGREES THAT IT IS LIABLE, JOINTLY AND SEVERALLY WITH EACH OTHER LOAN PARTY, FOR THE PAYMENT OF ALL OBLIGATIONS OF THE LOAN PARTIES UNDER THIS AGREEMENT AND EACH OTHER LOAN DOCUMENT, AND THAT AGENT AND ANY LENDER CAN ENFORCE SUCH OBLIGATIONS AGAINST ANY OR ALL LOAN PARTIES, IN AGENT’S OR SUCH LENDER’S SOLE AND UNLIMITED DISCRETION.

(b)Waivers of Defenses.  The obligations of the Loan Parties hereunder shall not be released, in whole or in part, by any action or thing which might, but for this provision of this Agreement, be deemed a legal or equitable discharge of a surety or guarantor, other than irrevocable payment in full in cash and performance in full of the Obligations (except for contingent indemnity and other contingent Obligations not yet due and payable) at a time after any obligation of any Lender hereunder to make the Loans and to issue Letters of Credit shall have expired or been terminated and all outstanding Letters of Credit shall have expired or the liability of such Lender thereon shall have otherwise been discharged.  The purpose and intent of this Agreement is that the Obligations constitute the direct and primary obligations of each Loan Party and that the covenants, agreements and all obligations of each Loan Party hereunder be absolute, unconditional and irrevocable.  Each Loan Party shall be and remain liable for any deficiency remaining after foreclosure of any mortgage, deed of trust or security agreement securing all or any part of the Obligations, whether or not the liability of any other Person for such deficiency is discharged pursuant to statute, judicial decision or otherwise.

(c)Other Transactions.  Each of Agent and each Lender is expressly authorized to exchange, surrender or release with or without consideration any or all collateral and security which may at any time be placed with it by the Loan Parties or by any other Person on behalf of the Loan Parties, or to forward or deliver any or all such collateral and security directly to the Loan Parties for collection and remittance or for credit.  No invalidity, irregularity or unenforceability of any security for the Obligations or other recourse with respect thereto shall affect, impair or be a defense to the Loan Parties’ obligations under this Agreement or any other Loan Document.  The liabilities of each Loan Party hereunder shall not be affected or impaired by any failure, delay, neglect or omission on the part of Agent or any Lender to realize upon any of the Obligations of any other Loan Party to Agent or such Lender, or upon any collateral or security for any or all of the Obligations, nor by the taking by Agent or such Lender of (or the failure to take) any guaranty or guaranties to secure the Obligations, nor by the taking by Agent

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or such Lender of (or the failure to take or the failure to perfect its security interest in or other lien on) collateral or security of any kind.  No act or omission of Agent or any Lender, whether or not such action or failure to act varies or increases the risk of, or affects the rights or remedies of a Loan Party, shall affect or impair the obligations of the Loan Parties hereunder.

(d)Actions Not Required.  Each Loan Party, to the extent permitted by applicable law, hereby waives any and all right to cause a marshaling of the assets of any other Loan Party or any other action by any court or other governmental body with respect thereto or to cause Agent or any Lender to proceed against any security for the Obligations or any other recourse which Agent or such Lender may have with respect thereto and further waives any and all requirements that Agent or any Lender institute any action or proceeding at law or in equity, or obtain any judgment, against any other Loan Party or any other Person, or with respect to any collateral security for the Obligations, as a condition precedent to making demand on or bringing an action or obtaining and/or enforcing a judgment against, such Loan Party under this Agreement or any other Loan Document.

(e)No Subrogation.  Notwithstanding any payment or payments made by any Loan Party hereunder or any setoff or application of funds of any Loan Party by Agent or any Lender, such Loan Party shall not be entitled to be subrogated to any of the rights of Agent or such Lender against any other Loan Party or any other guarantor or any collateral security or guaranty or right of offset held by Agent or such Lender for the payment of the Obligations, nor shall such Loan Party seek or be entitled to seek any contribution or reimbursement from any other Loan Party or any other guarantor in respect of payments made by such Loan Party hereunder, until all amounts owing to each Lender by the Loan Parties on account of the Obligations are irrevocably paid in full in cash.  If any amount shall be paid to a Loan Party on account of such subrogation rights at any time when all of the Obligations shall not have been irrevocably paid in full in cash, such amount shall be held by that Loan Party in trust for Agent or such Lender, segregated from other funds of that Loan Party, and shall, forthwith upon receipt by the Loan Party, be turned over to Agent or such Lender in the exact form received by the Loan Party (duly indorsed by the Loan Party to Agent or such Lender, if required), to be applied against the Obligations, whether matured or unmatured, in such order as Agent or such Lender may determine.

(f)Application of Payments.  Any and all payments upon the Obligations made by the Loan Parties or by any other Person, and/or the proceeds of any or all collateral or security for any of the Obligations, may be applied by Agent or any Lender on such items of the Obligations as Agent or any Lender may elect.

(g)Recovery of Payment.  If any payment received by Agent or any Lender and applied to the Obligations is subsequently set aside, recovered, rescinded or required to be returned for any reason (including, without limitation, the bankruptcy, insolvency or reorganization of a Loan Party or any other obligor), the Obligations to which such payment was applied shall, to the extent permitted by applicable law, be deemed to have continued in existence, notwithstanding such application, and each Loan Party shall be jointly and severally liable for such Obligations as fully as if such application had never been made.  References in this Agreement to amounts “irrevocably paid” or to “irrevocable payment” refer to payments that cannot be set aside, recovered, rescinded or required to be returned for any reason.

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(h)Loan Parties’ Financial Condition.  Each Loan Party is familiar with the financial condition of the other Loan Parties, and each Loan Party has executed and delivered this Agreement based on that Loan Party’s own judgment and not in reliance upon any statement or representation of Agent or any Lender.  Neither Agent nor any Lender shall have any obligation to provide any Loan Party with any advice whatsoever or to inform any Loan Party at any time of Agent’s or such Lender’s actions, evaluations or conclusions on the financial condition or any other matter concerning the Loan Parties.

(i)Bankruptcy of the Loan Parties.  Each Loan Party expressly agrees that, to the extent permitted by applicable law, the liabilities and obligations of that Loan Party under this Agreement shall not in any way be impaired or otherwise affected by the institution by or against any other Loan Party or any other Person of any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings, or any other similar proceedings for relief under any bankruptcy law or similar law for the relief of debtors and that any discharge of any of the Obligations pursuant to any such bankruptcy or similar law or other law shall not diminish, discharge or otherwise affect in any way the obligations of that Loan Party under this Agreement or any other Loan Document, and that upon the institution of any of the above actions, such obligations shall be enforceable against that Loan Party.

(j)Limitation; Insolvency Laws.  As used in this Section 15.2(j):  (a) the term “Applicable Insolvency Laws” means the laws of the United States of America or of any State, province, nation or other governmental unit relating to bankruptcy, reorganization, arrangement, adjustment of debts, relief of debtors, dissolution, insolvency, fraudulent transfers or conveyances or other similar laws (including, without limitation, 11 U.S.C. §547, §548, §550 and other “avoidance” provisions of Title 11 of the United Stated Code) as applicable in any proceeding in which the validity and/or enforceability of this Agreement against any Loan Party, or any Specified Lien is in issue; and (b) “Specified Lien” means any security interest, mortgage, lien or encumbrance granted by any Loan Party securing the Obligations, in whole or in part.  Notwithstanding any other provision of this Agreement, if, in any proceeding, a court of competent jurisdiction determines that with respect to any Loan Party, this Agreement or any other Loan Document or any Specified Lien would, but for the operation of this Section, be subject to avoidance and/or recovery or be unenforceable by reason of Applicable Insolvency Laws, this Agreement and each such Specified Lien shall be valid and enforceable against such Loan Party, only to the maximum extent that would not cause this Agreement, such other Loan Document or such Specified Lien to be subject to avoidance, recovery or unenforceability.  To the extent that any payment to, or realization by, Agent or any Lender on the Obligations exceeds the limitations of this Section and is otherwise subject to avoidance and recovery in any such proceeding, the amount subject to avoidance shall in all events be limited to the amount by which such actual payment or realization exceeds such limitation, and this Agreement and such other Loan Document as limited shall in all events remain in full force and effect and be fully enforceable against such Loan Party.  This Section is intended solely to reserve the rights of Agent and each Lender hereunder against each Loan Party, in such proceeding to the maximum extent permitted by Applicable Insolvency Laws and neither the Loan Parties, any guarantor of the Obligations nor any other Person shall have any right, claim or defense under this Section that would not otherwise be available under Applicable Insolvency Laws in such proceeding.

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SECTION 16GENERAL.

16.1Waiver, Amendments, Etc.  No amendment or waiver of any provision of this Agreement or any other Loan Document, and no consent to any departure by the Company or any other Loan Party therefrom, shall be effective unless in writing signed by the Required Lenders and the Company or the applicable Loan Party, as the case may be, and acknowledged by Agent, and each such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that no such amendment, waiver or consent shall:

(a)waive any condition set forth in Section 12 without the written consent of each Lender; provided, however, in the sole discretion of Agent, only a waiver by Agent shall be required with respect to immaterial matters or items with respect to which the Company has given assurances satisfactory to Agent that such items shall be delivered promptly following the Closing Date;

(b)extend or increase the Commitment of any Lender without the written consent of such Lender;

(c)postpone any date fixed by this Agreement or any other Loan Document for any payment (excluding mandatory prepayments) of principal, interest, fees or other amounts due to Lenders (or any of them) hereunder or under any other Loan Document without the written consent of each Lender directly affected thereby;

(d)reduce the principal of, or the rate of interest specified herein on, any Loan or Letter of Credit, or any fees or other amounts payable hereunder or under any other Loan Document, without the written consent of each Lender directly affected thereby;

(e)change any provision of this Agreement in a manner that would alter the pro rata sharing of payments required thereby without the written consent of each Lender;

(f)change any provision of this Section or the definition of “Required Lenders” or any other provision hereof specifying the number or percentage of Lenders required to amend, waive or otherwise modify any rights hereunder or make any determination or grant any consent hereunder, without the written consent of each Lender; or

(g)release the Liens on all or substantially all of the Collateral in any transaction or series of related transactions except in accordance with the terms of any Loan Document, without the written consent of each Lender;

and, provided further, that (i) no amendment, waiver or consent shall, unless in writing and signed by the L/C Issuer in addition to the Lenders required above, affect the rights or duties of the L/C Issuer under this Agreement or any Issuer Document relating to any Letter of Credit issued or to be issued by it; and (ii) no amendment, waiver or consent shall, unless in writing and signed by Agent in addition to the Lenders required above, affect the rights or duties of Agent under this Agreement or any other Loan Document.  Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of such Lender may not be increased or extended without the consent of such Lender.  No delay on the part of the Lender in the exercise of any right, power or remedy shall operate as a waiver thereof, nor shall any single or

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partial exercise by any of them of any right, power or remedy preclude other or further exercise thereof, or the exercise of any other right, power or remedy.  Any such amendment, modification, waiver or consent described in this Section 16.1 shall be effective only in the specific instance and for the specific purpose for which given.

If, in connection with any proposed amendment, modification, waiver or termination requiring the consent of the Required Lenders, but the consent of other Lender(s) whose consent is required is not obtained (any such Lender whose consent is not obtained being referred to as a “Non-Consenting Lender”), then, so long as the Administrative Agent is not a Non-Consenting Lender, the Administrative Agent and/or an Eligible Assignee or Eligible Assignees designated by the Administrative Agent shall have the right to purchase from such Non-Consenting Lender(s), and such Non-Consenting Lender(s) agree that they shall, upon the Administrative Agent’s request, sell and assign to the Administrative Agent and/or such Eligible Assignee or Eligible Assignees, all of the Loans, participations in L/C Obligations and Commitments of such Non-Consenting Lender(s) for an amount equal to the outstanding principal balance of all Obligations held by such Non-Consenting Lender(s) and all accrued interest, fees, expenses and other amounts then due with respect thereto through the date of sale, such purchase and sale to be consummated pursuant to an executed Assignment Agreement (as defined below).

To the extent of any conflicts between Section 16.1 and Section 2.6, the provisions of Section 2.6 shall control.

16.2Confirmations.  Each Loan Party and each Lender agree from time to time, upon written request received by it from the other, to confirm to the other in writing the aggregate unpaid principal amount of the Loans then outstanding under the Note.

16.3Notices.  Except as otherwise provided in Sections 2.2.2 and 2.2.3 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 and 2.2.3, 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.

16.4Computations.  Where the character or amount of any asset or liability or item of income or expense is required to be determined, or any consolidation or other accounting computation is required to be made, for the purpose of this Agreement, such determination or calculation shall, to the extent applicable and except as otherwise specified in this Agreement, be made in accordance with GAAP, consistently applied; provided that if the Company notifies Agent that the Company (or any other Loan Party) wishes to amend any covenant in Section 10 (or any related definition) to eliminate or to take into account the effect of any change in GAAP on the operation of such covenant (or if Agent notifies the Company that Agent wishes to amend

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Section 10 (or any related definition) for such purpose), then the Loan Parties’ 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 Agent.

16.5Expenses, Indemnity, Damage Waiver.

(a)Costs and Expenses.  The Loan Parties shall pay (i) all reasonable out-of-pocket expenses incurred by Agent and its Affiliates (including the reasonable fees, charges and disbursements of counsel for Agent), in connection with the syndication of the credit facilities provided for herein (excluding syndication to the initial Lender), the preparation, negotiation, execution, delivery and administration of this Agreement and the other Loan Documents or any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), (ii) all reasonable out-of-pocket expenses incurred by the L/C Issuer in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all out-of-pocket expenses incurred by Agent, any Lender or the L/C Issuer (including the fees, charges and disbursements of any counsel for Agent, any Lender or the L/C Issuer), and shall pay all fees and time charges for attorneys who may be employees of Agent, any Lender or the L/C Issuer, in connection with the enforcement or protection of its rights (A) in connection with this Agreement and the other Loan Documents, including its rights under this Section, or (B) in connection with the Loans made or Letters of Credit issued hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.

(b)Indemnification by the Loan Parties.  The Loan Parties shall indemnify Agent (and any sub-agent thereof), each Lender and the L/C Issuer, and each Related Party of any of the foregoing Persons (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 the Company or any other Loan Party arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any other Loan 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, or, in the case of Agent (and any sub-agent thereof) and its Related Parties only, the administration of this Agreement and the other Loan Documents, (ii) any Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by the L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on or from any property owned or operated by the Loan Parties or any of their Subsidiaries, or any Environmental Liability related in any way to the Loan Parties 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 the Company or any other Loan Party,

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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 the Company or any other Loan Party against an Indemnitee for breach in bad faith of such Indemnitee’s obligations hereunder or under any other Loan Document, if the Company or such other Loan Party has obtained a final and nonappealable judgment in its favor on such claim as determined by a court of competent jurisdiction.

(c)Reimbursement by Lenders.  To the extent that the Loan Parties for any reason fail to irrevocably pay any amount required under subsection (a) or (b) of this Section to be paid by them to Agent (or any sub-agent thereof), the L/C Issuer or any Related Party of any of the foregoing, each Lender severally agrees to pay to Agent (or any such sub-agent), the L/C Issuer or such Related Party, as the case may be, such Lender’s Applicable Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount, provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against Agent (or any such sub-agent) or the L/C Issuer in its capacity as such, or against any Related Party of any of the foregoing acting for Agent (or any such sub-agent) or L/C Issuer in connection with such capacity.

(d)Waiver of Consequential Damages, Etc.  To the fullest extent permitted by applicable law, the Loan Parties shall not assert, and hereby waive, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or Letter of Credit or the use of the proceeds thereof.  No Indemnitee referred to in subsection (b) above shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed to such unintended recipients by such Indemnitee through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby other than for direct or actual damages resulting from the gross negligence or willful misconduct of such Indemnitee as determined by a final and nonappealable judgment of a court of competent jurisdiction.

(e)Payments.  All amounts due under this Section shall be payable not later than ten Business Days after demand therefor.

(f)Survival.  The agreements in this Section shall survive the resignation of Agent and the L/C Issuer, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations.

16.6Payments Set Aside.  To the extent that any payment by or on behalf of the Loan Parties is made to Agent, the L/C Issuer or any Lender, or Agent, the L/C Issuer or any Lender

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exercises its right of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by Agent, the L/C Issuer or such Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Applicable Insolvency Laws or otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such setoff had not occurred, and (b) each Lender and the L/C Issuer severally agrees to pay to Agent upon demand its applicable share (without duplication) of any amount so recovered from or repaid by Agent, plus interest thereon from the date of such demand to the date such payment is made at a rate per annum equal to the Federal Funds Rate from time to time in effect.  The obligations of the Lenders and the L/C Issuer under clause (b) of the preceding sentence shall survive the payment in full of the Obligations and the termination of this Agreement.

16.7Successors and Assigns.

(a)Any Lender may at any time assign to one or more Eligible Assignees all or any portion of such Lender’s Loans and Commitments, provided, that such Lender shall consult with the Company prior to such assignment and, so long as no Event of Default exists, such assignment shall be to a Person mutually agreed to by the Company (which agreement shall not be unreasonably withheld) and such Lender, except that the Company’s agreement shall not be required if an Event of Default exists or for an assignment by a Lender to a Lender or an Affiliate of a Lender.  Any such assignment shall be in a minimum aggregate amount equal to $5,000,000 or, if less, the remaining Commitment and Loans held by such Lender.  The Company and the Administrative Agent shall be entitled to continue to deal solely and directly with such Lender in connection with the interests so assigned to an Eligible Assignee until the Administrative Agent shall have received and accepted an effective assignment agreement (an “Assignment Agreement”), in form and substance acceptable to the Administrative Agent, executed, delivered and fully completed by the applicable parties thereto and a processing fee of $3,500 paid by the applicable Eligible Assignee or the assigning Lender.  The Company shall be deemed to have granted its consent to any assignment requiring its consent hereunder unless the Company has expressly objected to such assignment within three Business Days after notice thereof.

(b)Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank, and this Section shall not apply to any such pledge or assignment of a security interest; provided that no such pledge or assignment of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.

(c)Any Lender may at any time sell to one or more Persons participating interests in its Loans, Commitments or other interests hereunder.  In the event of a sale by such Lender of a participating interest, (i) such Lender’s obligations hereunder shall remain unchanged for all purposes, (ii) the Loan Parties shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations hereunder and (iii) all amounts payable by the Loan Parties shall be determined as if such Lender had not sold such participation and shall

71

be paid directly to such Lender.  No participant shall have any direct or indirect voting rights hereunder.  The Loan Parties agree that if amounts outstanding under this Agreement are due and payable (as a result of acceleration or otherwise), each participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement and with respect to any Letter of Credit to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement; provided that such right of set-off shall be subject to the obligation of each participant to share with each Lender, and each Lender agrees to share with each participant.  The Loan Parties also agree that each participant shall be entitled to the benefits of Section 7.6 or 8 as if it were a Lender (provided that on the date of the participation no participant shall be entitled to any greater compensation pursuant to Section 7.6 or 8 than would have been paid to the Lender on such date if no participation had been sold.

16.8Register.  The Administrative Agent shall maintain a copy of each Assignment Agreement delivered and accepted by it and register (the “Register”) for the recordation of names and addresses of the Lenders and the Commitment of each Lender from time to time and whether such Lender is the original Lender or the Assignee.  No assignment shall be effective unless and until the Assignment Agreement is accepted and registered in the Register. All records of transfer of a Lender’s interest in the Register shall be conclusive, absent manifest error, as to the ownership of the interests in the Loans. The Administrative Agent shall not incur any liability of any kind with respect to any Lender with respect to the maintenance of the Register.

16.9GOVERNING LAW.  THIS AGREEMENT AND EACH NOTE SHALL BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF MINNESOTA APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES.

16.10Confidentiality.  As required by federal law and the Agent’s policies and practices, the Agent may need to obtain, verify, and record certain customer identification information and documentation in connection with opening or maintaining accounts, or establishing or continuing to provide services.  Each of Agent and each Lender agrees to use commercially reasonable efforts (equivalent to the efforts each of Agent and each Lender applies to maintain the confidentiality of its own confidential information) to maintain as confidential all information provided to it by any Loan Party and designated as confidential, except that Agent and each Lender may disclose such information (a) to Persons employed or engaged by Agent or such Lender in evaluating, approving, structuring or administering the Loans and the Commitment; (b) to any assignee or participant or potential assignee or participant that has agreed to comply with the covenant contained in this Section 16.11 (and any such assignee or participant or potential assignee or participant may disclose such information to Persons employed or engaged by them as described in clause (a) above); (c) as required or requested by any federal or state regulatory authority or examiner, or any insurance industry association, or as reasonably believed by Agent or such Lender to be compelled by any court decree, subpoena or legal or administrative order or process; (d) as, on the advice of Agent’s or such Lender’s counsel, is required by law; (e) in connection with the exercise of any right or remedy under the Loan Documents or in connection with any litigation to which Agent or such Lender is a party; (f) to any nationally recognized rating agency that requires access to information about Agent or

72

such Lender’s investment portfolio in connection with ratings issued with respect to the Lender; (g) to any Affiliate of Agent or such Lender who may provide Bank Products to the Loan Parties; (h) to Lender’s independent auditors and other professional advisors as to which such information has been identified as confidential; or (i) that ceases to be confidential through no fault of Agent or such Lender.  Notwithstanding the foregoing, the Company consents to the publication by Agent and each Lender of a tombstone or similar advertising material relating to the financing transactions contemplated by this Agreement, and each of Agent and each Lender reserves the right to provide to industry trade organizations information necessary and customary for inclusion in league table measurements.  Notwithstanding anything in this Agreement or any other Loan Document to the contrary, any information with respect to the “tax treatment” or “tax structure” (in each case, within the meaning of Treasury Regulation Section 1.6011-4) of the transactions contemplated hereby shall not be confidential and Agent, each Lender and other parties hereto may disclose without limitation of any kind any information that is provided to Agent or such Lender with respect to the “tax treatment” or “tax structure” (in each case, within the meaning of Treasury Regulation Section 1.6011-4); provided, that to the extent any Loan Document contains information that relates to the “tax treatment” or “tax structure” and contains other information, this paragraph shall only apply to the information regarding the “tax treatment” or “tax structure.”

16.11Severability.  Whenever possible each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement.  All obligations of the Loan Parties and rights of Agent and each Lender expressed herein or in any other Loan Document shall be in addition to and not in limitation of those provided by applicable law.

16.12Nature of Remedies.  All Obligations of the Loan Parties and rights of Agent and each Lender expressed herein or in any other Loan Document shall be in addition to and not in limitation of those provided by applicable law.  No failure to exercise and no delay in exercising, on the part of Agent or any Lender, any right, remedy, power or privilege hereunder, shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

16.13Entire Agreement.  This Agreement, together with the other Loan Documents, embodies the entire agreement and understanding among the parties hereto and supersedes all prior or contemporaneous agreements and understandings of such Persons, verbal or written, relating to the subject matter hereof and thereof (except as relates to the fees described in Section 5.2) and any prior arrangements made with respect to the payment by the Loan Parties of (or any indemnification for) any fees, costs or expenses payable to or incurred (or to be incurred) by or on behalf of Agent or any Lender.

16.14Counterparts.  This Agreement may be executed in any number of counterparts and by the different parties hereto on separate counterparts and each such counterpart shall be deemed to be an original, but all such counterparts shall together constitute but one and the same Agreement.  Receipt of an executed signature page to this Agreement by facsimile or other

73

electronic transmission shall constitute effective delivery thereof.  Electronic records of executed Loan Documents maintained by the Lender shall deemed to be originals.

16.15Successors and Assigns.  This Agreement shall be binding upon each Loan Party, Agent, the Lenders and their respective successors and assigns, and shall inure to the benefit of each Loan Party, Agent, the Lenders and the successors and assigns of the Lenders.  No other Person shall be a direct or indirect legal beneficiary of, or have any direct or indirect cause of action or claim in connection with, this Agreement or any of the other Loan Documents.  No Loan Party may assign or transfer any of its rights or Obligations under this Agreement without the prior written consent of Agent and each Lender.

16.16Captions.  Section captions used in this Agreement are for convenience only and shall not affect the construction of this Agreement.

16.17Customer Identification - USA Patriot Act Notice.  Each Lender and PrivateBank (for itself and not on behalf of any other party) hereby notifies the Loan Parties that, pursuant to the requirements of the USA Patriot Act, Title III of Pub. L. 107-56, signed into law October 26, 2001 (the “Patriot Act”), it is required to obtain, verify and record information that identifies the Loan Parties, which information includes the name and address of the Loan Parties and other information that will allow such Lender or PrivateBank, as applicable, to identify the Loan Parties in accordance with the Patriot Act.

16.18Nonliability of Agent and each Lender.  The relationship between the Loan Parties on the one hand and Agent and each Lender on the other hand shall be solely that of Loan Parties, agent and lender.  Neither Agent nor any Lender has a fiduciary relationship with or duty to any Loan Party arising out of or in connection with this Agreement or any of the other Loan Documents, and the relationship between the Loan Parties, on the one hand, and the Lenders, on the other hand, in connection herewith or therewith is solely that of debtor and creditor.  Neither Agent nor any Lender undertakes any responsibility to any Loan Party to review or inform any Loan Party of any matter in connection with any phase of any Loan Party’s business or operations.  Each Loan Party agrees, on behalf of itself and each other Loan Party, that Agent and each Lender shall have no liability to any Loan Party (whether sounding in tort, contract or otherwise) for losses suffered by any Loan Party in connection with, arising out of, or in any way related to the transactions contemplated and the relationship established by the Loan Documents, or any act, omission or event occurring in connection therewith, unless it is determined in a final non-appealable judgment by a court of competent jurisdiction that such losses resulted from the gross negligence or willful misconduct of the party from which recovery is sought.  NEITHER AGENT NOR ANY LENDER SHALL HAVE ANY LIABILITY WITH RESPECT TO, AND EACH LOAN PARTY HEREBY WAIVES, RELEASES AND AGREES NOT TO SUE FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR ARISING OUT OF ITS ACTIVITIES IN CONNECTION HEREWITH OR THEREWITH (WHETHER BEFORE OR AFTER THE CLOSING DATE).  Each Loan Party acknowledges that it has been advised by counsel in the negotiation, execution and delivery of this Agreement and the other Loan Documents to which it is a party.  No joint venture is created hereby or by the other Loan Documents or otherwise exists by virtue of the transactions contemplated hereby among the Loan Parties and the Lender.

74

16.19FORUM SELECTION AND CONSENT TO JURISDICTION.  ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE COURTS OF THE STATE OF MINNESOTA OR IN THE UNITED STATES DISTRICT COURT SITTING IN MINNEAPOLIS, MINNESOTA; PROVIDED THAT NOTHING IN THIS AGREEMENT SHALL BE DEEMED OR OPERATE TO PRECLUDE AGENT OR ANY LENDER FROM BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION.  EACH LOAN PARTY HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF MINNESOTA AND OF THE UNITED STATES COURT SITTING IN HENNEPIN COUNTY, MINNESOTA FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE.  EACH LOAN PARTY FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF MINNESOTA.  EACH LOAN PARTY HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.

16.20WAIVER OF JURY TRIAL.  EACH LOAN PARTY, AGENT AND EACH LENDER HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT, ANY NOTE, ANY OTHER LOAN DOCUMENT AND ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR THEREWITH OR ARISING FROM ANY LENDING RELATIONSHIP EXISTING IN CONNECTION WITH ANY OF THE FOREGOING, AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.

[Signature pages follow.]

75

The parties hereto have caused this Agreement to be duly executed and delivered by their duly authorized officers as of the date first set forth above.

WINMARK CORPORATION
By:	/s/ Brett D. Heffes
Name:	Brett D. Heffes
Title:	President, Finance and Administration
WIRTH BUSINESS CREDIT, INC.
By:	/s/ Brett D. Heffes
Name:	Brett D. Heffes
Title:	Treasurer
WINMARK CAPITAL CORPORATION
By:	/s/ Brett D. Heffes
Name:	Brett D. Heffes
Title:	Chief Financial Officer and Treasurer
GROW BIZ GAMES, INC.
By:	/s/ Brett D. Heffes
Name:	Brett D. Heffes
Title:	Treasurer

Address for Notices:

c/o Winmark Corporation

605 Highway 169 North

Suite 400

Minneapolis, MN 55422

Attention:  Chief Financial Officer

Telephone:  (763) 520-8500

Fax:  (763) 520-8469

Signature Page to Credit Agreement

THE PRIVATEBANK AND TRUST COMPANY, as a Lender and as Administrative Agent for the Lenders
By:	/s/ Peter Pricco
Name:	Peter Pricco
Title:	Managing Director

Address for Notices:

The PrivateBank and Trust Company

50 South Sixth Street, Suite 1415

Minneapolis, MN 55402

Attention:  Peter Pricco

Telephone:  (612) 392-2202

Fax:  (612) 605-6193

Signature Page to Credit Agreement

SCHEDULE 2.1

COMMITMENTS

AND APPLICABLE PERCENTAGES

Lender	Commitment		Applicable Percentage
The PrivateBank and Trust Company	$	30,000,000	100.00	%
Total	$	30,000,000	100.00

SCHEDULE 9.6

LITIGATION AND CONTINGENT LIABILITIES

None.

SCHEDULE 9.7

OWNERSHIP OF PROPERTIES; LIENS

1.             On August 30, 2000, the Company (f/k/a Grow Biz International, Inc.) signed a Trademark License Agreement (“Agreement”) with Hollis Technologies, Inc., a Florida limited liability company (“Hollis”), granting Hollis the use of the COMPUTER RENAISSANCE AND DESIGN trademarks (U.S. Reg. No. 1,875,949, Canada TM 474,198 and Japan trademark No. 4,313,894) for term of twenty (20) years, with automatic successive renewals of ten (10) years each.  In addition, per the Agreement, Hollis may request, and the Company will grant to Hollis, a license for the use of the CIRCULAR ARROWS DESIGN trademark under the same terms and conditions.

2.             In 2001 and 2002, the Company entered into Trademark License Agreements with 14 former ReTool® franchisees and a former employee of Winmark for the license of the RETOOL (U.S.  Reg.  No. 2,304,808) and RETOOL AND DESIGN (U.S.  Reg.  No. 2,267,043) trademarks for a period of 10 years with an option to renew for an additional ten (10) year period.

3.             See attached lien summary.

DEBTOR:            WINMARK CORPORATION

Jurisdiction	Lien Type	Debtor	Secured Party	Filing Information	Collateral
Minnesota Secretary of State	UCC	Winmark Corporation	US Bancorp	File No.: 200515352382 Filed: 2-24-05 Lapse: 2-24-10	Leased equipment (informational filing)
	UCC	Winmark Corporation	US Bancorp	File No.: 200517859904 Filed: 9-02-05 Lapse: 9-02-10	Leased equipment (informational filing)
	UCC	Winmark Corporation	US Bancorp	File No.: 200517888515 Filed: 9-07-05 Lapse: 9-07-10	Leased equipment (informational filing)
	UCC	Winmark Corporation	US Bancorp	File No.: 200519313670 Filed: 12-28-05 Lapse: 12-28-10	Leased equipment (informational filing)
	UCC	Winmark Corporation	US Bancorp	File No.: 200614556687 Filed: 12-06-06 Lapse: 12-06-11	Leased equipment (informational filing)

Debtor:WINMARK CAPITAL CORPORATION

Jurisdiction	Lien Type	Debtor	Secured Party	Filing Information	Collateral
Minnesota Secretary of State	UCC	Winmark Capital Corporation	Wells Fargo Equipment Finance, Inc.	File No.: 200518175801	A certain Lease Agreement, including all payments, revenues, insurance, proceeds, all right, title and interest of Debtor in and to the equipment leased

Jurisdiction	Lien Type	Debtor	Secured Party	Filing Information	Collateral
					thereunder
	UCC	Winmark Capital Corporation	Wells Fargo Equipment Finance, Inc.	File No.:  200810362801	A certain Lease Agreement, including all payments, revenues, insurance, proceeds, all right, title and interest of Debtor in and to the equipment leased thereunder
	UCC	Winmark Capital Corporation	Wells Fargo Equipment Finance, Inc.	File No.:  200810554528	A certain Lease Agreement, including all payments, revenues, insurance, proceeds, all right, title and interest of Debtor in and to the equipment leased thereunder
	UCC	Winmark Capital Corporation	Wells Fargo Equipment Finance, Inc.	File No.:  200811963536	A certain Lease Agreement, including all payments, revenues, insurance, proceeds, all right, title and interest of Debtor in and to the equipment leased thereunder
	UCC	Winmark Capital Corporation	Wells Fargo Equipment Finance, Inc.	File No.:  200811963574	A certain Lease Agreement, including all payments, revenues, insurance, proceeds, all right, title and interest of

Jurisdiction	Lien Type	Debtor	Secured Party	Filing Information	Collateral
					Debtor in and to the equipment leased thereunder
	UCC	Winmark Capital Corporation	Wells Fargo Equipment Finance, Inc.	File No.:  200811963613	A certain Lease Agreement, including all payments, revenues, insurance, proceeds, all right, title and interest of Debtor in and to the equipment leased thereunder
	UCC	Winmark Capital Corporation	Wells Fargo Equipment Finance, Inc.	File No.:  200811963651	A certain Lease Agreement, including all payments, revenues, insurance, proceeds, all right, title and interest of Debtor in and to the equipment leased thereunder
	UCC	Winmark Capital Corporation	Wells Fargo Equipment Finance, Inc.	File No.:  200811963699	A certain Lease Agreement, including all payments, revenues, insurance, proceeds, all right, title and interest of Debtor in and to the equipment leased thereunder
	UCC	Winmark Capital Corporation	Wells Fargo Equipment Finance,	File No.:  200813630128	A certain Lease Agreement, including all payments, revenues,

Jurisdiction	Lien Type	Debtor	Secured Party	Filing Information	Collateral
			Inc.		insurance, proceeds, all right, title and interest of Debtor in and to the equipment leased thereunder
	UCC	Winmark Capital Corporation	SG Equipment Finance USA Corp.	File No.:  200914553972	A certain Lease Agreement, including all payments, revenues, insurance, proceeds, all right, title and interest of Debtor in and to the equipment leased thereunder
	UCC	Winmark Capital Corporation	SG Equipment Finance USA Corp.	File No.:  200914571677	A certain Lease Agreement, including all payments, revenues, insurance, proceeds, all right, title and interest of Debtor in and to the equipment leased thereunder
	UCC	Winmark Capital Corporation	SG Equipment Finance USA Corp.	File No.:  200914572911	A certain Lease Agreement, including all payments, revenues, insurance, proceeds, all right, title and interest of Debtor in and to the equipment leased thereunder

Jurisdiction	Lien Type	Debtor	Secured Party	Filing Information	Collateral
	UCC	Winmark Capital Corporation	SG Equipment Finance USA Corp.	File No.:  201018636380	A certain Lease Agreement, including all payments, revenues, insurance, proceeds, all right, title and interest of Debtor in and to the equipment leased thereunder

DEBTOR:             WIRTH BUSINESS CREDIT, INC.

None.

DEBTOR:             GROW BIZ GAMES, INC.

None.

SCHEDULE 9.8

SUBSIDIARIES

	Company	Percent Ownership
(a)	Grow Biz Games, Inc.	100	%
	Wirth Business Credit, Inc.	100	%
	Winmark Capital Corporation	100	%
(b)	Tomsten, Inc.	18.3	%

SCHEDULE 9.17

REAL PROPERTY

Property Type:	Winmark Corporation headquarters	(Leased)
Property Location:	605 Highway 169 North, Suite 400
	Minneapolis, MN 55441
Lessor:	Utah State Retirement Investment Fund,
	an independent agency of the State of Utah
	c/o CB Richard Ellis
	510 Marquette Ave., Suite 250
	Minneapolis, MN 55435
Property Type:	Winmark Capital Corporation Office Space	(Leased)
Property Location:	1942 Broadway Suite # 318 & 317
	Boulder, CO 80302
Lessor:	Office Partners, Inc. (d/b/a Broadway Suites, Inc.)
	1942 Broadway
	Boulder, CO 80302
Property Type:	Winmark Capital Corporation Office Space	(Leased)
Property Location:	2 Ravinia Drive, Suite # 500
	Atlanta, GA 30346
Lessor:	The Regus Group
	3003 Summit Blvd., Suite 1400
	Atlanta, GA 30319
Property Type:	Winmark Capital Corporation Office Space	(Leased)
Property Location:	1309 State Street, Suite A
	Santa Barbara, CA 93101
Lessor:	State Street GBF, LLC
	116 East Sola Street
	Santa Barbara, CA 93101
Property Type:	Winmark Capital Corporation Office Space	(Leased)
Property Location:	233 East Carillo Street, Suite C
	Santa Barbara, CA 93101

Lessor:	MT-233 Office Building, LLC
	233 East Carillo Street, Suite D
	Santa Barbara, CA 93101

SCHEDULE 11.7

AFFILIATE TRANSACTIONS

None.

EXHIBIT A

FORM OF NOTE

	, 20
$	Minneapolis, Minnesota

The undersigned, jointly and severally, for value received, promise to pay to the order of                                (the “Lender”) at the Administrative Agent’s Office (as defined in the Credit Agreement), the principal sum of                                            Dollars ($                            ) or the aggregate unpaid amount of all Loans made to the undersigned by the Lender pursuant to the Credit Agreement referred to below (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 Loan from the date of such Loan until such 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, The PrivateBank and Trust Company, 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.

WINMARK CORPORATION	GROW BIZ GAMES, INC.
By:	By:
Name: Brett Heffes	Name: Brett Heffes
Title: President, Finance and Administration	Title: Treasurer
WIRTH BUSINESS CREDIT, INC.	WINMARK CAPITAL CORPORATION
By:	By:
Name: Brett Heffes	Name: Brett Heffes
Title: Treasurer	Title: Chief Financial Officer and Treasurer

EXHIBIT B

FORM OF COMPLIANCE CERTIFICATE

To:The PrivateBank and Trust Company (the “Administrative Agent”) and the other Lenders referred to below

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”), and THE PRIVATEBANK AND TRUST COMPANY (“PrivateBank”), as a Lender and as Administrative Agent for the Lenders.  Terms used but not otherwise defined herein are used herein as defined in the Credit Agreement.

I.Reports.  Enclosed herewith is a copy of the monthly report of the Loan Parties as of                   ,          (the “Computation Date”), which report fairly presents in all material respects the financial condition and results of operations of the Loan Parties as of the Computation Date and has been prepared in accordance with GAAP consistently applied.

II.Tangible Net Worth.  The Company hereby certifies and warrants to you that the following is a true and correct computation of the Tangible Net Worth requirement set forth in Section 11.15 of the Credit Agreement, which is equal to or greater than the sum of the minimum Tangible Net Worth from the immediately preceding month plus fifty percent (50%) of the net income of the month then ended, if positive:

A.	Shareholders’ equity:
	Common stock	$
	Other comprehensive income	$
	Retained earnings	$
	Total shareholders’ equity		$
B.	Subordinated Debt		$
C.	Intangible items:
	Goodwill	$
	Trademarks	$
	Trade names	$
	Service marks	$
	Copyrights	$
	Patents	$
	Licenses	$
	Deferred items	$

B-1

	Unamortized Debt discount	$
	Prepaid expenses(1)	$
	Other intangible items	$
	Total Intangible Items			$
D.	Investments:
	Investment in Tomsten, Inc.		$
	Investment in Bridge Funds Limited		$
	Additional Investments		$
	Total Investments			$
E.	Actual Tangible Net Worth [(A+B) – (C + D)]			$
F.	Minimum Tangible Net Worth from prior month end	$
	plus 50% of positive current month end net income	$
	Required Minimum Tangible Net Worth			$

III.Debt Service Coverage.  The Company hereby certifies and warrants to you that the following is a true and correct computation of the Debt service coverage requirement set forth in Section 11.16 of the Credit Agreement, which is not less than the ratio set forth in Section 11.16 of the Credit Agreement:

A.	TTM EBITDA:
	(i)	TTM income from operations	$
	(ii)	TTM leasing related cash interest expense	$
	(iii)	TTM depreciation	$
	(iv)	TTM amortization	$
	(v)	TTM compensation related to stock options	$
	TTM EBITDA [(i + ii + iii + iv + v)]		$
B.	Cash flow available for Debt service:
	(i)	TTM EBITDA	$
	(ii)	TTM capital expenditures	$
	(iii)	TTM cash taxes	$
	(iv)	TTM dividends and distributions	$

(1)  Excludes Income Tax Refund Receivable

B-2

		Cash flow available for Debt service [(i – (ii + iii + iv)]			$
	C.	Debt service:
		(i)	TTM principal payments (excluding principal payments under Fixed Rate Loans)		$
		(ii)	TTM cash interest expense (including leasing related cash interest expense)			$
		Debt Service [(i + ii)]				$
	Actual Debt service coverage ratio [B/C]:
	Required minimum covenant level
IV.	Maximum Senior Leverage.  The Company hereby certifies and warrants to you that the following is a true and correct computation of the total leverage requirement set forth in Section 11.17 of the Credit Agreement, which is not greater than the ratio set forth in Section 11.17 of the Credit Agreement:
	A.	TTM recourse senior Debt:		$
	B.	TTM EBITDA:		$
	Actual total leverage ratio [A/B]:
	Maximum covenant level

The Company further certifies to you that no Event of Default or Unmatured Event of Default has occurred and is continuing.

The Company has caused this Certificate to be executed and delivered by its duly authorized officer on                                    , 20      .

WINMARK CORPORATION

By:

Name:

Title:

B-3

EXHIBIT C

FORM OF BORROWING BASE CERTIFICATE

To:The PrivateBank and Trust Company (the “Administrative Agent”) and the Lenders referred to below

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”), THE PRIVATEBANK AND TRUST COMPANY (“PrivateBank”), 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 Company hereby certifies and warrants to the Administrative Agent and the Lenders that at the close of business on                     ,          (the “Calculation Date”), the Borrowing Base was $                    , computed as set forth on the schedule attached hereto.

Attached hereto is an aging of the Loan Parties’ lease receivables as of the date hereof.

The Company has caused this Certificate to be executed and delivered by its officer thereunto duly authorized on                     , 20    .

WINMARK CORPORATION

By:

Name:

Title:

SCHEDULE TO BORROWING BASE CERTIFICATE

Dated as of [                    ]

A.	Availability Created by Eligible Leased Assets
	Net book value of Eligible Leased Assets	$
	Advance rate	90	%
	Availability created by Eligible Leases	$
B.	Availability created by EBITDA of franchising and corporate segments
	TTM EBITDA of franchising segment	$
	TTM EBITDA of corporate segment	$
	Total	$
	Advance rate	200	%
	Availability created by EBITDA of
	franchising and corporate segments	$
Total Availability: A+B (not to exceed $30,000,000)		$
Less Outstandings:		$
Excess Availability		$

C-2

EXHIBIT D

FORM OF NOTICE OF BORROWING

To:          The PrivateBank and Trust Company (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”), THE PRIVATEBANK AND TRUST COMPANY (“PrivateBank”), 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 of the Credit Agreement, of a request hereby for a borrowing as follows:

(i)            The requested borrowing date for the proposed borrowing (which is a Business Day) is           ,           .

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

(iii)          The type of Revolving Loans comprising the proposed borrowing are [Base Rate] [LIBOR] [Fixed Rate] Loans.

(iv)          The duration of the Interest Period for each LIBOR Loan made as part of the proposed borrowing, if applicable, is             month(s) (which shall be 1, 2 or 3 months).

(v)           The duration of the Interest Period for each Fixed Rate Loan made as part of the proposed borrowing, if applicable, is           year(s) (which shall be 1, 2, 3 or 4 years).  An amortization schedule reflecting monthly payments over the life of such Fixed Rate Loan over the Interest Period therefor commencing on the same date of the next month following the borrowing is attached hereto.

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 eight (8) different LIBOR Loans are/will be outstanding; and (iv) no more than eight (8) different Fixed Rate Loans are/will be outstanding.

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 E

FORM OF NOTICE OF CONVERSION/CONTINUATION

To:          The PrivateBank and Trust Company (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”), THE PRIVATEBANK AND TRUST COMPANY (“PrivateBank”), 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 LIBOR Loan, having an Interest Period of [           ] month(s)][and, in the case of a Fixed Rate Loan, having an Interest Period of [               ] years(s)];

[(b)        on [date] continue $[          ] of the aggregate outstanding principal amount of the [LIBOR Loan, as a LIBOR Loan having an Interest Period of [            ]month(s)][Fixed Rate Loan, as a Fixed Rate Loan having an Interest Period of [       ] year(s)].

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, (i) no more than eight (8) different LIBOR Loans are/will be outstanding, and (ii) no more than eight (8) different Fixed Rate 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:

EX-10.3

Exhibit 10.3

SECURITY AGREEMENT

THIS SECURITY AGREEMENT dated as of July 13, 2010 is by and between WINMARK CORPORATION, a Minnesota corporation (the “Debtor”), and THE PRIVATEBANK AND TRUST COMPANY, an Illinois bank and trust company (in its capacity as Agent for the ratable benefit of the Lenders referred to below) (the “Secured Party”).

RECITALS:

A.The Debtor, the Secured Party and certain other persons are parties to that certain Credit Agreement of even date herewith (as it may be amended, modified, supplemented, restated or replaced from time to time, the “Credit Agreement”) pursuant to which the Lenders from time to time party thereto (collectively, the “Lenders”) are providing financial accommodations to the Debtor and the other Loan Parties (as defined in the Credit Agreement).

B.The Debtor will benefit from the financial accommodations provided by the Lenders to the Loan Parties, and the Debtor desires to grant to the Secured Party (for the ratable benefit of the Lenders) a security interest in all of the Debtor’s property, all as provided herein.

AGREEMENTS:

IN CONSIDERATION of one dollar and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

1.Grant of Security Interest and Collateral.  In order to secure payment and performance of each and every debt, liability and obligation of every type and description which Debtor and/or any other Loan Party may now or at any time hereafter owe to the Secured Party and/or any other Lender whether such debt, liability or obligation now exists or is hereafter created or incurred, whether it arises under or is evidenced by this Security Agreement, the Credit Agreement, or any other present or future instrument or agreement or by operation of law, and whether it is or may be direct or indirect, due or to become due, absolute or contingent, primary or secondary, liquidated or unliquidated, or sole, joint, several or joint and several (all such debts, liabilities and obligations and any amendments, extensions, renewals or replacements thereof are herein collectively referred to as the “Obligations”), Debtor hereby grants the Secured Party (for the ratable benefit of the Lenders) a security interest (the “Security Interest”) in all of Debtor’s property (the “Collateral”), including without limitation the following:

(a)Inventory and Goods:  All inventory of Debtor, whether now owned or hereafter acquired and wherever located and other tangible personal property held for sale or lease or furnished or to be furnished under contracts of service or consumed in Debtor’s business, and all goods of Debtor, whether now owned or hereafter acquired and wherever located, including without limitation all computer programs embedded in goods, and all other Inventory and Goods, as each such term may be defined in the Uniform Commercial Code as in effect in the state of Minnesota from time to time (the “UCC”), of the Debtor, whether now owned or hereafter acquired;

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(b)Equipment:  All equipment of Debtor, whether now owned or hereafter acquired and wherever located, including but not limited to all present and future equipment, machinery, tools, motor vehicles, trade fixtures, furniture, furnishings, office and recordkeeping equipment and all goods for use in Debtor’s business, and all other Equipment (as such term may be defined in the UCC) of the Debtor, whether now owned or hereafter acquired, together with all parts, equipment and attachments relating to any of the foregoing;

(c)Accounts, Contract Rights and Other Rights to Payment:  Each and every right of Debtor to the payment of money, whether such right to payment now exists or hereafter arises, whether such right to payment arises out of a sale, lease, license, assignment or other disposition of goods or other property by Debtor, out of a rendering of services by Debtor, out of a loan by Debtor, out of the overpayment of taxes or other liabilities of Debtor, or otherwise arises under any contract or agreement, whether such right to payment is or is not already earned by performance, and howsoever such right to payment may be evidenced, together with all other rights and interests (including all liens and security interests) which Debtor may at any time have by law or agreement against any account debtor or other obligor obligated to make any such payment or against any of the property of such account debtor or other obligor; all including but not limited to all present and future debt instruments, chattel papers, accounts, license fees, contract rights, loans and obligations receivable and tax refunds, and all other Accounts (as such term may be defined in the UCC) of the Debtor, whether now owned or hereafter acquired;

(d)Instruments:  All instruments, chattel paper, letters of credit or other documents of Debtor, whether now owned or hereafter acquired, including but not limited to promissory notes, drafts, bills of exchange and trade acceptances; all rights and interests of Debtor, whether now existing or hereafter created or arising, under leases, licenses or other contracts, and all other Instruments (as such term may be defined in the UCC) of the Debtor, whether now owned or hereafter acquired;

(e)Deposit Accounts and Investment Property:  All right, title and interest of Debtor in all deposit and investment accounts maintained with any bank, savings and loan association, broker, brokerage, or any other financial institution, together with all monies and other property deposited or held therein, including, without limitation, any checking account, savings account, escrow account, savings certificate and margin account, and all securities, whether certificated or uncertificated, security entitlements, securities accounts, commodity contracts, and commodity accounts, and all other Deposit Accounts and Investment Property (as each such term may be defined in the UCC) of the Debtor, whether now owned or hereafter acquired;

(f)General Intangibles:  All general intangibles of Debtor, whether now owned or hereafter acquired, including, but not limited to, applications for patents, patents, copyrights, trademarks, trade secrets, good will, tradenames, customer lists, permits and franchises, software, and the right to use Debtor’s name, and any and all membership interests, governance rights, and financial rights in each and every limited liability company, and all payment intangibles, and all other General Intangibles (as such

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term may be defined in the UCC) of the Debtor, whether now owned or hereafter acquired;

(g)Chattel Paper:  All Chattel Paper (as such term may be defined in the UCC) of the Debtor, whether tangible or electronic, and whether now owned or hereafter acquired; and

(h)Documents, Embedded Software, Etc.:  All of Debtor’s rights in promissory notes, documents, embedded software, letter of credit rights and supporting obligations (and security interests and liens securing them) (as any such term may be defined in the UCC) whether now owned or hereafter acquired;

together with all substitutions and replacements for and products of any of the foregoing property and proceeds of any and all of the foregoing property and, in the case of all tangible Collateral, together with (i) all accessories, attachments, parts, equipment, accessions, repairs and embedded software, now or hereafter attached or affixed to or used in connection with any such goods, (ii) all warehouse receipts, bills of lading and other documents of title now or hereafter covering such goods, and (iii) all books and records of Debtor.

2.Representations, Warranties and Agreements.  Debtor represents, warrants and agrees that:

(a)Debtor is a corporation duly organized, validly existing and in good standing under the laws of the state of Minnesota.  This Security Agreement has been duly and validly authorized by all necessary corporate action.  Debtor has the requisite corporate power and authority to execute this Security Agreement, to perform Debtor’s obligations hereunder and to subject the Collateral to the Security Interest.  Debtor’s organizational charter number is 5Z-841.

(b)The Collateral will be used primarily for business purposes.

(c)Debtor’s chief place of business is located at the address on Exhibit A attached hereto.  Debtor’s records concerning the Collateral are kept at such address.  The Collateral is located at the addresses set forth on Exhibit A attached hereto.  Debtor will give at least 30 days’ advance written notice to Secured Party of any change in Debtor’s name or jurisdiction of organization or chief place of business and any change in or addition of any Collateral location or any change in the location of Debtor’s records concerning the Collateral.

(d)Debtor has (or will have at the time Debtor acquires rights in Collateral hereafter arising) and will maintain absolute title to each item of Collateral free and clear of all security interests, liens and encumbrances, except the Security Interest (and the Liens permitted by the Credit Agreement), and will defend the Collateral against all claims or demands of all persons other than Secured Party (and the holders of Liens permitted by the Credit Agreement).

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(e)Except as otherwise provided in the Credit Agreement, Debtor will not sell or otherwise transfer or dispose of the Collateral or any interest therein.

(f)Debtor will not permit any tangible Collateral to be located in any state (and, if a county filing is required, in any county) in which a financing statement covering such Collateral is required to be, but has not in fact been, filed.

(g)All rights to payment and all instruments, documents, chattel papers and other agreements constituting or evidencing Collateral are (or will be when arising or issued) the valid, genuine and legally enforceable obligation, subject to no defense, set-off or counterclaim (other than those arising in the ordinary course of business) of each account debtor or other obligor named therein or in Debtor’s records pertaining thereto as being obligated to pay such obligation.  Debtor will not agree to any modification, amendment or cancellation of any such obligation without Secured Party’s prior written consent except discounts provided by Debtor in the ordinary course of business, and will not subordinate any such right to payment to claims of other creditors of such account debtor or other obligor.

(h)Debtor will keep all tangible Collateral in good repair, working order and condition, normal depreciation excepted, and will, from time to time, replace any worn, broken or defective parts thereof.

(i)Except as otherwise provided in the Credit Agreement, Debtor will promptly pay all taxes and other governmental charges levied or assessed upon or against any Collateral or upon or against the creation, perfection or continuance of the Security Interest.

(j)Debtor will promptly notify Secured Party of any material loss of or damage to any Collateral or of any adverse change in the prospect of payment of any material sums due on or under any instrument, chattel paper, account or contract right constituting Collateral.

(k)Debtor will if Secured Party at any time so requests (whether the request is made before or after the occurrence of an Event of Default), promptly deliver to Secured Party any instrument, document or chattel paper constituting Collateral, duly endorsed or assigned by Debtor to Secured Party.

(l)Debtor will at all times keep all tangible Collateral insured against risks of fire (including so-called extended coverage), theft, and such other risks and in such amounts as Secured Party may reasonably request, with any loss payable to Secured Party to the extent of its interest.

(m)Debtor hereby authorizes the filing of such financing statements as Secured Party may deem necessary or useful to be filed in order to perfect the Security Interest and, if any Collateral is covered by a certificate of title, Debtor will from time to time execute such documents as may be required to have the Security Interest properly

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noted on a certificate of title.  In addition, Debtor authorizes Secured Party to file from time to time such financing statements against the Collateral described as “all personal property” or “all assets” or the like as Secured Party deems necessary or useful to perfect the Security Interest.

(n)Debtor will pay when due or reimburse Secured Party on demand for all costs of collection of any of the Obligations and all other out-of-pocket expenses (including in each case all reasonable attorneys’ fees) incurred by Secured Party in connection with the creation, perfection, satisfaction or enforcement of the Security Interest or the execution or creation, continuance or enforcement of this Security Agreement or any or all of the Obligations.

(o)Debtor will take all such actions as Secured Party may reasonably request to permit the Secured Party to establish, perfect and protect the Security Interest in all jurisdictions Secured Party deems necessary.  Without in any way limiting the generality of the foregoing, Debtor will execute, deliver or endorse any and all instruments, documents, assignments, security agreements and other agreements and writings which Secured Party may at any time reasonably request in order to secure, protect, perfect or enforce the Security Interest and Secured Party’s rights under this Security Agreement.

(p)Debtor will not use or keep any Collateral, or permit it to be used or kept, for any unlawful purpose or in violation of any federal, state or local law, statute or ordinance.

If Debtor at any time fails to perform or observe any of the foregoing agreements, immediately upon the occurrence of such failure, without notice or lapse of time, Secured Party may (but need not) perform or observe such agreement on behalf and in the name, place and stead of Debtor (or, at Secured Party’s option, in Secured Party’s own name) and may (but need not) take any and all other actions which Secured Party may reasonably deem necessary to cure or correct such failure (including, without limitation, the payment of taxes, the satisfaction of security interests, liens, or encumbrances, the performance of obligations under contracts or agreements with account debtors or other obligors, the procurement and maintenance of insurance, the execution of financing statements, the endorsement of instruments, and the procurement of repairs, transportation or insurance); and, except to the extent that the effect of such payment would be to render any loan or forbearance of money usurious or otherwise illegal under any applicable law, Debtor shall thereupon pay Secured Party on demand the amount of all moneys expended and all costs and expenses (including reasonable attorneys’ fees) incurred by Secured Party in connection with or as a result of Secured Party’s performing or observing such agreements or taking such actions, together with interest thereon from the date expended or incurred by Secured Party at the highest rate then applicable to any of the Obligations.  To facilitate the performance or observance by Secured Party of such agreements of Debtor, Debtor hereby irrevocably appoints (which appointment is coupled with an interest) Secured Party, or its delegate, as the attorney-in-fact of Debtor with the right (but not the duty) from time to time to create, prepare, complete, execute, deliver, endorse or file, in the name and on behalf of Debtor, any and all instruments, documents, financing statements, applications for insurance and other agreements

5

and writings required to be obtained, executed, delivered or endorsed by Debtor under this Section 2.

3.Lock Box; Collateral Account.  If Secured Party so requests at any time after the occurrence of an Event of Default (as defined in Section 7 of this Security Agreement), Debtor will direct each of its account debtors to make payments due under the relevant account or chattel paper directly to a special lock box to be under the control of Secured Party (the “Lock Box”).  Debtor hereby authorizes and directs Secured Party to deposit into a special collateral account to be established and maintained with Secured Party (the “Collateral Account”) all checks, drafts, and cash payments received in the Lock Box.  All deposits in the Collateral Account shall constitute proceeds of Collateral and shall not constitute payment of any Obligation.  At its option, Secured Party shall, at any time, apply finally collected funds on deposit in the Collateral Account to the payment of the Obligations in such order of application as Secured Party may determine, or permit Debtor to withdraw all or any part of the balance.  If a Lock Box is so established, Debtor agrees that it will promptly deliver to Secured Party, for deposit into the Lock Box, all payments on accounts and chattel paper received by it.  All such payments shall be delivered to Secured Party in the form received (except for Debtor’s endorsement where necessary).  Until so deposited, all such payments on accounts and chattel paper received by Debtor shall be held in trust by Debtor for and as the property of Secured Party and shall not be commingled with any funds or property of Debtor.

4.Account Verification and Collection Rights of Secured Party.  At any time after the occurrence of any Event of Default or Unmatured Event of Default (as defined in the Credit Agreement), Secured Party shall have the right to verify any accounts in the name of Debtor or in Secured Party’s own name; and Debtor, whenever requested, shall furnish Secured Party with duplicate statements of the accounts, which statements may be mailed or delivered by Secured Party for that purpose.  Whether or not Secured Party exercises its rights under Section 3 of this Security Agreement, Secured Party may at any time (whether before or after the occurrence of an Event of Default) notify any account debtor or any other person obligated to pay any amount due, that such chattel paper, account or other right to payment has been assigned or transferred to Secured Party for security and shall be paid directly to Secured Party.  If Secured Party so requests at any time (whether before or after the occurrence of an Event of Default), Debtor will so notify such account debtors and other obligors in writing and will indicate on all invoices to such account debtors or other obligors that the amount due is payable directly to Secured Party.  At any time after Secured Party or Debtor gives such notice to an account debtor or other obligor, Secured Party may (but need not), in Secured Party’s own name or in Debtor’s name, demand, sue for, collect or receive any money or property at any time payable or receivable on account of, or securing, any such chattel paper, account or other right to payment, or grant any extension to, make any compromise or settlement with or otherwise agree to waive, modify, amend or change the obligations (including collateral obligations) of any such account debtor or other obligor.

5.Assignment of Insurance.  Debtor hereby assigns to Secured Party (for the ratable benefit of the Lenders), as additional security for the payment of the Obligations, any and all moneys (including but not limited to proceeds of insurance and refunds of unearned premiums) due or to become due under, and all other rights of Debtor under or with respect to,

6

any and all policies of insurance covering the Collateral, and Debtor hereby directs the issuer of any such policy to pay any such moneys directly to Secured Party.  Both before and after the occurrence of an Event of Default, Secured Party may (but need not), in Secured Party’s own name or in Debtor’s name, execute and deliver proofs of claim, receive all such moneys, endorse checks and other instruments representing payment of such moneys, and adjust, litigate, compromise or release any claim against the issuer of any such policy.  Notwithstanding the foregoing, Debtor shall be entitled to use any such insurance proceeds to repair or replace any Collateral so long as no Unmatured Event of Default or Event of Default then exists.

6.Right to Offset.  Nothing in this Security Agreement shall be deemed a waiver or prohibition of Secured Party’s right of banker’s lien, offset, or counterclaim, which right Debtor hereby grants to Secured Party.

7.Events of Default.  The occurrence of any Event of Default, as defined in Section 13.1 of the Credit Agreement, shall constitute an Event of Default hereunder.

8.Remedies Upon Event of Default.  Upon the occurrence of an Event of Default and at any time thereafter until such Event of Default is cured to the written satisfaction of Secured Party, Secured Party may exercise any one or more of the rights or remedies set forth in Section 13.2 of the Credit Agreement.  All rights and remedies of Secured Party shall be cumulative and may be exercised singularly or concurrently, at Secured Party’s option, and the exercise or enforcement of any one such right or remedy shall neither be a condition to nor bar the exercise or enforcement of any other.

9.Other Personal Property.  If at the time Secured Party takes possession of any tangible Collateral, any goods, papers or other properties of Debtor, not affixed to or constituting a part of such Collateral, are located or to be found upon or within such Collateral, Debtor agrees to notify Secured Party in writing of that fact, describing the property so located or to be found, within 7 calendar days after the date on which Secured Party took possession. Unless and until Secured Party receives such notice from Debtor, Secured Party shall not be responsible or liable to Debtor for any action taken or omitted by or on behalf of Secured Party with respect to such property without actual knowledge of the existence of any such property or without actual knowledge of the fact that it was located or to be found upon such Collateral.

10.Amendment; Waivers.  This Security Agreement can be waived, modified, amended, terminated or discharged, and the Security Interest can be released, only explicitly in a writing signed by Secured Party and Debtor.  A waiver shall be effective only in the specific instance and for the specific purpose given.  Mere delay or failure to act shall not preclude the exercise or enforcement of any of Secured Party’s rights or remedies.

11.Notices.  All notices to be given to Debtor shall be deemed sufficiently given if given in the manner specified in Section 16.3 of the Credit Agreement.

12.Miscellaneous.  Secured Party’s duty of care with respect to Collateral in its possession (as imposed by law) shall be deemed fulfilled if Secured Party exercises reasonable care in physically safekeeping such Collateral or, in the case of Collateral in the custody or

7

possession of a bailee or other third person, exercises reasonable care in the selection of the bailee or other third person, and Secured Party need not otherwise preserve, protect, insure or care for any Collateral.  Secured Party shall not be obligated to preserve any rights Debtor may have against prior parties, to realize on the Collateral at all or in any particular manner or order, or to apply any cash proceeds of Collateral in any particular order of application.  This Security Agreement shall be binding upon and inure to the benefit of Debtor and Secured Party and their respective representatives, successors and assigns and shall take effect when signed by Debtor and delivered to Secured Party, and Debtor waives notice of Secured Party’s acceptance hereof.  This Security Agreement shall be governed by the internal laws of the State of Minnesota, without giving effect to the conflicts of laws principles thereof.

13.Consent to Jurisdiction.  AT THE OPTION OF THE SECURED PARTY, THIS SECURITY AGREEMENT MAY BE ENFORCED IN ANY FEDERAL COURT OR MINNESOTA STATE COURT SITTING IN HENNEPIN COUNTY, MINNESOTA; AND THE DEBTOR CONSENTS TO THE JURISDICTION AND VENUE OF ANY SUCH COURT AND WAIVES ANY ARGUMENT THAT VENUE IN SUCH FORUMS IS NOT CONVENIENT.  IN THE EVENT THE DEBTOR COMMENCES ANY ACTION IN ANOTHER JURISDICTION OR VENUE UNDER ANY TORT OR CONTRACT THEORY ARISING DIRECTLY OR INDIRECTLY FROM THE RELATIONSHIP CREATED BY THIS SECURITY AGREEMENT, THE SECURED PARTY AT ITS OPTION SHALL BE ENTITLED TO HAVE THE CASE TRANSFERRED TO ONE OF THE JURISDICTIONS AND VENUES ABOVE-DESCRIBED, OR IF SUCH TRANSFER CANNOT BE ACCOMPLISHED UNDER APPLICABLE LAW, TO HAVE SUCH CASE DISMISSED WITHOUT PREJUDICE.

14.Waiver of Jury Trial.  EACH OF THE DEBTOR AND THE SECURED PARTY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS SECURITY AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

(The signature page follows.)

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THE PARTIES have executed this Security Agreement as of the day and year first above written.

Secured Party (as Agent
for the ratable benefit of the Lenders):	THE PRIVATEBANK AND TRUST COMPANY
	By:	/s/ Peter Pricco
		Its: Managing Director
Debtor:	WINMARK CORPORATION
	By:	/s/ Brett D. Heffes
		Its: President, Finance and Administration

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Exhibit A

Location of Collateral

Chief Place of
Business and
Collateral Location:	605 Highway 169 North, Suite 400
	Minneapolis, MN 55441
Collateral Location:	1942 Broadway Suite # 318 & 317
	Boulder, CO 80302
Collateral Location:	2 Ravinia Drive, Suite # 500
	Atlanta, GA 30346
Collateral Location:	1309 State Street, Suite A
	Santa Barbara, CA 93101
Collateral Location:	233 East Carillo Street, Suite C
	Santa Barbara, CA 93101

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SECURITY AGREEMENT

THIS SECURITY AGREEMENT dated as of July 13, 2010 is by and between WIRTH BUSINESS CREDIT, INC., a Minnesota corporation (the “Debtor”), and THE PRIVATEBANK AND TRUST COMPANY, an Illinois bank and trust company (in its capacity as Agent for the ratable benefit of the Lenders referred to below) (the “Secured Party”).

RECITALS:

A.The Debtor, the Secured Party and certain other persons are parties to that certain Credit Agreement of even date herewith (as it may be amended, modified, supplemented, restated or replaced from time to time, the “Credit Agreement”) pursuant to which the Lenders from time to time party thereto (collectively, the “Lenders”) are providing financial accommodations to the Debtor and the other Loan Parties (as defined in the Credit Agreement).

B.The Debtor will benefit from the financial accommodations provided by the Lenders to the Loan Parties, and the Debtor desires to grant to the Secured Party (for the ratable benefit of the Lenders) a security interest in all of the Debtor’s property, all as provided herein.

AGREEMENTS:

IN CONSIDERATION of one dollar and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

1.Grant of Security Interest and Collateral.  In order to secure payment and performance of each and every debt, liability and obligation of every type and description which Debtor and/or any other Loan Party may now or at any time hereafter owe to the Secured Party and/or any other Lender whether such debt, liability or obligation now exists or is hereafter created or incurred, whether it arises under or is evidenced by this Security Agreement, the Credit Agreement, or any other present or future instrument or agreement or by operation of law, and whether it is or may be direct or indirect, due or to become due, absolute or contingent, primary or secondary, liquidated or unliquidated, or sole, joint, several or joint and several (all such debts, liabilities and obligations and any amendments, extensions, renewals or replacements thereof are herein collectively referred to as the “Obligations”), Debtor hereby grants the Secured Party (for the ratable benefit of the Lenders) a security interest (the “Security Interest”) in all of Debtor’s property (the “Collateral”), including without limitation the following:

(a)Inventory and Goods:  All inventory of Debtor, whether now owned or hereafter acquired and wherever located and other tangible personal property held for sale or lease or furnished or to be furnished under contracts of service or consumed in Debtor’s business, and all goods of Debtor, whether now owned or hereafter acquired and wherever located, including without limitation all computer programs embedded in goods, and all other Inventory and Goods, as each such term may be defined in the Uniform Commercial Code as in effect in the state of Minnesota from time to time (the “UCC”), of the Debtor, whether now owned or hereafter acquired;

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(b)Equipment:  All equipment of Debtor, whether now owned or hereafter acquired and wherever located, including but not limited to all present and future equipment, machinery, tools, motor vehicles, trade fixtures, furniture, furnishings, office and recordkeeping equipment and all goods for use in Debtor’s business, and all other Equipment (as such term may be defined in the UCC) of the Debtor, whether now owned or hereafter acquired, together with all parts, equipment and attachments relating to any of the foregoing;

(c)Accounts, Contract Rights and Other Rights to Payment:  Each and every right of Debtor to the payment of money, whether such right to payment now exists or hereafter arises, whether such right to payment arises out of a sale, lease, license, assignment or other disposition of goods or other property by Debtor, out of a rendering of services by Debtor, out of a loan by Debtor, out of the overpayment of taxes or other liabilities of Debtor, or otherwise arises under any contract or agreement, whether such right to payment is or is not already earned by performance, and howsoever such right to payment may be evidenced, together with all other rights and interests (including all liens and security interests) which Debtor may at any time have by law or agreement against any account debtor or other obligor obligated to make any such payment or against any of the property of such account debtor or other obligor; all including but not limited to all present and future debt instruments, chattel papers, accounts, license fees, contract rights, loans and obligations receivable and tax refunds, and all other Accounts (as such term may be defined in the UCC) of the Debtor, whether now owned or hereafter acquired;

(d)Instruments:  All instruments, chattel paper, letters of credit or other documents of Debtor, whether now owned or hereafter acquired, including but not limited to promissory notes, drafts, bills of exchange and trade acceptances; all rights and interests of Debtor, whether now existing or hereafter created or arising, under leases, licenses or other contracts, and all other Instruments (as such term may be defined in the UCC) of the Debtor, whether now owned or hereafter acquired;

(e)Deposit Accounts and Investment Property:  All right, title and interest of Debtor in all deposit and investment accounts maintained with any bank, savings and loan association, broker, brokerage, or any other financial institution, together with all monies and other property deposited or held therein, including, without limitation, any checking account, savings account, escrow account, savings certificate and margin account, and all securities, whether certificated or uncertificated, security entitlements, securities accounts, commodity contracts, and commodity accounts, and all other Deposit Accounts and Investment Property (as each such term may be defined in the UCC) of the Debtor, whether now owned or hereafter acquired;

(f)General Intangibles:  All general intangibles of Debtor, whether now owned or hereafter acquired, including, but not limited to, applications for patents, patents, copyrights, trademarks, trade secrets, good will, tradenames, customer lists, permits and franchises, software, and the right to use Debtor’s name, and any and all membership interests, governance rights, and financial rights in each and every limited liability company, and all payment intangibles, and all other General Intangibles (as such

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term may be defined in the UCC) of the Debtor, whether now owned or hereafter acquired;

(g)Chattel Paper:  All Chattel Paper (as such term may be defined in the UCC) of the Debtor, whether tangible or electronic, and whether now owned or hereafter acquired; and

(h)Documents, Embedded Software, Etc.:  All of Debtor’s rights in promissory notes, documents, embedded software, letter of credit rights and supporting obligations (and security interests and liens securing them) (as any such term may be defined in the UCC) whether now owned or hereafter acquired;

together with all substitutions and replacements for and products of any of the foregoing property and proceeds of any and all of the foregoing property and, in the case of all tangible Collateral, together with (i) all accessories, attachments, parts, equipment, accessions, repairs and embedded software, now or hereafter attached or affixed to or used in connection with any such goods, (ii) all warehouse receipts, bills of lading and other documents of title now or hereafter covering such goods, and (iii) all books and records of Debtor.

2.Representations, Warranties and Agreements.  Debtor represents, warrants and agrees that:

(a)Debtor is a corporation duly organized, validly existing and in good standing under the laws of the state of Minnesota.  This Security Agreement has been duly and validly authorized by all necessary corporate action.  Debtor has the requisite corporate power and authority to execute this Security Agreement, to perform Debtor’s obligations hereunder and to subject the Collateral to the Security Interest.  Debtor’s organizational charter number is 854020-5.

(b)The Collateral will be used primarily for business purposes.

(c)Debtor’s chief place of business is located at the address on Exhibit A attached hereto.  Debtor’s records concerning the Collateral are kept at such address.  The Collateral is located at the addresses set forth on Exhibit A attached hereto.  Debtor will give at least 30 days’ advance written notice to Secured Party of any change in Debtor’s name or jurisdiction of organization or chief place of business and any change in or addition of any Collateral location or any change in the location of Debtor’s records concerning the Collateral.

(d)Debtor has (or will have at the time Debtor acquires rights in Collateral hereafter arising) and will maintain absolute title to each item of Collateral free and clear of all security interests, liens and encumbrances, except the Security Interest (and the Liens permitted by the Credit Agreement), and will defend the Collateral against all claims or demands of all persons other than Secured Party (and the holders of Liens permitted by the Credit Agreement).

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(e)Except as otherwise provided in the Credit Agreement, Debtor will not sell or otherwise transfer or dispose of the Collateral or any interest therein.

(f)Debtor will not permit any tangible Collateral to be located in any state (and, if a county filing is required, in any county) in which a financing statement covering such Collateral is required to be, but has not in fact been, filed.

(g)All rights to payment and all instruments, documents, chattel papers and other agreements constituting or evidencing Collateral are (or will be when arising or issued) the valid, genuine and legally enforceable obligation, subject to no defense, set-off or counterclaim (other than those arising in the ordinary course of business) of each account debtor or other obligor named therein or in Debtor’s records pertaining thereto as being obligated to pay such obligation.  Debtor will not agree to any modification, amendment or cancellation of any such obligation without Secured Party’s prior written consent except discounts provided by Debtor in the ordinary course of business, and will not subordinate any such right to payment to claims of other creditors of such account debtor or other obligor.

(h)Debtor will keep all tangible Collateral in good repair, working order and condition, normal depreciation excepted, and will, from time to time, replace any worn, broken or defective parts thereof.

(i)Except as otherwise provided in the Credit Agreement, Debtor will promptly pay all taxes and other governmental charges levied or assessed upon or against any Collateral or upon or against the creation, perfection or continuance of the Security Interest.

(j)Debtor will promptly notify Secured Party of any material loss of or damage to any Collateral or of any adverse change in the prospect of payment of any material sums due on or under any instrument, chattel paper, account or contract right constituting Collateral.

(k)Debtor will if Secured Party at any time so requests (whether the request is made before or after the occurrence of an Event of Default), promptly deliver to Secured Party any instrument, document or chattel paper constituting Collateral, duly endorsed or assigned by Debtor to Secured Party.

(l)Debtor will at all times keep all tangible Collateral insured against risks of fire (including so-called extended coverage), theft, and such other risks and in such amounts as Secured Party may reasonably request, with any loss payable to Secured Party to the extent of its interest.

(m)Debtor hereby authorizes the filing of such financing statements as Secured Party may deem necessary or useful to be filed in order to perfect the Security Interest and, if any Collateral is covered by a certificate of title, Debtor will from time to time execute such documents as may be required to have the Security Interest properly

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noted on a certificate of title.  In addition, Debtor authorizes Secured Party to file from time to time such financing statements against the Collateral described as “all personal property” or “all assets” or the like as Secured Party deems necessary or useful to perfect the Security Interest.

(n)Debtor will pay when due or reimburse Secured Party on demand for all costs of collection of any of the Obligations and all other out-of-pocket expenses (including in each case all reasonable attorneys’ fees) incurred by Secured Party in connection with the creation, perfection, satisfaction or enforcement of the Security Interest or the execution or creation, continuance or enforcement of this Security Agreement or any or all of the Obligations.

(o)Debtor will take all such actions as Secured Party may reasonably request to permit the Secured Party to establish, perfect and protect the Security Interest in all jurisdictions Secured Party deems necessary.  Without in any way limiting the generality of the foregoing, Debtor will execute, deliver or endorse any and all instruments, documents, assignments, security agreements and other agreements and writings which Secured Party may at any time reasonably request in order to secure, protect, perfect or enforce the Security Interest and Secured Party’s rights under this Security Agreement.

(p)Debtor will not use or keep any Collateral, or permit it to be used or kept, for any unlawful purpose or in violation of any federal, state or local law, statute or ordinance.

If Debtor at any time fails to perform or observe any of the foregoing agreements, immediately upon the occurrence of such failure, without notice or lapse of time, Secured Party may (but need not) perform or observe such agreement on behalf and in the name, place and stead of Debtor (or, at Secured Party’s option, in Secured Party’s own name) and may (but need not) take any and all other actions which Secured Party may reasonably deem necessary to cure or correct such failure (including, without limitation, the payment of taxes, the satisfaction of security interests, liens, or encumbrances, the performance of obligations under contracts or agreements with account debtors or other obligors, the procurement and maintenance of insurance, the execution of financing statements, the endorsement of instruments, and the procurement of repairs, transportation or insurance); and, except to the extent that the effect of such payment would be to render any loan or forbearance of money usurious or otherwise illegal under any applicable law, Debtor shall thereupon pay Secured Party on demand the amount of all moneys expended and all costs and expenses (including reasonable attorneys’ fees) incurred by Secured Party in connection with or as a result of Secured Party’s performing or observing such agreements or taking such actions, together with interest thereon from the date expended or incurred by Secured Party at the highest rate then applicable to any of the Obligations.  To facilitate the performance or observance by Secured Party of such agreements of Debtor, Debtor hereby irrevocably appoints (which appointment is coupled with an interest) Secured Party, or its delegate, as the attorney-in-fact of Debtor with the right (but not the duty) from time to time to create, prepare, complete, execute, deliver, endorse or file, in the name and on behalf of Debtor, any and all instruments, documents, financing statements, applications for insurance and other agreements

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and writings required to be obtained, executed, delivered or endorsed by Debtor under this Section 2.

3.Lock Box; Collateral Account.  If Secured Party so requests at any time after the occurrence of an Event of Default (as defined in Section 7 of this Security Agreement), Debtor will direct each of its account debtors to make payments due under the relevant account or chattel paper directly to a special lock box to be under the control of Secured Party (the “Lock Box”).  Debtor hereby authorizes and directs Secured Party to deposit into a special collateral account to be established and maintained with Secured Party (the “Collateral Account”) all checks, drafts, and cash payments received in the Lock Box.  All deposits in the Collateral Account shall constitute proceeds of Collateral and shall not constitute payment of any Obligation.  At its option, Secured Party shall, at any time, apply finally collected funds on deposit in the Collateral Account to the payment of the Obligations in such order of application as Secured Party may determine, or permit Debtor to withdraw all or any part of the balance.  If a Lock Box is so established, Debtor agrees that it will promptly deliver to Secured Party, for deposit into the Lock Box, all payments on accounts and chattel paper received by it.  All such payments shall be delivered to Secured Party in the form received (except for Debtor’s endorsement where necessary).  Until so deposited, all such payments on accounts and chattel paper received by Debtor shall be held in trust by Debtor for and as the property of Secured Party and shall not be commingled with any funds or property of Debtor.

4.Account Verification and Collection Rights of Secured Party.  At any time after the occurrence of any Event of Default or Unmatured Event of Default (as defined in the Credit Agreement), Secured Party shall have the right to verify any accounts in the name of Debtor or in Secured Party’s own name; and Debtor, whenever requested, shall furnish Secured Party with duplicate statements of the accounts, which statements may be mailed or delivered by Secured Party for that purpose.  Whether or not Secured Party exercises its rights under Section 3 of this Security Agreement, Secured Party may at any time (whether before or after the occurrence of an Event of Default) notify any account debtor or any other person obligated to pay any amount due, that such chattel paper, account or other right to payment has been assigned or transferred to Secured Party for security and shall be paid directly to Secured Party.  If Secured Party so requests at any time (whether before or after the occurrence of an Event of Default), Debtor will so notify such account debtors and other obligors in writing and will indicate on all invoices to such account debtors or other obligors that the amount due is payable directly to Secured Party.  At any time after Secured Party or Debtor gives such notice to an account debtor or other obligor, Secured Party may (but need not), in Secured Party’s own name or in Debtor’s name, demand, sue for, collect or receive any money or property at any time payable or receivable on account of, or securing, any such chattel paper, account or other right to payment, or grant any extension to, make any compromise or settlement with or otherwise agree to waive, modify, amend or change the obligations (including collateral obligations) of any such account debtor or other obligor.

5.Assignment of Insurance.  Debtor hereby assigns to Secured Party (for the ratable benefit of the Lenders), as additional security for the payment of the Obligations, any and all moneys (including but not limited to proceeds of insurance and refunds of unearned premiums) due or to become due under, and all other rights of Debtor under or with respect to,

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any and all policies of insurance covering the Collateral, and Debtor hereby directs the issuer of any such policy to pay any such moneys directly to Secured Party.  Both before and after the occurrence of an Event of Default, Secured Party may (but need not), in Secured Party’s own name or in Debtor’s name, execute and deliver proofs of claim, receive all such moneys, endorse checks and other instruments representing payment of such moneys, and adjust, litigate, compromise or release any claim against the issuer of any such policy.  Notwithstanding the foregoing, Debtor shall be entitled to use any such insurance proceeds to repair or replace any Collateral so long as no Unmatured Event of Default or Event of Default then exists.

6.Right to Offset.  Nothing in this Security Agreement shall be deemed a waiver or prohibition of Secured Party’s right of banker’s lien, offset, or counterclaim, which right Debtor hereby grants to Secured Party.

7.Events of Default.  The occurrence of any Event of Default, as defined in Section 13.1 of the Credit Agreement, shall constitute an Event of Default hereunder.

8.Remedies Upon Event of Default.  Upon the occurrence of an Event of Default and at any time thereafter until such Event of Default is cured to the written satisfaction of Secured Party, Secured Party may exercise any one or more of the rights or remedies set forth in Section 13.2 of the Credit Agreement.  All rights and remedies of Secured Party shall be cumulative and may be exercised singularly or concurrently, at Secured Party’s option, and the exercise or enforcement of any one such right or remedy shall neither be a condition to nor bar the exercise or enforcement of any other.

9.Other Personal Property.  If at the time Secured Party takes possession of any tangible Collateral, any goods, papers or other properties of Debtor, not affixed to or constituting a part of such Collateral, are located or to be found upon or within such Collateral, Debtor agrees to notify Secured Party in writing of that fact, describing the property so located or to be found, within 7 calendar days after the date on which Secured Party took possession. Unless and until Secured Party receives such notice from Debtor, Secured Party shall not be responsible or liable to Debtor for any action taken or omitted by or on behalf of Secured Party with respect to such property without actual knowledge of the existence of any such property or without actual knowledge of the fact that it was located or to be found upon such Collateral.

10.Amendment; Waivers.  This Security Agreement can be waived, modified, amended, terminated or discharged, and the Security Interest can be released, only explicitly in a writing signed by Secured Party and Debtor.  A waiver shall be effective only in the specific instance and for the specific purpose given.  Mere delay or failure to act shall not preclude the exercise or enforcement of any of Secured Party’s rights or remedies.

11.Notices.  All notices to be given to Debtor shall be deemed sufficiently given if given in the manner specified in Section 16.3 of the Credit Agreement.

12.Miscellaneous.  Secured Party’s duty of care with respect to Collateral in its possession (as imposed by law) shall be deemed fulfilled if Secured Party exercises reasonable care in physically safekeeping such Collateral or, in the case of Collateral in the custody or

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possession of a bailee or other third person, exercises reasonable care in the selection of the bailee or other third person, and Secured Party need not otherwise preserve, protect, insure or care for any Collateral.  Secured Party shall not be obligated to preserve any rights Debtor may have against prior parties, to realize on the Collateral at all or in any particular manner or order, or to apply any cash proceeds of Collateral in any particular order of application.  This Security Agreement shall be binding upon and inure to the benefit of Debtor and Secured Party and their respective representatives, successors and assigns and shall take effect when signed by Debtor and delivered to Secured Party, and Debtor waives notice of Secured Party’s acceptance hereof.  This Security Agreement shall be governed by the internal laws of the State of Minnesota, without giving effect to the conflicts of laws principles thereof.

13.Consent to Jurisdiction.  AT THE OPTION OF THE SECURED PARTY, THIS SECURITY AGREEMENT MAY BE ENFORCED IN ANY FEDERAL COURT OR MINNESOTA STATE COURT SITTING IN HENNEPIN COUNTY, MINNESOTA; AND THE DEBTOR CONSENTS TO THE JURISDICTION AND VENUE OF ANY SUCH COURT AND WAIVES ANY ARGUMENT THAT VENUE IN SUCH FORUMS IS NOT CONVENIENT.  IN THE EVENT THE DEBTOR COMMENCES ANY ACTION IN ANOTHER JURISDICTION OR VENUE UNDER ANY TORT OR CONTRACT THEORY ARISING DIRECTLY OR INDIRECTLY FROM THE RELATIONSHIP CREATED BY THIS SECURITY AGREEMENT, THE SECURED PARTY AT ITS OPTION SHALL BE ENTITLED TO HAVE THE CASE TRANSFERRED TO ONE OF THE JURISDICTIONS AND VENUES ABOVE-DESCRIBED, OR IF SUCH TRANSFER CANNOT BE ACCOMPLISHED UNDER APPLICABLE LAW, TO HAVE SUCH CASE DISMISSED WITHOUT PREJUDICE.

14.Waiver of Jury Trial.  EACH OF THE DEBTOR AND THE SECURED PARTY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS SECURITY AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

(The signature page follows.)

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THE PARTIES have executed this Security Agreement as of the day and year first above written.

Secured Party (as Agent
for the ratable benefit of the Lenders):	THE PRIVATEBANK AND TRUST COMPANY
	By:	/s/ Peter Pricco
		Its: Managing Director
Debtor:	WIRTH BUSINESS CREDIT, INC.
	By:	/s/ Brett D. Heffes
		Its: Treasurer

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Exhibit A

Location of Collateral

Chief Place of
Business and
Collateral Location:	605 Highway 169 North, Suite 400
	Minneapolis, MN 55441
Collateral Location:	1942 Broadway Suite # 318 & 317
	Boulder, CO 80302
Collateral Location:	2 Ravinia Drive, Suite # 500
	Atlanta, GA 30346
Collateral Location:	1309 State Street, Suite A
	Santa Barbara, CA 93101
Collateral Location:	233 East Carillo Street, Suite C
	Santa Barbara, CA 93101

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SECURITY AGREEMENT

THIS SECURITY AGREEMENT dated as of July 13, 2010 is by and between WINMARK CAPITAL CORPORATION, a Minnesota corporation (the “Debtor”), and THE PRIVATEBANK AND TRUST COMPANY, an Illinois bank and trust company (in its capacity as Agent for the ratable benefit of the Lenders referred to below) (the “Secured Party”).

RECITALS:

A.The Debtor, the Secured Party and certain other persons are parties to that certain Credit Agreement of even date herewith (as it may be amended, modified, supplemented, restated or replaced from time to time, the “Credit Agreement”) pursuant to which the Lenders from time to time party thereto (collectively, the “Lenders”) are providing financial accommodations to the Debtor and the other Loan Parties (as defined in the Credit Agreement).

B.The Debtor will benefit from the financial accommodations provided by the Lenders to the Loan Parties, and the Debtor desires to grant to the Secured Party (for the ratable benefit of the Lenders) a security interest in all of the Debtor’s property, all as provided herein.

AGREEMENTS:

IN CONSIDERATION of one dollar and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

1.Grant of Security Interest and Collateral.  In order to secure payment and performance of each and every debt, liability and obligation of every type and description which Debtor and/or any other Loan Party may now or at any time hereafter owe to the Secured Party and/or any other Lender whether such debt, liability or obligation now exists or is hereafter created or incurred, whether it arises under or is evidenced by this Security Agreement, the Credit Agreement, or any other present or future instrument or agreement or by operation of law, and whether it is or may be direct or indirect, due or to become due, absolute or contingent, primary or secondary, liquidated or unliquidated, or sole, joint, several or joint and several (all such debts, liabilities and obligations and any amendments, extensions, renewals or replacements thereof are herein collectively referred to as the “Obligations”), Debtor hereby grants the Secured Party (for the ratable benefit of the Lenders) a security interest (the “Security Interest”) in all of Debtor’s property (the “Collateral”), including without limitation the following:

(a)Inventory and Goods:  All inventory of Debtor, whether now owned or hereafter acquired and wherever located and other tangible personal property held for sale or lease or furnished or to be furnished under contracts of service or consumed in Debtor’s business, and all goods of Debtor, whether now owned or hereafter acquired and wherever located, including without limitation all computer programs embedded in goods, and all other Inventory and Goods, as each such term may be defined in the Uniform Commercial Code as in effect in the state of Minnesota from time to time (the “UCC”), of the Debtor, whether now owned or hereafter acquired;

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(b)Equipment:  All equipment of Debtor, whether now owned or hereafter acquired and wherever located, including but not limited to all present and future equipment, machinery, tools, motor vehicles, trade fixtures, furniture, furnishings, office and recordkeeping equipment and all goods for use in Debtor’s business, and all other Equipment (as such term may be defined in the UCC) of the Debtor, whether now owned or hereafter acquired, together with all parts, equipment and attachments relating to any of the foregoing;

(c)Accounts, Contract Rights and Other Rights to Payment:  Each and every right of Debtor to the payment of money, whether such right to payment now exists or hereafter arises, whether such right to payment arises out of a sale, lease, license, assignment or other disposition of goods or other property by Debtor, out of a rendering of services by Debtor, out of a loan by Debtor, out of the overpayment of taxes or other liabilities of Debtor, or otherwise arises under any contract or agreement, whether such right to payment is or is not already earned by performance, and howsoever such right to payment may be evidenced, together with all other rights and interests (including all liens and security interests) which Debtor may at any time have by law or agreement against any account debtor or other obligor obligated to make any such payment or against any of the property of such account debtor or other obligor; all including but not limited to all present and future debt instruments, chattel papers, accounts, license fees, contract rights, loans and obligations receivable and tax refunds, and all other Accounts (as such term may be defined in the UCC) of the Debtor, whether now owned or hereafter acquired;

(d)Instruments:  All instruments, chattel paper, letters of credit or other documents of Debtor, whether now owned or hereafter acquired, including but not limited to promissory notes, drafts, bills of exchange and trade acceptances; all rights and interests of Debtor, whether now existing or hereafter created or arising, under leases, licenses or other contracts, and all other Instruments (as such term may be defined in the UCC) of the Debtor, whether now owned or hereafter acquired;

(e)Deposit Accounts and Investment Property:  All right, title and interest of Debtor in all deposit and investment accounts maintained with any bank, savings and loan association, broker, brokerage, or any other financial institution, together with all monies and other property deposited or held therein, including, without limitation, any checking account, savings account, escrow account, savings certificate and margin account, and all securities, whether certificated or uncertificated, security entitlements, securities accounts, commodity contracts, and commodity accounts, and all other Deposit Accounts and Investment Property (as each such term may be defined in the UCC) of the Debtor, whether now owned or hereafter acquired;

(f)General Intangibles:  All general intangibles of Debtor, whether now owned or hereafter acquired, including, but not limited to, applications for patents, patents, copyrights, trademarks, trade secrets, good will, tradenames, customer lists, permits and franchises, software, and the right to use Debtor’s name, and any and all membership interests, governance rights, and financial rights in each and every limited liability company, and all payment intangibles, and all other General Intangibles (as such

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term may be defined in the UCC) of the Debtor, whether now owned or hereafter acquired;

(g)Chattel Paper:  All Chattel Paper (as such term may be defined in the UCC) of the Debtor, whether tangible or electronic, and whether now owned or hereafter acquired; and

(h)Documents, Embedded Software, Etc.:  All of Debtor’s rights in promissory notes, documents, embedded software, letter of credit rights and supporting obligations (and security interests and liens securing them) (as any such term may be defined in the UCC) whether now owned or hereafter acquired;

together with all substitutions and replacements for and products of any of the foregoing property and proceeds of any and all of the foregoing property and, in the case of all tangible Collateral, together with (i) all accessories, attachments, parts, equipment, accessions, repairs and embedded software, now or hereafter attached or affixed to or used in connection with any such goods, (ii) all warehouse receipts, bills of lading and other documents of title now or hereafter covering such goods, and (iii) all books and records of Debtor.

2.Representations, Warranties and Agreements.  Debtor represents, warrants and agrees that:

(a)Debtor is a corporation duly organized, validly existing and in good standing under the laws of the state of Minnesota.  This Security Agreement has been duly and validly authorized by all necessary corporate action.  Debtor has the requisite corporate power and authority to execute this Security Agreement, to perform Debtor’s obligations hereunder and to subject the Collateral to the Security Interest.  Debtor’s organizational charter number is 854020-6.

(b)The Collateral will be used primarily for business purposes.

(c)Debtor’s chief place of business is located at the address on Exhibit A attached hereto.  Debtor’s records concerning the Collateral are kept at such address.  The Collateral is located at the addresses set forth on Exhibit A attached hereto.  Debtor will give at least 30 days’ advance written notice to Secured Party of any change in Debtor’s name or jurisdiction of organization or chief place of business and any change in or addition of any Collateral location or any change in the location of Debtor’s records concerning the Collateral.

(d)Debtor has (or will have at the time Debtor acquires rights in Collateral hereafter arising) and will maintain absolute title to each item of Collateral free and clear of all security interests, liens and encumbrances, except the Security Interest (and the Liens permitted by the Credit Agreement), and will defend the Collateral against all claims or demands of all persons other than Secured Party (and the holders of Liens permitted by the Credit Agreement).

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(e)Except as otherwise provided in the Credit Agreement, Debtor will not sell or otherwise transfer or dispose of the Collateral or any interest therein.

(f)Debtor will not permit any tangible Collateral to be located in any state (and, if a county filing is required, in any county) in which a financing statement covering such Collateral is required to be, but has not in fact been, filed.

(g)All rights to payment and all instruments, documents, chattel papers and other agreements constituting or evidencing Collateral are (or will be when arising or issued) the valid, genuine and legally enforceable obligation, subject to no defense, set-off or counterclaim (other than those arising in the ordinary course of business) of each account debtor or other obligor named therein or in Debtor’s records pertaining thereto as being obligated to pay such obligation.  Debtor will not agree to any modification, amendment or cancellation of any such obligation without Secured Party’s prior written consent except discounts provided by Debtor in the ordinary course of business, and will not subordinate any such right to payment to claims of other creditors of such account debtor or other obligor.

(h)Debtor will keep all tangible Collateral in good repair, working order and condition, normal depreciation excepted, and will, from time to time, replace any worn, broken or defective parts thereof.

(i)Except as otherwise provided in the Credit Agreement, Debtor will promptly pay all taxes and other governmental charges levied or assessed upon or against any Collateral or upon or against the creation, perfection or continuance of the Security Interest.

(j)Debtor will promptly notify Secured Party of any material loss of or damage to any Collateral or of any adverse change in the prospect of payment of any material sums due on or under any instrument, chattel paper, account or contract right constituting Collateral.

(k)Debtor will if Secured Party at any time so requests (whether the request is made before or after the occurrence of an Event of Default), promptly deliver to Secured Party any instrument, document or chattel paper constituting Collateral, duly endorsed or assigned by Debtor to Secured Party.

(l)Debtor will at all times keep all tangible Collateral insured against risks of fire (including so-called extended coverage), theft, and such other risks and in such amounts as Secured Party may reasonably request, with any loss payable to Secured Party to the extent of its interest.

(m)Debtor hereby authorizes the filing of such financing statements as Secured Party may deem necessary or useful to be filed in order to perfect the Security Interest and, if any Collateral is covered by a certificate of title, Debtor will from time to time execute such documents as may be required to have the Security Interest properly

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noted on a certificate of title.  In addition, Debtor authorizes Secured Party to file from time to time such financing statements against the Collateral described as “all personal property” or “all assets” or the like as Secured Party deems necessary or useful to perfect the Security Interest.

(n)Debtor will pay when due or reimburse Secured Party on demand for all costs of collection of any of the Obligations and all other out-of-pocket expenses (including in each case all reasonable attorneys’ fees) incurred by Secured Party in connection with the creation, perfection, satisfaction or enforcement of the Security Interest or the execution or creation, continuance or enforcement of this Security Agreement or any or all of the Obligations.

(o)Debtor will take all such actions as Secured Party may reasonably request to permit the Secured Party to establish, perfect and protect the Security Interest in all jurisdictions Secured Party deems necessary.  Without in any way limiting the generality of the foregoing, Debtor will execute, deliver or endorse any and all instruments, documents, assignments, security agreements and other agreements and writings which Secured Party may at any time reasonably request in order to secure, protect, perfect or enforce the Security Interest and Secured Party’s rights under this Security Agreement.

(p)Debtor will not use or keep any Collateral, or permit it to be used or kept, for any unlawful purpose or in violation of any federal, state or local law, statute or ordinance.

If Debtor at any time fails to perform or observe any of the foregoing agreements, immediately upon the occurrence of such failure, without notice or lapse of time, Secured Party may (but need not) perform or observe such agreement on behalf and in the name, place and stead of Debtor (or, at Secured Party’s option, in Secured Party’s own name) and may (but need not) take any and all other actions which Secured Party may reasonably deem necessary to cure or correct such failure (including, without limitation, the payment of taxes, the satisfaction of security interests, liens, or encumbrances, the performance of obligations under contracts or agreements with account debtors or other obligors, the procurement and maintenance of insurance, the execution of financing statements, the endorsement of instruments, and the procurement of repairs, transportation or insurance); and, except to the extent that the effect of such payment would be to render any loan or forbearance of money usurious or otherwise illegal under any applicable law, Debtor shall thereupon pay Secured Party on demand the amount of all moneys expended and all costs and expenses (including reasonable attorneys’ fees) incurred by Secured Party in connection with or as a result of Secured Party’s performing or observing such agreements or taking such actions, together with interest thereon from the date expended or incurred by Secured Party at the highest rate then applicable to any of the Obligations.  To facilitate the performance or observance by Secured Party of such agreements of Debtor, Debtor hereby irrevocably appoints (which appointment is coupled with an interest) Secured Party, or its delegate, as the attorney-in-fact of Debtor with the right (but not the duty) from time to time to create, prepare, complete, execute, deliver, endorse or file, in the name and on behalf of Debtor, any and all instruments, documents, financing statements, applications for insurance and other agreements

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and writings required to be obtained, executed, delivered or endorsed by Debtor under this Section 2.

3.Lock Box; Collateral Account.  If Secured Party so requests at any time after the occurrence of an Event of Default (as defined in Section 7 of this Security Agreement), Debtor will direct each of its account debtors to make payments due under the relevant account or chattel paper directly to a special lock box to be under the control of Secured Party (the “Lock Box”).  Debtor hereby authorizes and directs Secured Party to deposit into a special collateral account to be established and maintained with Secured Party (the “Collateral Account”) all checks, drafts, and cash payments received in the Lock Box.  All deposits in the Collateral Account shall constitute proceeds of Collateral and shall not constitute payment of any Obligation.  At its option, Secured Party shall, at any time, apply finally collected funds on deposit in the Collateral Account to the payment of the Obligations in such order of application as Secured Party may determine, or permit Debtor to withdraw all or any part of the balance.  If a Lock Box is so established, Debtor agrees that it will promptly deliver to Secured Party, for deposit into the Lock Box, all payments on accounts and chattel paper received by it.  All such payments shall be delivered to Secured Party in the form received (except for Debtor’s endorsement where necessary).  Until so deposited, all such payments on accounts and chattel paper received by Debtor shall be held in trust by Debtor for and as the property of Secured Party and shall not be commingled with any funds or property of Debtor.

4.Account Verification and Collection Rights of Secured Party.  At any time after the occurrence of any Event of Default or Unmatured Event of Default (as defined in the Credit Agreement), Secured Party shall have the right to verify any accounts in the name of Debtor or in Secured Party’s own name; and Debtor, whenever requested, shall furnish Secured Party with duplicate statements of the accounts, which statements may be mailed or delivered by Secured Party for that purpose.  Whether or not Secured Party exercises its rights under Section 3 of this Security Agreement, Secured Party may at any time (whether before or after the occurrence of an Event of Default) notify any account debtor or any other person obligated to pay any amount due, that such chattel paper, account or other right to payment has been assigned or transferred to Secured Party for security and shall be paid directly to Secured Party.  If Secured Party so requests at any time (whether before or after the occurrence of an Event of Default), Debtor will so notify such account debtors and other obligors in writing and will indicate on all invoices to such account debtors or other obligors that the amount due is payable directly to Secured Party.  At any time after Secured Party or Debtor gives such notice to an account debtor or other obligor, Secured Party may (but need not), in Secured Party’s own name or in Debtor’s name, demand, sue for, collect or receive any money or property at any time payable or receivable on account of, or securing, any such chattel paper, account or other right to payment, or grant any extension to, make any compromise or settlement with or otherwise agree to waive, modify, amend or change the obligations (including collateral obligations) of any such account debtor or other obligor.

5.Assignment of Insurance.  Debtor hereby assigns to Secured Party (for the ratable benefit of the Lenders), as additional security for the payment of the Obligations, any and all moneys (including but not limited to proceeds of insurance and refunds of unearned premiums) due or to become due under, and all other rights of Debtor under or with respect to,

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any and all policies of insurance covering the Collateral, and Debtor hereby directs the issuer of any such policy to pay any such moneys directly to Secured Party.  Both before and after the occurrence of an Event of Default, Secured Party may (but need not), in Secured Party’s own name or in Debtor’s name, execute and deliver proofs of claim, receive all such moneys, endorse checks and other instruments representing payment of such moneys, and adjust, litigate, compromise or release any claim against the issuer of any such policy.  Notwithstanding the foregoing, Debtor shall be entitled to use any such insurance proceeds to repair or replace any Collateral so long as no Unmatured Event of Default or Event of Default then exists.

6.Right to Offset.  Nothing in this Security Agreement shall be deemed a waiver or prohibition of Secured Party’s right of banker’s lien, offset, or counterclaim, which right Debtor hereby grants to Secured Party.

7.Events of Default.  The occurrence of any Event of Default, as defined in Section 13.1 of the Credit Agreement, shall constitute an Event of Default hereunder.

8.Remedies Upon Event of Default.  Upon the occurrence of an Event of Default and at any time thereafter until such Event of Default is cured to the written satisfaction of Secured Party, Secured Party may exercise any one or more of the rights or remedies set forth in Section 13.2 of the Credit Agreement.  All rights and remedies of Secured Party shall be cumulative and may be exercised singularly or concurrently, at Secured Party’s option, and the exercise or enforcement of any one such right or remedy shall neither be a condition to nor bar the exercise or enforcement of any other.

9.Other Personal Property.  If at the time Secured Party takes possession of any tangible Collateral, any goods, papers or other properties of Debtor, not affixed to or constituting a part of such Collateral, are located or to be found upon or within such Collateral, Debtor agrees to notify Secured Party in writing of that fact, describing the property so located or to be found, within 7 calendar days after the date on which Secured Party took possession. Unless and until Secured Party receives such notice from Debtor, Secured Party shall not be responsible or liable to Debtor for any action taken or omitted by or on behalf of Secured Party with respect to such property without actual knowledge of the existence of any such property or without actual knowledge of the fact that it was located or to be found upon such Collateral.

10.Amendment; Waivers.  This Security Agreement can be waived, modified, amended, terminated or discharged, and the Security Interest can be released, only explicitly in a writing signed by Secured Party and Debtor.  A waiver shall be effective only in the specific instance and for the specific purpose given.  Mere delay or failure to act shall not preclude the exercise or enforcement of any of Secured Party’s rights or remedies.

11.Notices.  All notices to be given to Debtor shall be deemed sufficiently given if given in the manner specified in Section 16.3 of the Credit Agreement.

12.Miscellaneous.  Secured Party’s duty of care with respect to Collateral in its possession (as imposed by law) shall be deemed fulfilled if Secured Party exercises reasonable care in physically safekeeping such Collateral or, in the case of Collateral in the custody or

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possession of a bailee or other third person, exercises reasonable care in the selection of the bailee or other third person, and Secured Party need not otherwise preserve, protect, insure or care for any Collateral.  Secured Party shall not be obligated to preserve any rights Debtor may have against prior parties, to realize on the Collateral at all or in any particular manner or order, or to apply any cash proceeds of Collateral in any particular order of application.  This Security Agreement shall be binding upon and inure to the benefit of Debtor and Secured Party and their respective representatives, successors and assigns and shall take effect when signed by Debtor and delivered to Secured Party, and Debtor waives notice of Secured Party’s acceptance hereof.  This Security Agreement shall be governed by the internal laws of the State of Minnesota, without giving effect to the conflicts of laws principles thereof.

13.Consent to Jurisdiction.  AT THE OPTION OF THE SECURED PARTY, THIS SECURITY AGREEMENT MAY BE ENFORCED IN ANY FEDERAL COURT OR MINNESOTA STATE COURT SITTING IN HENNEPIN COUNTY, MINNESOTA; AND THE DEBTOR CONSENTS TO THE JURISDICTION AND VENUE OF ANY SUCH COURT AND WAIVES ANY ARGUMENT THAT VENUE IN SUCH FORUMS IS NOT CONVENIENT.  IN THE EVENT THE DEBTOR COMMENCES ANY ACTION IN ANOTHER JURISDICTION OR VENUE UNDER ANY TORT OR CONTRACT THEORY ARISING DIRECTLY OR INDIRECTLY FROM THE RELATIONSHIP CREATED BY THIS SECURITY AGREEMENT, THE SECURED PARTY AT ITS OPTION SHALL BE ENTITLED TO HAVE THE CASE TRANSFERRED TO ONE OF THE JURISDICTIONS AND VENUES ABOVE-DESCRIBED, OR IF SUCH TRANSFER CANNOT BE ACCOMPLISHED UNDER APPLICABLE LAW, TO HAVE SUCH CASE DISMISSED WITHOUT PREJUDICE.

14.Waiver of Jury Trial.  EACH OF THE DEBTOR AND THE SECURED PARTY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS SECURITY AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

(The signature page follows.)

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THE PARTIES have executed this Security Agreement as of the day and year first above written.

Secured Party (as Agent
for the ratable benefit of the Lenders):	THE PRIVATEBANK AND TRUST COMPANY
	By:	/s/ Peter Pricco
		Its: Managing Director
Debtor:	WINMARK CAPITAL CORPORATION
	By:	/s/ Brett D. Heffes
		Its: Chief Financial Officer and Treasurer

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Exhibit A

Location of Collateral

Chief Place of
Business and
Collateral Location:	605 Highway 169 North, Suite 400
	Minneapolis, MN 55441
Collateral Location:	1942 Broadway Suite # 318 & 317
	Boulder, CO 80302
Collateral Location:	2 Ravinia Drive, Suite # 500
	Atlanta, GA 30346
Collateral Location:	1309 State Street, Suite A
	Santa Barbara, CA 93101
Collateral Location:	233 East Carillo Street, Suite C
	Santa Barbara, CA 93101

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SECURITY AGREEMENT

THIS SECURITY AGREEMENT dated as of July 13, 2010 is by and between GROW BIZ GAMES, INC., a Minnesota corporation (the “Debtor”), and THE PRIVATEBANK AND TRUST COMPANY, an Illinois bank and trust company (in its capacity as Agent for the ratable benefit of the Lenders referred to below) (the “Secured Party”).

RECITALS:

A.The Debtor, the Secured Party and certain other persons are parties to that certain Credit Agreement of even date herewith (as it may be amended, modified, supplemented, restated or replaced from time to time, the “Credit Agreement”) pursuant to which the Lenders from time to time party thereto (collectively, the “Lenders”) are providing financial accommodations to the Debtor and the other Loan Parties (as defined in the Credit Agreement).

B.The Debtor will benefit from the financial accommodations provided by the Lenders to the Loan Parties, and the Debtor desires to grant to the Secured Party (for the ratable benefit of the Lenders) a security interest in all of the Debtor’s property, all as provided herein.

AGREEMENTS:

IN CONSIDERATION of one dollar and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

1.Grant of Security Interest and Collateral.  In order to secure payment and performance of each and every debt, liability and obligation of every type and description which Debtor and/or any other Loan Party may now or at any time hereafter owe to the Secured Party and/or any other Lender whether such debt, liability or obligation now exists or is hereafter created or incurred, whether it arises under or is evidenced by this Security Agreement, the Credit Agreement, or any other present or future instrument or agreement or by operation of law, and whether it is or may be direct or indirect, due or to become due, absolute or contingent, primary or secondary, liquidated or unliquidated, or sole, joint, several or joint and several (all such debts, liabilities and obligations and any amendments, extensions, renewals or replacements thereof are herein collectively referred to as the “Obligations”), Debtor hereby grants the Secured Party (for the ratable benefit of the Lenders) a security interest (the “Security Interest”) in all of Debtor’s property (the “Collateral”), including without limitation the following:

(a)Inventory and Goods:  All inventory of Debtor, whether now owned or hereafter acquired and wherever located and other tangible personal property held for sale or lease or furnished or to be furnished under contracts of service or consumed in Debtor’s business, and all goods of Debtor, whether now owned or hereafter acquired and wherever located, including without limitation all computer programs embedded in goods, and all other Inventory and Goods, as each such term may be defined in the Uniform Commercial Code as in effect in the state of Minnesota from time to time (the “UCC”), of the Debtor, whether now owned or hereafter acquired;

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(b)Equipment:  All equipment of Debtor, whether now owned or hereafter acquired and wherever located, including but not limited to all present and future equipment, machinery, tools, motor vehicles, trade fixtures, furniture, furnishings, office and recordkeeping equipment and all goods for use in Debtor’s business, and all other Equipment (as such term may be defined in the UCC) of the Debtor, whether now owned or hereafter acquired, together with all parts, equipment and attachments relating to any of the foregoing;

(c)Accounts, Contract Rights and Other Rights to Payment:  Each and every right of Debtor to the payment of money, whether such right to payment now exists or hereafter arises, whether such right to payment arises out of a sale, lease, license, assignment or other disposition of goods or other property by Debtor, out of a rendering of services by Debtor, out of a loan by Debtor, out of the overpayment of taxes or other liabilities of Debtor, or otherwise arises under any contract or agreement, whether such right to payment is or is not already earned by performance, and howsoever such right to payment may be evidenced, together with all other rights and interests (including all liens and security interests) which Debtor may at any time have by law or agreement against any account debtor or other obligor obligated to make any such payment or against any of the property of such account debtor or other obligor; all including but not limited to all present and future debt instruments, chattel papers, accounts, license fees, contract rights, loans and obligations receivable and tax refunds, and all other Accounts (as such term may be defined in the UCC) of the Debtor, whether now owned or hereafter acquired;

(d)Instruments:  All instruments, chattel paper, letters of credit or other documents of Debtor, whether now owned or hereafter acquired, including but not limited to promissory notes, drafts, bills of exchange and trade acceptances; all rights and interests of Debtor, whether now existing or hereafter created or arising, under leases, licenses or other contracts, and all other Instruments (as such term may be defined in the UCC) of the Debtor, whether now owned or hereafter acquired;

(e)Deposit Accounts and Investment Property:  All right, title and interest of Debtor in all deposit and investment accounts maintained with any bank, savings and loan association, broker, brokerage, or any other financial institution, together with all monies and other property deposited or held therein, including, without limitation, any checking account, savings account, escrow account, savings certificate and margin account, and all securities, whether certificated or uncertificated, security entitlements, securities accounts, commodity contracts, and commodity accounts, and all other Deposit Accounts and Investment Property (as each such term may be defined in the UCC) of the Debtor, whether now owned or hereafter acquired;

(f)General Intangibles:  All general intangibles of Debtor, whether now owned or hereafter acquired, including, but not limited to, applications for patents, patents, copyrights, trademarks, trade secrets, good will, tradenames, customer lists, permits and franchises, software, and the right to use Debtor’s name, and any and all membership interests, governance rights, and financial rights in each and every limited liability company, and all payment intangibles, and all other General Intangibles (as such

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term may be defined in the UCC) of the Debtor, whether now owned or hereafter acquired;

(g)Chattel Paper:  All Chattel Paper (as such term may be defined in the UCC) of the Debtor, whether tangible or electronic, and whether now owned or hereafter acquired; and

(h)Documents, Embedded Software, Etc.:  All of Debtor’s rights in promissory notes, documents, embedded software, letter of credit rights and supporting obligations (and security interests and liens securing them) (as any such term may be defined in the UCC) whether now owned or hereafter acquired;

together with all substitutions and replacements for and products of any of the foregoing property and proceeds of any and all of the foregoing property and, in the case of all tangible Collateral, together with (i) all accessories, attachments, parts, equipment, accessions, repairs and embedded software, now or hereafter attached or affixed to or used in connection with any such goods, (ii) all warehouse receipts, bills of lading and other documents of title now or hereafter covering such goods, and (iii) all books and records of Debtor.

2.Representations, Warranties and Agreements.  Debtor represents, warrants and agrees that:

(a)Debtor is a corporation duly organized, validly existing and in good standing under the laws of the state of Minnesota.  This Security Agreement has been duly and validly authorized by all necessary corporate action.  Debtor has the requisite corporate power and authority to execute this Security Agreement, to perform Debtor’s obligations hereunder and to subject the Collateral to the Security Interest.  Debtor’s organizational charter number is 9T-371.

(b)The Collateral will be used primarily for business purposes.

(c)Debtor’s chief place of business is located at the address on Exhibit A attached hereto.  Debtor’s records concerning the Collateral are kept at such address.  The Collateral is located at the addresses set forth on Exhibit A attached hereto.  Debtor will give at least 30 days’ advance written notice to Secured Party of any change in Debtor’s name or jurisdiction of organization or chief place of business and any change in or addition of any Collateral location or any change in the location of Debtor’s records concerning the Collateral.

(d)Debtor has (or will have at the time Debtor acquires rights in Collateral hereafter arising) and will maintain absolute title to each item of Collateral free and clear of all security interests, liens and encumbrances, except the Security Interest (and the Liens permitted by the Credit Agreement), and will defend the Collateral against all claims or demands of all persons other than Secured Party (and the holders of Liens permitted by the Credit Agreement).

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(e)Except as otherwise provided in the Credit Agreement, Debtor will not sell or otherwise transfer or dispose of the Collateral or any interest therein.

(f)Debtor will not permit any tangible Collateral to be located in any state (and, if a county filing is required, in any county) in which a financing statement covering such Collateral is required to be, but has not in fact been, filed.

(g)All rights to payment and all instruments, documents, chattel papers and other agreements constituting or evidencing Collateral are (or will be when arising or issued) the valid, genuine and legally enforceable obligation, subject to no defense, set-off or counterclaim (other than those arising in the ordinary course of business) of each account debtor or other obligor named therein or in Debtor’s records pertaining thereto as being obligated to pay such obligation.  Debtor will not agree to any modification, amendment or cancellation of any such obligation without Secured Party’s prior written consent except discounts provided by Debtor in the ordinary course of business, and will not subordinate any such right to payment to claims of other creditors of such account debtor or other obligor.

(h)Debtor will keep all tangible Collateral in good repair, working order and condition, normal depreciation excepted, and will, from time to time, replace any worn, broken or defective parts thereof.

(i)Except as otherwise provided in the Credit Agreement, Debtor will promptly pay all taxes and other governmental charges levied or assessed upon or against any Collateral or upon or against the creation, perfection or continuance of the Security Interest.

(j)Debtor will promptly notify Secured Party of any material loss of or damage to any Collateral or of any adverse change in the prospect of payment of any material sums due on or under any instrument, chattel paper, account or contract right constituting Collateral.

(k)Debtor will if Secured Party at any time so requests (whether the request is made before or after the occurrence of an Event of Default), promptly deliver to Secured Party any instrument, document or chattel paper constituting Collateral, duly endorsed or assigned by Debtor to Secured Party.

(l)Debtor will at all times keep all tangible Collateral insured against risks of fire (including so-called extended coverage), theft, and such other risks and in such amounts as Secured Party may reasonably request, with any loss payable to Secured Party to the extent of its interest.

(m)Debtor hereby authorizes the filing of such financing statements as Secured Party may deem necessary or useful to be filed in order to perfect the Security Interest and, if any Collateral is covered by a certificate of title, Debtor will from time to time execute such documents as may be required to have the Security Interest properly

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noted on a certificate of title.  In addition, Debtor authorizes Secured Party to file from time to time such financing statements against the Collateral described as “all personal property” or “all assets” or the like as Secured Party deems necessary or useful to perfect the Security Interest.

(n)Debtor will pay when due or reimburse Secured Party on demand for all costs of collection of any of the Obligations and all other out-of-pocket expenses (including in each case all reasonable attorneys’ fees) incurred by Secured Party in connection with the creation, perfection, satisfaction or enforcement of the Security Interest or the execution or creation, continuance or enforcement of this Security Agreement or any or all of the Obligations.

(o)Debtor will take all such actions as Secured Party may reasonably request to permit the Secured Party to establish, perfect and protect the Security Interest in all jurisdictions Secured Party deems necessary.  Without in any way limiting the generality of the foregoing, Debtor will execute, deliver or endorse any and all instruments, documents, assignments, security agreements and other agreements and writings which Secured Party may at any time reasonably request in order to secure, protect, perfect or enforce the Security Interest and Secured Party’s rights under this Security Agreement.

(p)Debtor will not use or keep any Collateral, or permit it to be used or kept, for any unlawful purpose or in violation of any federal, state or local law, statute or ordinance.

If Debtor at any time fails to perform or observe any of the foregoing agreements, immediately upon the occurrence of such failure, without notice or lapse of time, Secured Party may (but need not) perform or observe such agreement on behalf and in the name, place and stead of Debtor (or, at Secured Party’s option, in Secured Party’s own name) and may (but need not) take any and all other actions which Secured Party may reasonably deem necessary to cure or correct such failure (including, without limitation, the payment of taxes, the satisfaction of security interests, liens, or encumbrances, the performance of obligations under contracts or agreements with account debtors or other obligors, the procurement and maintenance of insurance, the execution of financing statements, the endorsement of instruments, and the procurement of repairs, transportation or insurance); and, except to the extent that the effect of such payment would be to render any loan or forbearance of money usurious or otherwise illegal under any applicable law, Debtor shall thereupon pay Secured Party on demand the amount of all moneys expended and all costs and expenses (including reasonable attorneys’ fees) incurred by Secured Party in connection with or as a result of Secured Party’s performing or observing such agreements or taking such actions, together with interest thereon from the date expended or incurred by Secured Party at the highest rate then applicable to any of the Obligations.  To facilitate the performance or observance by Secured Party of such agreements of Debtor, Debtor hereby irrevocably appoints (which appointment is coupled with an interest) Secured Party, or its delegate, as the attorney-in-fact of Debtor with the right (but not the duty) from time to time to create, prepare, complete, execute, deliver, endorse or file, in the name and on behalf of Debtor, any and all instruments, documents, financing statements, applications for insurance and other agreements

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and writings required to be obtained, executed, delivered or endorsed by Debtor under this Section 2.

3.Lock Box; Collateral Account.  If Secured Party so requests at any time after the occurrence of an Event of Default (as defined in Section 7 of this Security Agreement), Debtor will direct each of its account debtors to make payments due under the relevant account or chattel paper directly to a special lock box to be under the control of Secured Party (the “Lock Box”).  Debtor hereby authorizes and directs Secured Party to deposit into a special collateral account to be established and maintained with Secured Party (the “Collateral Account”) all checks, drafts, and cash payments received in the Lock Box.  All deposits in the Collateral Account shall constitute proceeds of Collateral and shall not constitute payment of any Obligation.  At its option, Secured Party shall, at any time, apply finally collected funds on deposit in the Collateral Account to the payment of the Obligations in such order of application as Secured Party may determine, or permit Debtor to withdraw all or any part of the balance.  If a Lock Box is so established, Debtor agrees that it will promptly deliver to Secured Party, for deposit into the Lock Box, all payments on accounts and chattel paper received by it.  All such payments shall be delivered to Secured Party in the form received (except for Debtor’s endorsement where necessary).  Until so deposited, all such payments on accounts and chattel paper received by Debtor shall be held in trust by Debtor for and as the property of Secured Party and shall not be commingled with any funds or property of Debtor.

4.Account Verification and Collection Rights of Secured Party.  At any time after the occurrence of any Event of Default or Unmatured Event of Default (as defined in the Credit Agreement), Secured Party shall have the right to verify any accounts in the name of Debtor or in Secured Party’s own name; and Debtor, whenever requested, shall furnish Secured Party with duplicate statements of the accounts, which statements may be mailed or delivered by Secured Party for that purpose.  Whether or not Secured Party exercises its rights under Section 3 of this Security Agreement, Secured Party may at any time (whether before or after the occurrence of an Event of Default) notify any account debtor or any other person obligated to pay any amount due, that such chattel paper, account or other right to payment has been assigned or transferred to Secured Party for security and shall be paid directly to Secured Party.  If Secured Party so requests at any time (whether before or after the occurrence of an Event of Default), Debtor will so notify such account debtors and other obligors in writing and will indicate on all invoices to such account debtors or other obligors that the amount due is payable directly to Secured Party.  At any time after Secured Party or Debtor gives such notice to an account debtor or other obligor, Secured Party may (but need not), in Secured Party’s own name or in Debtor’s name, demand, sue for, collect or receive any money or property at any time payable or receivable on account of, or securing, any such chattel paper, account or other right to payment, or grant any extension to, make any compromise or settlement with or otherwise agree to waive, modify, amend or change the obligations (including collateral obligations) of any such account debtor or other obligor.

5.Assignment of Insurance.  Debtor hereby assigns to Secured Party (for the ratable benefit of the Lenders), as additional security for the payment of the Obligations, any and all moneys (including but not limited to proceeds of insurance and refunds of unearned premiums) due or to become due under, and all other rights of Debtor under or with respect to,

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any and all policies of insurance covering the Collateral, and Debtor hereby directs the issuer of any such policy to pay any such moneys directly to Secured Party.  Both before and after the occurrence of an Event of Default, Secured Party may (but need not), in Secured Party’s own name or in Debtor’s name, execute and deliver proofs of claim, receive all such moneys, endorse checks and other instruments representing payment of such moneys, and adjust, litigate, compromise or release any claim against the issuer of any such policy.  Notwithstanding the foregoing, Debtor shall be entitled to use any such insurance proceeds to repair or replace any Collateral so long as no Unmatured Event of Default or Event of Default then exists.

6.Right to Offset.  Nothing in this Security Agreement shall be deemed a waiver or prohibition of Secured Party’s right of banker’s lien, offset, or counterclaim, which right Debtor hereby grants to Secured Party.

7.Events of Default.  The occurrence of any Event of Default, as defined in Section 13.1 of the Credit Agreement, shall constitute an Event of Default hereunder.

8.Remedies Upon Event of Default.  Upon the occurrence of an Event of Default and at any time thereafter until such Event of Default is cured to the written satisfaction of Secured Party, Secured Party may exercise any one or more of the rights or remedies set forth in Section 13.2 of the Credit Agreement.  All rights and remedies of Secured Party shall be cumulative and may be exercised singularly or concurrently, at Secured Party’s option, and the exercise or enforcement of any one such right or remedy shall neither be a condition to nor bar the exercise or enforcement of any other.

9.Other Personal Property.  If at the time Secured Party takes possession of any tangible Collateral, any goods, papers or other properties of Debtor, not affixed to or constituting a part of such Collateral, are located or to be found upon or within such Collateral, Debtor agrees to notify Secured Party in writing of that fact, describing the property so located or to be found, within 7 calendar days after the date on which Secured Party took possession. Unless and until Secured Party receives such notice from Debtor, Secured Party shall not be responsible or liable to Debtor for any action taken or omitted by or on behalf of Secured Party with respect to such property without actual knowledge of the existence of any such property or without actual knowledge of the fact that it was located or to be found upon such Collateral.

10.Amendment; Waivers.  This Security Agreement can be waived, modified, amended, terminated or discharged, and the Security Interest can be released, only explicitly in a writing signed by Secured Party and Debtor.  A waiver shall be effective only in the specific instance and for the specific purpose given.  Mere delay or failure to act shall not preclude the exercise or enforcement of any of Secured Party’s rights or remedies.

11.Notices.  All notices to be given to Debtor shall be deemed sufficiently given if given in the manner specified in Section 16.3 of the Credit Agreement.

12.Miscellaneous.  Secured Party’s duty of care with respect to Collateral in its possession (as imposed by law) shall be deemed fulfilled if Secured Party exercises reasonable care in physically safekeeping such Collateral or, in the case of Collateral in the custody or

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possession of a bailee or other third person, exercises reasonable care in the selection of the bailee or other third person, and Secured Party need not otherwise preserve, protect, insure or care for any Collateral.  Secured Party shall not be obligated to preserve any rights Debtor may have against prior parties, to realize on the Collateral at all or in any particular manner or order, or to apply any cash proceeds of Collateral in any particular order of application.  This Security Agreement shall be binding upon and inure to the benefit of Debtor and Secured Party and their respective representatives, successors and assigns and shall take effect when signed by Debtor and delivered to Secured Party, and Debtor waives notice of Secured Party’s acceptance hereof.  This Security Agreement shall be governed by the internal laws of the State of Minnesota, without giving effect to the conflicts of laws principles thereof.

13.Consent to Jurisdiction.  AT THE OPTION OF THE SECURED PARTY, THIS SECURITY AGREEMENT MAY BE ENFORCED IN ANY FEDERAL COURT OR MINNESOTA STATE COURT SITTING IN HENNEPIN COUNTY, MINNESOTA; AND THE DEBTOR CONSENTS TO THE JURISDICTION AND VENUE OF ANY SUCH COURT AND WAIVES ANY ARGUMENT THAT VENUE IN SUCH FORUMS IS NOT CONVENIENT.  IN THE EVENT THE DEBTOR COMMENCES ANY ACTION IN ANOTHER JURISDICTION OR VENUE UNDER ANY TORT OR CONTRACT THEORY ARISING DIRECTLY OR INDIRECTLY FROM THE RELATIONSHIP CREATED BY THIS SECURITY AGREEMENT, THE SECURED PARTY AT ITS OPTION SHALL BE ENTITLED TO HAVE THE CASE TRANSFERRED TO ONE OF THE JURISDICTIONS AND VENUES ABOVE-DESCRIBED, OR IF SUCH TRANSFER CANNOT BE ACCOMPLISHED UNDER APPLICABLE LAW, TO HAVE SUCH CASE DISMISSED WITHOUT PREJUDICE.

14.Waiver of Jury Trial.  EACH OF THE DEBTOR AND THE SECURED PARTY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS SECURITY AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

(The signature page follows.)

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THE PARTIES have executed this Security Agreement as of the day and year first above written.

Secured Party (as Agent
for the ratable benefit of the Lenders):	THE PRIVATEBANK AND TRUST COMPANY
	By:	/s/ Peter Pricco
		Its: Managing Director
Debtor:	GROW BIZ GAMES, INC.
	By:	/s/ Brett D. Heffes
		Its: Treasurer

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Exhibit A

Location of Collateral

Chief Place of
Business and
Collateral Location:	605 Highway 169 North, Suite 400
	Minneapolis, MN 55441
Collateral Location:	1942 Broadway Suite # 318 & 317
	Boulder, CO 80302
Collateral Location:	2 Ravinia Drive, Suite # 500
	Atlanta, GA 30346
Collateral Location:	1309 State Street, Suite A
	Santa Barbara, CA 93101
Collateral Location:	233 East Carillo Street, Suite C
	Santa Barbara, CA 93101

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EX-10.4

Exhibit 10.4

PLEDGE AGREEMENT

THIS PLEDGE AGREEMENT, dated as of July 13, 2010, is made and given by WINMARK CORPORATION, a Minnesota corporation (the “Pledgor”) to THE PRIVATEBANK AND TRUST COMPANY, an Illinois bank and trust company (in its capacity as Agent for the ratable benefit of the Lenders referred to below) (the “Bank”).

RECITALS:

A.The Pledgor, the Bank and certain other persons are parties to that certain Credit Agreement of even date herewith (as it may be amended, modified, supplemented, restated or replaced from time to time, the “Credit Agreement”) pursuant to which the Lenders from time to time party thereto (collectively, the “Lenders”) are providing financial accommodations to the Pledgor and the other Loan Parties (as defined in the Credit Agreement).

B.The Pledgor owns all of the outstanding equity interests of Wirth Business Credit, Inc., a Minnesota corporation, Winmark Capital Corporation, a Minnesota corporation, and Grow Biz Games, Inc., a Minnesota corporation (the “Pledged Securities”).

C.The Pledgor will benefit from the financial accommodations provided by the Lenders to the Loan Parties, and the Pledgor finds it advantageous, desirable and in the Pledgor’s best interests to execute and deliver to the Bank this Agreement.

AGREEMENTS:

IN CONSIDERATION of the premises and in order to induce the Bank and the other Lenders to enter into the Credit Agreement and to extend credit accommodations to the Pledgor thereunder, the Pledgor hereby agrees with the Bank for the ratable benefit of the Lenders as follows:

Section 1.  Defined Terms.

(a)General.  As used in this Agreement, the following terms shall have the meanings indicated:

“Collateral” shall have the meaning given to such term in Section 2.

“Event of Default” shall have the meaning given to such term in Section 11.

“Lien” shall mean any security interest, mortgage, pledge, lien, charge, encumbrance, title retention agreement or analogous instrument or device (including the interest of the lessors under capitalized leases), in, of or on any assets or properties of the Person referred to.

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“Obligations” shall mean (a) any and all indebtedness, liabilities and obligations of the Pledgor and/or any other Loan Party to the Bank and/or any other Lender of every kind, nature or description under the Credit Agreement, including the Pledgor’s obligation on any note or notes hereafter issued in substitution or replacement thereof, whether due or to become due, and whether now existing or hereafter arising or incurred, (b) any and all liabilities of the Pledgor under this Agreement, whether due or to become due, and whether now existing or hereafter arising or incurred and (c) any and all other indebtedness, liabilities and obligations of the Pledgor and/or any other Loan Party to the Bank and/or any other Lender of every kind, nature or description, whether due or to become due, and whether now existing or hereafter arising or incurred.

“Person” shall mean any individual, corporation, partnership, limited partnership, limited liability company, joint venture, firm, association, trust, unincorporated organization, government or governmental agency or political subdivision or any other entity, whether acting in an individual, fiduciary or other capacity.

“Security Interest” shall have the meaning given to such term in Section 2.

(b)Terms Defined in Uniform Commercial Code.  All other terms used in this Agreement that are not specifically defined herein or the definitions of which are not incorporated herein by reference shall have the meaning assigned to such terms in the Uniform Commercial Code in effect in the State of Minnesota as of the date first above written to the extent such other terms are defined therein.

(c)Singular/Plural, Etc.  Unless the context of this Agreement otherwise clearly requires, references to the plural include the singular, references to the singular include the plural and “or” has the inclusive meaning represented by the phrase “and/or.”  The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.”  The words “hereof,” “herein,” “hereunder,” and similar terms in this Agreement refer to this Agreement as a whole and not to any particular provision of this Agreement.  References to Sections are references to Sections in this Pledge Agreement unless otherwise provided.

Section 2.  Pledge.  As security for the payment and performance of all of the Obligations, the Pledgor hereby pledges to the Bank (for the ratable benefit of the Lenders) and grants to the Bank (for the ratable benefit of the Lenders) a security interest (the “Security Interest”) in the following (the “Collateral”):

(a)The Pledged Securities and the certificates representing the Pledged Securities, and all distributions, dividends, cash, instruments and other property from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of the Pledged Securities.

(b)All additional securities of any issuer of the Pledged Securities from time to time acquired by the Pledgor in any manner, and the certificates representing such additional securities, and all distributions, dividends, cash, instruments and other property

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from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of such securities.

(c)All notes, debentures or other property constituting collateral for or otherwise securing the payment and/or performance of any such additional securities or equity interests.

(d)All proceeds of any and all of the foregoing (including proceeds that constitute property of types described above).

Section 3.  Delivery of Collateral.  All certificates and instruments representing or evidencing the Pledged Securities shall be delivered to the Bank contemporaneously with the execution of this Agreement.  All certificates and instruments representing or evidencing Collateral received by the Pledgor after the execution of this Agreement shall be delivered to the Bank promptly upon the Pledgor’s receipt thereof.  All such certificates and instruments shall be held by or on behalf of the Bank (for the ratable benefit of the Lenders) pursuant hereto and shall be in suitable form for transfer by delivery, or shall be accompanied by duly executed instruments of transfer or assignment in blank, all in form and substance satisfactory to the Bank.  The Bank shall have the right at any time, whether before or after an Event of Default, to cause any or all of the Collateral to be transferred of record into the name of the Bank or its nominee (but subject to the rights of the Pledgor under Section 6) and to exchange certificates and instruments representing or evidencing Collateral for certificates and instruments of smaller or larger denominations.  Notwithstanding any of the foregoing, as to any Collateral consisting of book-entry or uncertificated securities or securities which are held by a third Person, the Pledgor shall deliver to the Bank evidence satisfactory to the Bank that such Collateral has been registered in the name of, or as pledged to, the Bank (for the ratable benefit of the Lenders).  Such evidence shall include the acknowledgment of the issuer or Person holding such Collateral that such issuer or Person holds such Collateral as agent for the Bank (for the ratable benefit of the Lenders) and that such Collateral is identified on the books of such issuer or third Person as belonging to or pledged to the Bank (for the ratable benefit of the Lenders).

Section 4.  Certain Warranties and Covenants.  The Pledgor makes the following warranties and covenants with respect to such Pledgor and his Pledged Securities:

(a)The Pledgor has title to the Pledged Securities and will have title to each other item of Collateral hereafter acquired, free of all Liens except the Security Interest.

(b)The Pledgor has full power and authority to execute this Pledge Agreement, to perform the Pledgor’s obligations hereunder and to subject the Collateral to the Security Interest created hereby.

(c)No financing statement covering all or any part of the Collateral is on file in any public office (except for any financing statements filed by the Bank).

(d)The Pledged Securities have been duly authorized and validly issued by the issuer thereof and are fully paid and nonassessable.  The certificates representing the

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Pledged Securities are genuine.  The Pledged Securities are not subject to any offset or similar right or claim of the issuer thereof.

(e)The Pledgor’s company charter number is 5Z-841.

Section 5.  Further Assurances.  The Pledgor agrees that at any time and from time to time, at the expense of the Pledgor, the Pledgor will promptly execute and deliver all further instruments and documents, and take all further action that may be necessary or that the Bank may reasonably request, in order to perfect and protect the Security Interest or to enable the Bank to exercise and enforce its rights and remedies hereunder with respect to any Collateral (but any failure to request or assure that the Pledgor execute and deliver such instruments or documents or to take such action shall not affect or impair the validity, sufficiency or enforceability of this Agreement and the Security Interest, regardless of whether any such item was or was not executed and delivered or action taken in a similar context or on a prior occasion).  Without in any way limiting the generality of the foregoing, the Pledgor hereby authorizes the Bank to file from time to time such financing statements against the Collateral as the Bank deems necessary or useful to perfect the Security Interest.

Section 6.  Voting Rights; Dividends; Etc.

(a)Subject to Section 6(d), the Pledgor shall be entitled to exercise or refrain from exercising any and all voting and other consensual rights pertaining to the Pledged Securities or any other securities that become part of the Collateral or any part thereof for any purpose not inconsistent with the terms of this Agreement or the Credit Agreement; provided, however, that the Pledgor shall not exercise or refrain from exercising any such right if such action could reasonably be expected to have a material adverse effect on the value of the Collateral or any material part thereof.

(b)Subject to Section 6(e), the Pledgor shall be entitled to receive, retain, and use in any manner not prohibited by the Credit Agreement any and all distributions or dividends paid in respect of the Collateral; provided, however, that any and all

(i)distributions or dividends paid or payable other than in cash in respect of, and instruments and other property received, receivable or otherwise distributed in respect of, or in exchange for, any Collateral,

(ii)dividends and other distributions paid or payable in cash in respect of any Collateral in connection with a partial or total liquidation or dissolution or in connection with a reduction of capital, capital surplus or paid-in-surplus, and

(iii)cash paid, payable or otherwise distributed in redemption of, or in exchange for, any Collateral,

shall be, and shall be forthwith delivered to the Bank to hold as, Collateral (for the ratable benefit of the Lenders) and shall, if received by the Pledgor, be received in trust for the benefit of the Bank (for the ratable benefit of the Lenders), be segregated from the other

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property or funds of the Pledgor, and be forthwith delivered to the Bank as Collateral (for the ratable benefit of the Lenders) in the same form as so received (with any necessary endorsement or assignment).  The Pledgor shall, upon request by the Bank, promptly execute all such documents and do all such acts as may be necessary or desirable to give effect to the provisions of this Section 6(b).

(c)The Bank shall execute and deliver (or cause to be executed and delivered) to the Pledgor all such proxies and other instruments as the Pledgor may reasonably request for the purpose of enabling the Pledgor to exercise the voting and other rights that the Pledgor is entitled to exercise pursuant to Section 6(a) and to receive the dividends that the Pledgor is authorized to receive and retain pursuant to Section 6(b).

(d)Upon the occurrence and during the continuance of any Event of Default, the Bank shall have the right in its sole discretion, and the Pledgor shall execute and deliver all such proxies and other instruments as may be necessary or appropriate to give effect to such right, to terminate all rights of the Pledgor to exercise or refrain from exercising the voting and other consensual rights that the Pledgor would otherwise be entitled to exercise pursuant to Section 6(a), and all such rights shall thereupon become vested in the Bank (for the ratable benefit of the Lenders) who shall thereupon have the sole right to exercise or refrain from exercising such voting and other consensual rights; provided, however, that the Bank shall not be deemed to possess or have control over any voting rights with respect to any Collateral unless and until the Bank has given written notice to the Pledgor that any further exercise of such voting rights by the Pledgor is prohibited and that the Bank and/or its assigns will henceforth exercise such voting rights; and provided, further, that neither the registration of any item of Collateral in the Bank’s name nor the exercise of any voting rights with respect thereto shall be deemed to constitute a retention by the Bank of any such Collateral in satisfaction of the Obligations or any part thereof.

(e)Upon the occurrence and during the continuance of any Event of Default:

(i)all rights of the Pledgor to receive the distributions and dividends that the Pledgor would otherwise be authorized to receive and retain pursuant to Section 6(b) shall cease, and all such rights shall thereupon become vested in the Bank (for the ratable benefit of the Lenders) who shall thereupon have the sole right to receive and hold such distributions and dividends as Collateral, and

(ii)all payments of distributions and dividends that are received by the Pledgor contrary to the provisions of paragraph (i) of this Section 6(e) shall be received in trust for the benefit of the Bank (for the ratable benefit of the Lenders), shall be segregated from other funds of the Pledgor and shall be forthwith paid over to the Bank as Collateral (for the ratable benefit of the Lenders) in the same form as so received (with any necessary endorsement).

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Section 7.  Transfers and Other Liens; Additional Securities.

(a)The Pledgor agrees that the Pledgor will not (i) sell, assign (by operation of law or otherwise) or otherwise dispose of, or grant any option with respect to, any of the Collateral, or (ii) create or permit to exist any Lien upon or with respect to any of the Collateral.

(b)The Pledgor agrees that the Pledgor will (i) cause each issuer of the Pledged Securities that it controls not to issue any stock or other securities in addition to or in substitution for the Pledged Securities to any Person other than the Pledgor hereunder, and (ii) pledge hereunder, immediately upon the Pledgor’s acquisition (directly or indirectly) thereof, any and all additional securities of each issuer of the Pledged Securities.

Section 8.  Bank Appointed Attorney-in-Fact.  The Pledgor hereby appoints the Bank the Pledgor’s attorney-in-fact, with full authority in the place and stead of such Pledgor and in the name of such Pledgor or otherwise, from time to time in the Bank’s discretion, to take any action and to execute any instrument that the Bank may reasonably believe necessary or advisable to accomplish the purposes of this Agreement (subject to the rights of the Pledgor under Section 6), in a manner consistent with the terms hereof, including, without limitation, to receive, indorse and collect all instruments made payable to the Pledgor representing any dividend or other distribution in respect of the Collateral or any part thereof and to give full discharge for the same.

Section 9.  Bank May Perform.  If the Pledgor fails to perform any agreement contained herein, the Bank may itself perform, or cause performance of, such agreement, and the reasonable expenses of the Bank incurred in connection therewith shall be payable by the Pledgor under Section 14.

Section 10.  The Bank’s Duties.  The powers conferred on the Bank hereunder are solely to protect its interest in the Collateral and shall not impose any duty upon it to exercise any such powers.  The Bank shall be deemed to have exercised reasonable care in the safekeeping of any Collateral in its possession if such Collateral is accorded treatment substantially equal to the safekeeping which the Bank accords its own property of like kind.  Except for the safekeeping of any Collateral in its possession and the accounting for monies and for other properties actually received by it hereunder, the Bank shall have no duty, as to any Collateral, as to ascertaining or taking action with respect to calls, conversions, exchanges, maturities, tenders or other matters relative to any Collateral, whether or not the Bank has or is deemed to have knowledge of such matters, or as to the taking of any necessary steps to preserve rights against any Persons or any other rights pertaining to any Collateral.  The Bank will take action in the nature of exchanges, conversions, redemption, tenders and the like requested in writing by the Pledgor with respect to any of the Collateral in the Bank’s possession if the Bank in its reasonable judgment determines that such action will not impair the Security Interest or the value of the Collateral, but a failure of the Bank to comply with any such request shall not of itself be deemed a failure to exercise reasonable care.

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Section 11.  Event of Default.  The occurrence of any Event of Default, as defined in Section 13.1 of the Credit Agreement, shall constitute an Event of Default hereunder.

Section 12.  Remedies upon Default.  If any Event of Default shall have occurred and be continuing:

(a)The Bank may exercise in respect of the Collateral, in addition to other rights and remedies provided for herein or otherwise available to it, all the rights and remedies of a secured party on default under the Uniform Commercial Code of the State of Minnesota (the “Uniform Commercial Code”) in effect at that time (whether or not the Uniform Commercial Code then applies to the affected Collateral), and may, without notice except as specified below, sell the Collateral or any part thereof in one or more parcels at public or private sale, at any exchange, broker’s board or at any of the Bank’s offices or elsewhere, for cash, on credit or for future delivery, and upon such other terms as the Bank may reasonably believe are commercially reasonable.  The Pledgor agrees that, to the extent notice of sale shall be required by law, at least ten days’ prior notice to the Pledgor of the time and place of any public sale or the time after which any private sale is to be made shall constitute reasonable notification.  The Bank shall not be obligated to make any sale of Collateral regardless of notice of sale having been given.  The Bank may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned.  The Pledgor hereby waives all requirements of law, if any, relating to the marshalling of assets which would be applicable in connection with the enforcement by the Bank of its remedies hereunder, absent this waiver.

(b)The Bank may notify any Person obligated on any of the Collateral that the same has been assigned or transferred to the Bank (for the ratable benefit of the Lenders) and that the same should be performed as requested by, or paid directly to, the Bank, as the case may be.  The Pledgor shall join in giving such notice, if the Bank so requests.  The Bank may, in the Bank’s name or in the Pledgor’s name, demand, sue for, collect or receive any money or property at any time payable or receivable on account of, or securing, any such Collateral or grant any extension to, make any compromise or settlement with or otherwise agree to waive, modify, amend or change the obligation of any such Person.

(c)Any cash held by the Bank as Collateral (for the ratable benefit of the Lenders) and all cash proceeds received by the Bank in respect of any sale of, collection from, or other realization upon all or any part of the Collateral may, in the discretion of the Bank, be held by the Bank as Collateral (for the ratable benefit of the Lenders) for, or then or at any time thereafter be applied in whole or in part by the Bank against, all or any part of the Obligations (including any expenses of the Bank payable pursuant to Section 14).

Section 13.  Waiver of Certain Claims.  The Pledgor acknowledges that because of present or future circumstances, a question may arise under the Securities Act of 1933, as from

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time to time amended (the “Securities Act”), with respect to any disposition of the Collateral permitted hereunder.  The Pledgor understands that compliance with the Securities Act may very strictly limit the course of conduct of the Bank if the Bank were to attempt to dispose of all or any portion of the Collateral and may also limit the extent to which or the manner in which any subsequent transferee of the Collateral or any portion thereof may dispose of the same.  There may be other legal restrictions or limitations affecting the Bank in any attempt to dispose of all or any portion of the Collateral under the applicable Blue Sky or other securities laws or similar laws analogous in purpose or effect.  The Bank may be compelled to resort to one or more private sales to a restricted group of purchasers who will be obligated to agree, among other things, to acquire such Collateral for their own account for investment only and not to engage in a distribution or resale thereof.  The Pledgor agrees that the Bank shall not incur any liability, and any liability of the Pledgor for any deficiency shall not be impaired, as a result of the sale of the Collateral or any portion thereof at any such private sale in a manner that the Bank reasonably believes is commercially reasonable (within the meaning of the Uniform Commercial Code).  The Pledgor hereby waives any claims against the Bank arising by reason of the fact that the price at which the Collateral may have been sold at such sale was less than the price that might have been obtained at a public sale or was less than the aggregate amount of the Obligations, even if the Bank shall accept the first offer received and does not offer any portion of the Collateral to more than one possible purchaser.  The Pledgor further agrees that the Bank has no obligation to delay sale of any Collateral for the period of time necessary to permit the issuer of such Collateral to qualify or register such Collateral for public sale under the Securities Act, applicable Blue Sky laws and other applicable state and federal securities laws, even if the issuer would agree to do so.  Without limiting the generality of the foregoing, the provisions of this Section would apply if, for example, the Bank were to place all or any portion of the Collateral for private placement by an investment banking firm, or if such investment banking firm purchased all or any portion of the Collateral for its own account, or if the Bank placed all or any portion of the Collateral privately with a purchaser or purchasers.

Section 14.  Costs and Expenses; Indemnity.  The Pledgor will pay or reimburse the Bank on demand for all out-of-pocket expenses (including in each case all filing and recording fees and taxes and all reasonable fees and expenses of counsel and of any experts and agents) incurred by the Bank in connection with the creation, perfection, protection, satisfaction, foreclosure or enforcement of the Security Interest and the preparation, administration, continuance, amendment or enforcement of this Agreement, and all such costs and expenses shall be part of the Obligations secured by the Security Interest.  The Pledgor shall indemnify and hold the Bank harmless from and against any and all claims, losses and liabilities (including reasonable attorneys’ fees) growing out of or resulting from this Agreement (including enforcement of this Agreement) or the Bank’s actions pursuant hereto, except claims, losses or liabilities resulting from the Bank’s gross negligence or willful misconduct as determined by a final judgment of a court of competent jurisdiction.  Any liability of the Pledgor to indemnify and hold the Bank harmless pursuant to the preceding sentence shall be part of the Obligations secured by the Security Interest.  The obligations of the Pledgor under this Section shall survive any termination of this Agreement.

Section 15.  Waivers and Amendments; Remedies.  This Agreement can be waived, modified, amended, terminated or discharged, and the Security Interest can be released, only

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explicitly in a writing signed by the Bank.  A waiver so signed shall be effective only in the specific instance and for the specific purpose given.  Mere delay or failure to act shall not preclude the exercise or enforcement of any rights and remedies available to the Bank.  All rights and remedies of the Bank shall be cumulative and may be exercised singly in any order or sequence, or concurrently, at the Bank’s option, and the exercise or enforcement of any such right or remedy shall neither be a condition to nor bar the exercise or enforcement of any other.

Section 16.  Notices.  All notices to be given shall be deemed sufficiently given if sent in the same manner as provided in the Credit Agreement.

Section 17.  Pledgor Acknowledgments.  The Pledgor hereby acknowledges that (a) the Pledgor has been advised by counsel in the negotiation, execution and delivery of this Agreement, (b) the Bank has no fiduciary relationship to the Pledgor, the relationship being solely that of debtor and creditor, and (c) no joint venture exists between the Pledgor and the Bank.

Section 18.  Continuing Security Interest; Assignments under Note.  This Agreement shall create a continuing security interest in the Collateral and shall (a) remain in full force and effect until the indefeasible payment in full in cash of the Obligations and the expiration of the obligation, if any, of the Bank and the other Lenders to extend credit accommodations to the Pledgor, (b) be binding upon the Pledgor, and Pledgor’s successors and assigns, and (c) inure, together with the rights and remedies of the Bank hereunder, to the benefit of, and be enforceable by, the Bank and its legal representatives, successors, transferees and assigns.  Without limiting the generality of the foregoing clause (c), the Bank may assign or otherwise transfer all or any portion of its rights and obligations under the Credit Agreement to any other Person to the extent and in the manner provided in the Credit Agreement, and may similarly transfer all or any portion of its rights under this Pledge Agreement to such Persons.

Section 19.  Termination of Security Interest.  Upon indefeasible payment in full in cash of the Obligations and the expiration of any obligation of the Bank to extend credit accommodations to the Pledgor, the Security Interest granted hereby shall terminate and all rights to the Collateral shall revert to the Pledgor.  Upon any such termination, the Bank will return to the Pledgor such of the Collateral as shall not have been sold or otherwise applied pursuant to the terms hereof and execute and deliver to the Pledgor such documents as the Pledgor shall reasonably request to evidence such termination.  Any reversion or return of the Collateral upon termination of this Agreement and any instruments of transfer or termination shall be at the expense of the Pledgor and shall be without warranty by, or recourse on, the Bank.  As used in this Section, “Pledgor” includes any assigns of Pledgor, any Person holding a subordinate security interest in any part of the Collateral or whoever else may be lawfully entitled to any part of the Collateral.

Section 20.  Governing Law and Construction.  THE VALIDITY, CONSTRUCTION AND ENFORCEABILITY OF THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF MINNESOTA.  Whenever possible, each provision of this Agreement and any other statement, instrument or transaction contemplated hereby or relating hereto shall be interpreted in such manner as to be effective and

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valid under such applicable law, but, if any provision of this Agreement or any other statement, instrument or transaction contemplated hereby or relating hereto shall be held to be prohibited or invalid under such applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement or any other statement, instrument or transaction contemplated hereby or relating hereto.

Section 21.  Consent to Jurisdiction; Waiver of Jury Trial.  AT THE OPTION OF THE BANK, THIS AGREEMENT MAY BE ENFORCED IN ANY FEDERAL COURT OR MINNESOTA STATE COURT SITTING IN HENNEPIN COUNTY, MINNESOTA; AND THE PLEDGOR CONSENTS TO THE JURISDICTION AND VENUE OF ANY SUCH COURT AND WAIVES ANY ARGUMENT THAT VENUE IN SUCH FORUMS IS NOT CONVENIENT.  IN THE EVENT THE PLEDGOR COMMENCES ANY ACTION IN ANOTHER JURISDICTION OR VENUE UNDER ANY TORT OR CONTRACT THEORY ARISING DIRECTLY OR INDIRECTLY FROM THE RELATIONSHIP CREATED BY THIS AGREEMENT, THE BANK AT ITS OPTION SHALL BE ENTITLED TO HAVE THE CASE TRANSFERRED TO ONE OF THE JURISDICTIONS AND VENUES ABOVE-DESCRIBED, OR IF SUCH TRANSFER CANNOT BE ACCOMPLISHED UNDER APPLICABLE LAW, TO HAVE SUCH CASE DISMISSED WITHOUT PREJUDICE.  EACH OF THE PLEDGOR AND THE BANK IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

Section 22.  Counterparts.  This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute but one and the same instrument.

Section 23.  General.  All representations and warranties contained in this Agreement or in any other agreement between the Pledgor and the Bank shall survive the execution, delivery and performance of this Agreement and the creation and payment of the Obligations.  The Pledgor waives notice of the acceptance of this Agreement by the Bank.  Captions in this Agreement are for reference and convenience only and shall not affect the interpretation or meaning of any provision of this Agreement.

(The signature page follows.)

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EACH PLEDGOR has caused this Pledge Agreement to be duly executed and delivered as of the date first above written.

	PLEDGOR:
	WINMARK CORPORATION
	By:	/s/ Brett D. Heffes
	Its:	President, Finance and Administration
	Address for Pledgor:
	605 Highway 169 North
	Suite 400
	Minneapolis, MN 55422
	Attention: Chief Financial Officer
Address for Bank:
The PrivateBank and Trust Company
50 South Sixth Street, Suite 1415
Minneapolis, MN 55402
Attention: Peter Pricco

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EX-10.5

Exhibit 10.5

REVOLVING NOTE

	July 13, 2010
$30,000,000	Minneapolis, Minnesota

The undersigned, jointly and severally, for value received, promise to pay to the order of THE PRIVATEBANK AND TRUST COMPANY, an Illinois bank and trust company (the “Lender”), at the Administrative Agent’s Office (as defined in the Credit Agreement), the principal sum of Thirty Million Dollars ($30,000,000) or the aggregate unpaid amount of all Loans made to the undersigned by the Lender pursuant to the Credit Agreement referred to below (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 Loan from the date of such Loan until such 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, The PrivateBank and Trust Company, 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.

WINMARK CORPORATION		GROW BIZ GAMES, INC.
By:	/s/ Brett D. Heffes	By:	/s/ Brett D. Heffes
Name:	Brett D. Heffes	Name:	Brett D. Heffes
Title:	President, Finance and Administration	Title:	Treasurer
WIRTH BUSINESS CREDIT, INC.		WINMARK CAPITAL CORPORATION
By:	/s/ Brett D. Heffes	By:	/s/ Brett D. Heffes
Name:	Brett D. Heffes	Name:	Brett D. Heffes
Title:	Treasurer	Title:	Chief Financial Officer and Treasurer

EX-31.1

EXHIBIT 31.1

CERTIFICATION PURSUANT TO

SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002

I, John L. Morgan, certify that:

1.I have reviewed this report on Form 10-Q of Winmark Corporation;

2.Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

3.Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

4.The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

(c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

(d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

5.The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

Date: July 23, 2010	/s/ John L. Morgan
	John L. Morgan
	Chief Executive Officer

EX-31.2

EXHIBIT 31.2

CERTIFICATION PURSUANT TO

SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002

I, Anthony D. Ishaug, certify that:

1.I have reviewed this report on Form 10-Q of Winmark Corporation;

2.Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

3.Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

4.The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

(c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

(d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

5.The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

Date: July 23, 2010	Signature:	/s/ Anthony D. Ishaug
		Anthony D. Ishaug
		Chief Financial Officer and Treasurer

EX-32.1

EXHIBIT 32.1

CERTIFICATION PURSUANT TO

18 U.S.C. SECTION 1350,

AS ADOPTED PURSUANT TO

SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

In connection with the Quarterly Report of Winmark Corporation (the “Company”) on Form 10-Q for the quarter ended June 26, 2010 as filed with the Securities and Exchange Commission (the “Report”), I, John L. Morgan, Chief Executive Officer of the Company, certify, pursuant to 18 U.S.C. §1350, as adopted pursuant to §906 of the Sarbanes-Oxley Act of 2002, that:

(1)           The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and

(2)           The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

A signed original of this written statement required by Section 906 has been provided to Winmark Corporation and will be retained by Winmark Corporation and furnished to the Securities and Exchange Commission upon request.

Date: July 23, 2010	/s/ John L. Morgan
	John L. Morgan
	Chief Executive Officer

EX-32.2

EXHIBIT 32.2

CERTIFICATION PURSUANT TO

18 U.S.C. SECTION 1350,

AS ADOPTED PURSUANT TO

SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

In connection with the Quarterly Report of Winmark Corporation (the “Company”) on Form 10-Q for the quarter ended June 26, 2010 as filed with the Securities and Exchange Commission (the “Report”), I, Anthony D. Ishaug, Chief Financial Officer and Treasurer of the Company, certify, pursuant to 18 U.S.C. §1350, as adopted pursuant to §906 of the Sarbanes-Oxley Act of 2002, that:

(1)           The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and

(2)           The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

A signed original of this written statement required by Section 906 has been provided to Winmark Corporation and will be retained by Winmark Corporation and furnished to the Securities and Exchange Commission upon request.

Date: July 23, 2010	/s/ Anthony D. Ishaug
	Anthony D. Ishaug
	Chief Financial Officer and Treasurer