Execution Copy
Exhibit 10.1
AMENDMENT NO. 12 TO CREDIT AGREEMENT
This Amendment No. 12 to Credit Agreement (this
“ Twelfth Amendment ”) is entered into as of
September 4, 2009 by and among Select Comfort Corporation (the
“ Company ”), JPMorgan Chase Bank, National
Association, as Administrative Agent and Collateral Agent, Bank of
America, N.A., as Syndication Agent, and the financial institutions
signatories hereto as lenders (the “ Lenders
”).
RECITALS
A. The
undersigned are parties to that certain Credit Agreement dated as
of June 9, 2006, as amended pursuant to Amendment No. 1 to Credit
Agreement dated as of June 28, 2007, Amendment No. 2 to Credit
Agreement dated as of February 1, 2008, Amendment No. 3 to Credit
Agreement dated as of May 30, 2008, Amendment No. 4 to Credit
Agreement dated as of December 2, 2008, Amendment No. 5 to Credit
Agreement dated as of January 2, 2009, Amendment No. 6 to Credit
Agreement dated as of January 15, 2009 (“Amendment No.
6”), Amendment No. 7 to Credit Agreement dated as of January
31, 2009, Amendment No. 8 to Credit Agreement dated as of February
28, 2009, Amendment No. 9 to Credit Agreement dated as of April 18,
2009, Amendment No. 10 to Credit Agreement dated as of May 8, 2009,
and Amendment No. 11 to Credit Agreement ("Amendment No. 11") dated
as of May 22, 2009 (the “ Credit Agreement
”). Unless otherwise specified herein, capitalized
terms used in this Twelfth Amendment shall have the meanings
ascribed to them by the Credit Agreement.
B. The
Company has requested that the Lenders further amend the Credit
Agreement to reflect certain changes thereto and to grant a waiver
with respect to the Credit Agreement.
C. The
undersigned Lenders are willing to amend the Credit Agreement and
to grant a waiver on the terms and conditions set forth
below.
Now, therefore, in consideration of the mutual
execution hereof and other good and valuable consideration, the
parties hereto agree as follows:
1. Amendments to
Credit Agreement . On the Effective Date (as defined
below), the Credit Agreement is hereby amended as
follows:
(a) Section
6.13 of the Credit Agreement is hereby amended to read in full as
follows:
SECTION 6.13 Minimum
Availability . The Company shall not permit the
outstanding principal balance of the Loans plus the LC Exposure to
exceed at any time the aggregate amount of the Commitments less
$20,000,000.
(b) Article
VI of the Credit Agreement is hereby amended to add the following
new Section 6.17 at the end thereof:
SECTION 6.17
Securities Purchase Agreement . Without the prior
written consent of the Agent in each instance, the Company shall
not amend, supplement or otherwise modify that certain Securities
Purchase Agreement, dated as of May 22, 2009, by and among the
Company, Sterling SC Investors, LLC and the other Buyers designated
therein; provided that the foregoing does not prohibit the Company
from terminating such Securities Purchase Agreement in accordance
with its terms.
2. Limited
Waiver . On the Effective Date, the Administrative
Agent and the Lenders signatory hereto hereby waive the
Company’s (i) breach of Section 5.01(a) of the Credit
Agreement occasioned by its delivery of an audit for fiscal year
2008 with a “going concern” qualification, (ii) breach
of Section 6.09 of the Credit Agreement for the respective fiscal
period ending on or about December 31, 2008 and other applicable
fiscal periods ending on or prior to a Waiver Termination Event,
(iii) breach of Section 6.10 of the Credit Agreement for the
respective fiscal period ending on or about March 31, 2009 and
other applicable fiscal periods ending on or prior to a Waiver
Termination Event, and (iv) breach of the financial covenant set
forth in Section 6.12 of the Credit Agreement for the fiscal period
ending on or about December 31, 2008 and other applicable fiscal
periods ending on or prior to a Waiver Termination Event,
provided such waivers shall expire on the occurrence of any
Waiver Termination Event, and upon such expiration the terms and
provisions of Sections 5.01(a), 6.09, 6.10 and 6.12 of the Credit
Agreement shall be effective with the same force and effect under
the Credit Agreement as if such waivers had not been
given. As used in this paragraph 2, “Waiver
Termination Event” means the earliest to occur of (A) 5 p.m.
Chicago time on September 15, 2009, and (B) if at any time Capital
Expenditures for the period commencing on the first day of the
fiscal month for January, 2009 through the date of determination
exceeds $4,000,000 in the aggregate.
3. Representations
and Warranties of the Company . The Company and each
Subsidiary Guarantor represents and warrants that:
(a) Its execution,
delivery and performance of this Twelfth Amendment has been duly
authorized by all necessary corporate action and this Twelfth
Amendment is its legal, valid and binding obligation enforceable
against it in accordance with its terms, except as the enforcement
thereof may be subject to (i) the effect of any
applicable
