Exhibit 10.1
Execution Copy
AMENDMENT NO. 13 TO CREDIT AGREEMENT
This Amendment No. 13 to Credit Agreement (this
“ Thirteenth Amendment ”) is entered into as of
September 22, 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,
Amendment No. 11 to Credit Agreement ("Amendment No. 11") dated as
of May 22, 2009, and Amendment No. 12 to Credit Agreement dated as
of September 15, 2009 (the “ Credit Agreement
”). Unless otherwise specified herein, capitalized
terms used in this Thirteenth 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), 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
$30,000,000.
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 29, 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 Thirteenth Amendment has been duly
authorized by all necessary corporate action and this Thirteenth
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
bankruptcy, insolvency, reorganization, moratorium or similar law
affecting creditors’ rights generally and (ii) general
principles of equity, regardless of whether considered in a
proceeding in equity or at law.
(b) Each of the
representations and warranties contained in the Credit Agreement
and the other Credit Documents is tru
