Execution Copy
Exhibit 10.1
WAIVER
This Waiver (“ Waiver ”) is
entered into as of March 30, 2009 by and among Select Comfort
Corporation (the “ Company ”), Select Comfort
Retail Corporation, the other financial institutions signatory
hereto (the " Lenders "), JPMorgan Chase Bank, National
Association, as Administrative Agent and Bank of America, N.A., as
Syndication Agent.
RECITALS
A. The
Company, the Subsidiary Borrowers, the Administrative Agent and the
Lenders are party 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 the Credit Agreement
dated as of December 2, 2008, Amendment No. 5 to the Credit
Agreement dated as of January 2, 2009, Amendment No. 6 to the
Credit Agreement dated as of January 15, 2009. Amendment No. 7 to
the Credit Agreement dated as of January 31, 2009 and Amendment No.
8 to the Credit Agreement dated as of February 28, 2009 (the
“ Credit Agreement ”). Unless
otherwise specified herein, capitalized terms used in this Waiver
shall have the meanings ascribed to them by the Credit
Agreement.
B. The
Company has requested that the Administrative Agent and the Lenders
grant a limited waiver with respect to the Credit
Agreement.
C. The
Administrative Agent and the undersigned Lenders are willing to
grant such 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.
Limited Waiver . Upon satisfaction of the
conditions to effectiveness set forth in paragraph 3 below, the
Administrative Agent and the Lenders signatory hereto hereby waive
the requirement that the Company (i) deliver its audit for fiscal
year 2008 under Section 5.01(a) of the Credit Agreement without a
"going concern" qualification or exception, (ii) comply with the
financial covenant set forth in Section 6.09 of the Credit
Agreement for the respective fiscal periods ending on or about
December 31, 2008 through March 31, 2009, (iii) comply with the
financial covenant set forth in Section 6.10 of the Credit
Agreement for the fiscal period ending on or about March 31, 2009,
and (iv) comply with the financial covenant set forth in Section
6.12 of the Credit Agreement for the fiscal period ending on or
about December 31, 2008, provided such waivers in each case shall
expire at 5 p.m. on April 18, 2009, at which time the terms and
provisions of Sections 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.
2.
Representations and Warranties of the Company
. The Company represents and warrants that:
(a) The
execution, delivery and performance by the Company of this Waiver
has been duly authorized by all necessary corporate action and this
Waiver is a legal, valid and binding obligation of the Company
enforceable against the Company 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 true and correct in all
material respects on and as of the date hereof as if made on the
date hereof (except any such representation or warranty that
expressly relates to or is made expressly as of a specific earlier
date, in which case such representation or warranty shall be true
and correct with respect to or as of such specific earlier
date).
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