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WAIVER

Waiver Agreement

WAIVER | Document Parties: Bank of America, N.A. | BRANCH BANKING AND TRUST CO | CITICORP USA, INC | JPMorgan Chase Bank, National Association | Select Comfort Corporation | Select Comfort Retail Corporation | WELLS FARGO BANK, NATIONAL ASSOCIATION You are currently viewing:
This Waiver Agreement involves

Bank of America, N.A. | BRANCH BANKING AND TRUST CO | CITICORP USA, INC | JPMorgan Chase Bank, National Association | Select Comfort Corporation | Select Comfort Retail Corporation | WELLS FARGO BANK, NATIONAL ASSOCIATION

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Title: WAIVER
Governing Law: New York     Date: 4/3/2009
Industry: Furniture and Fixtures     Sector: Consumer Cyclical

WAIVER, Parties: bank of america  n.a. , branch banking and trust co , citicorp usa  inc , jpmorgan chase bank  national association , select comfort corporation , select comfort retail corporation , wells fargo bank  national association
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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).

 

(c)  


 
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