Exhibit 10.1
Execution Copy
WAIVER
This Waiver (“ Waiver ”) is
entered into as of September 15, 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 dated as of May 22, 2009
("Amendment No. 11"), and Amendment No. 12 to Credit Agreement
dated as of September 4, 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
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 1, “Waiver
Termination Event” means the earliest to occur of (A) 5 p.m.
Chicago time on September 22, 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.
2. Representations
and Warranties of the Company . The Company and each
Subsidiary Guarantor represents and warrants that:
(a) Its
execution, delivery and performance of this Waiver has been duly
authorized by all necessary corporate action and this Waiver 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 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 r
