Exhibit 10.1
Execution Copy
WAIVER
This Waiver (“ Waiver
”) is entered into as of October 13, 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"), Amendment No. 12 to Credit Agreement dated as
of September 4, 2009, and Amendment No. 13 to Credit Agreement
dated as of September 22, 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 October 27, 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
