exhibit10_1.htm


    EXHIBIT
10.1

    


     

    AMENDMENT NO. 5 TO CREDIT
AGREEMENT

     

    This
Amendment No. 5 to Credit Agreement (this “Fifth Amendment”) is
entered into as of January 2, 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 and Amendment No. 4 ("Amendment No. 4") to
the Credit Agreement dated as of December 2, 2008 (the “Credit
Agreement”).  Unless otherwise specified herein, capitalized
terms used in this Fifth Amendment shall have the meanings ascribed to them by
the Credit Agreement.

     

    B.           The
Company has requested that the Administrative Agent and the Lenders further
amend the Credit Agreement to reflect certain changes thereto and to grant a
limited waiver with respect to the Credit Agreement.

     

    C.           The
Administrative Agent and the undersigned Lenders are willing to amend the Credit
Agreement and to grant a limited 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.           Reduction of Aggregate
Commitments.  Notwithstanding the terms and provisions of
Amendment No. 4, the aggregate amount of the Lenders' Commitments shall be
reduced to $85,000,000 commencing on January 16, 2009 and to $80,000,000
commencing on July 1, 2009.  Accordingly, Schedule 2.01 of the Credit
Agreement is hereby amended and restated as set forth on Annex I
hereto.

     

    2.           Limited
Waiver.  Upon satisfaction of the conditions to effectiveness
set forth in paragraph 4 below, the Administrative Agent and the Lenders
signatory hereto hereby waive the requirement that the Company comply with the
financial covenants set forth in Sections 6.09 and 6.12 of the Credit Agreement
for the fiscal period ending on or about December 31, 2008, provided such waiver
shall expire at 5 p.m. on January 15, 2009, at which time the terms and
provisions of Sections 6.09 and 6.12 of the Credit Agreement shall be effective
with the same force and effect under the Credit Agreement as if such waiver had
not been given.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    3.           Representations and
Warranties of the Company.  The Company represents and warrants
that:

     

    (a)           The
execution, delivery and performance by the Company of this Fifth Amendment has
been duly authorized by all necessary corporate action and this Fifth Amendment
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)           After
giving effect to this Fifth Amendment, no Default has occurred and is
continuing.

     

    4.           Effective
Date.  This Fifth Amendment shall become effective upon receipt
by the Administrative Agent of (i) duly executed counterparts of this Fifth
Amendment from the Company, Select Comfort Retail Corporation and the Lenders,
(ii) the Reaffirmation of Guaranty in the form attached hereto as Exhibit A executed by
each of the Subsidiary Guarantors, and (iii) payment of all fees and
out-of-pocket costs and expenses of its counsel and the financial advisor
retained by its counsel invoiced through the date hereof.

     

    5.           Reference to and Effect Upon
the Credit Agreement.

     

    (a)           Except
as specifically amended above, the Credit Agreement and the other Credit
Documents shall remain in full force and effect and are hereby ratified and
confirmed.

     

    (b)           The
execution, delivery and effectiveness of this Fifth Amendment shall not operate
as a waiver of any right, power or remedy of the Administrative Agent or any
Lender under the Credit Agreement or any Credit Document, nor constitute a
waiver of any provision of the Credit Agreement or any Credit Document, except
as specifically set forth herein.  Upon the effectiveness of this
Fifth Amendment, each reference in the Credit Agreement to “this Agreement”,
“hereunder”, “hereof”, “herein” or words of similar import shall mean and be a
reference to the Credit Agreement as amended hereby.

     

    6.           Release of Claims and
Waiver.  Each of the Company and each of its Subsidiaries
hereby releases, remises, acquits and forever discharges each of the Lenders and
such Lender's employees, agents, representatives, consultants, attorneys,
fiduciaries, servants, officers, directors, partners, predecessors, successors
and assigns, subsidiary corporations, parent corporations, and related corporate
divisions (all of the foregoing hereinafter called the "Released Parties"),
from any and all actions and causes of action, judgments, executions, suits,
debts, claims, demands, liabilities, obligations, damages and expenses of any
and every character, known or unknown, direct and/or indirect, at law or in
equity, of whatsoever kind or nature, for or because of any matter or things
done, omitted or suffered to be done by any of the Released Parties prior to and
including the date of execution hereof, and in any way directly or indirectly
arising out of or in any way connected to this Fifth Amendment, the Collateral,
the Loans, the Credit Agreement, or the other Credit Documents (all of the
foregoing hereinafter called the "Released
Matters").  Each of the Company and each of its
Subsidiaries acknowledges that the agreements in this paragraph are
intended to be in full satisfaction of all or any alleged injuries or damages
arising in connection with the Released Matters. Each of the Company and each of
its Subsidiaries represents and warrants to the Lenders that it has not
purported to transfer, assign or otherwise convey any right, title or interest
of the Company in any Released Matter to any other person and that the foregoing
constitutes a full and complete release of all Released Matters.

     

     

    
      
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    7.           Costs and
Expenses.  The Company hereby affirms its obligations under
Section 9.03 of the Credit Agreement to reimburse the Administrative Agent for
all reasonable costs and out-of-pocket expenses paid or incurred by the
Administrative Agent in connection with the preparation, negotiation, execution
and delivery of this Fifth Amendment, including but not limited to the
reasonable fees, charges and disbursements of attorneys for the Administrative
Agent with respect thereto.

     

    8.           Governing
Law.  This Agreement shall be construed in accordance with and
governed by the law of the State of New York (without regard to conflict of law
provisions thereof).

     

    9.           Headings.  Section
headings in this Fifth Amendment are included herein for convenience of
reference only and shall not constitute a part of this Fifth Amendment for any
other purposes.

     

    10.           Counterparts.  This
Fifth Amendment may be executed in any number of counterparts, each of which
when so executed shall be deemed an original but all such counterparts shall
constitute one and the same instrument.

     

     [signature
pages follow]

     


    
      
         
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    IN
WITNESS WHEREOF, the parties have executed this Fifth Amendment as of the date
and year first above written.

     

    SELECT
COMFORT CORPORATION, as a Borrower

     

    By                      /s/ James C.
Raabe                                           

    Name:                James
C. Raabe

    Title:                  CFO

    


     

    SELECT
COMFORT RETAIL CORPORATION

     

    By                      /s/ James C.
Raabe                                           

    Name:                James
C. Raabe

    Title:                  CFO

    


     


    
      
         
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    JPMORGAN
CHASE BANK, NATIONAL ASSOCIATION, individually,

    as
Administrative Agent and as Collateral Agent

     

    By                      /s/ Patricia S.
Carpen                                                      

    Name:                Patricia
S. Carpen

    Title:                  Vice
President

    


     

    BANK OF
AMERICA, N.A., individually and as Syndication Agent

     

    By                      /s/ Lynn D.
Simmons                                                      

    Name:                Lynn
D. Simmons

    Title:                  Senior
Vice President

    


     

    CITICORP
USA, INC., as a Lender

    By                      /s/ Sugam
Mehta                                           

    Name:                Sugam
Mehta

    Title:                  Vice
President

    


    


    WELLS
FARGO BANK, NATIONAL ASSOCIATION,

    as a
Lender

     

    By                      /s/ Troy
Jefferson                                           

    Name:                Troy
Jefferson

    Title:                  Vice
President

    


     

    BRANCH
BANKING AND TRUST CO., as a Lender

     

    By                      /s/ Michael
Skorich                                           

    Name:                Michael
Skorich

    Title:                  Senior
Vice President

    


     

    


     


    
      
         
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    ANNEX I

    


    Schedule
2.01

    


    Commitments

    


    


    
      	 
      	
              January
      2, 2009 –

              January
      15, 2009

            	
              January
      16, 2009 – 

              June
      30, 2009

            	
              July
      1, 2009 and thereafter

            
	
              JPMorgan
      Chase Bank, National Association

            	
              $24,300,000

            	
              $22,950,000

            	
              $21,600,000

            
	
              Bank
      of America, N.A.

            	
              $20,700,000

            	
              $19,550,000

            	
              $18,400,000

            
	
              Citicorp
      USA, Inc.

            	
              $18,000,000

            	
              $17,000,000

            	
              $16,000,000

            
	
              Wells
      Fargo Bank, National Association

            	
              $13,500,000

            	
              $12,750,000

            	
              $12,000,000

            
	
              Branch
      Banking and Trust Co.

            	
              $13,500,000

            	
              $12,750,000

            	
              $12,000,000

            
	
              TOTAL
       

            	
              $90,000,000

            	
              $85,000,000

            	
              $80,000,000

            


    

     

    
 

    
      
         
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    EXHIBIT
A

     

    REAFFIRMATION OF
GUARANTY

     

    The
undersigned hereby acknowledges receipt of a copy of Amendment No. 5 to the
Credit Agreement (the “Fifth Amendment”)
dated as of January 2, 2009, and reaffirms its obligations under the Subsidiary
Guaranty dated as of June 9, 2006 in favor of JPMorgan Chase Bank, National
Association, as Administrative Agent, and the Lenders (as defined in the Fifth
Amendment).

     

    Dated as
of January 2, 2009

     

    


     

    SELECT
COMFORT RETAIL CORPORATION

     

    By                      /s/ James C.
Raabe                                           

    Name:                James
C. Raabe

    Title:                  CFO