Exhibit 10.1
FORBEARANCE
AGREEMENT
THIS FORBEARANCE AGREEMENT is
entered into as of May 22, 2009 by and between INFOCUS
CORPORATION, an Oregon corporation (“Borrower”), WELLS
FARGO BANK, NATIONAL ASSOCIATION, both in its individual capacity
as a Lender and as administrative Wells Fargo for the Lenders
designated in the Credit Agreement referred to below (“Wells
Fargo”).
RECITALS
A. Borrower, Wells Fargo and the
Lenders have previously entered into that certain Credit Agreement
dated as of October 25, 2004 (as amended, the “
Credit Agreement ”).
B. Wells Fargo and Borrower desire
to address Borrower’s failure to comply with the requirements
of Section 6.8 of the Credit Agreement as a result of the
Change of Control that occurred on May 22, 2009 (the
“Breach”).
C. Borrower is entering into this
Amendment with the understanding and agreement that, except as
specifically provided herein, none of Wells Fargo’s or any
member of the Lender Group’s rights or remedies set forth in
the Credit Agreement or any other Loan Document is being waived or
modified by the terms of this Amendment.
AGREEMENT
NOW, THEREFORE, in consideration of
the foregoing and the mutual covenants herein contained, and for
other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereby agree as
follows:
1. Definitions
. All terms defined above
shall have the meanings set forth above. All capitalized terms not
defined herein shall have the meanings attributed to them in the
Credit Agreement. The following term shall have the meaning set
forth below:
“ Interim Period
” means the period from the date hereof until the earlier of
(i) August 31, 2009 or (ii) the first to occur of:
(A) any representation or warranty made by Borrower herein is,
or becomes, untrue or misleading in any material respect; or
(B) a breach by Borrower of any of its obligations hereunder
or under the Loan Documents (except for the Breach).
2. Borrower’s
Acknowledgments . Borrower hereby acknowledges and agrees as
follows: (a) it is obligated to Wells Fargo pursuant to the
Loan Documents, (b) the Loan Documents are legal, valid and
binding obligations of Borrower enforceable in accordance with
their terms; (c) it has no defense, offset, claim or
counterclaim with respect to any of the Loan Documents or its
obligations thereunder; and (d) as a result of the Breach, an
Event of Default exists.
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3. Forbearance
.
3.1 So long as Borrower strictly and
punctually performs all of its obligations hereunder and under the
Loan Documents (subject only to the presence of the Breach) and
each representation or warranty of Borrower hereunder remains true
and correct in all respects, Wells Fargo shall forbear, during the
Interim Period, from exercising their remedies under the Loan
Documents with respect to Breach and, during the Interim Period,
shall advance credit thereunder as if the Breach had not
occurred.
3.2 This Agreement is not a waiver
by Wells Fargo of the Breach, any other existing Default or any
future Default and shall not prevent Wells Fargo from exercising
their right to pursue their remedies as a result of the Breach,
except during the Interim Period as provided in Section 3.1.
Wells Fargo’s failure to exercise any right, privilege or
remedy as a result of Borrower’s failure to perform or comply
with its obligations hereunder, the incorrectness or the falsity of
any representation or warranty of Borrower contained in this
Agreement or the occurrence after the date hereof of any further
Default shall not (i) prejudice or otherwise adversely affect
any Wells Fargo’s right at any time to exercise any right,
privilege or remedy available to it under the Loan Documents or
otherwise, (ii) be deemed to amend or alter any provision of
this Agreement or any of the Loan Documents or
(iii) constitute a course of dealing or other basis for
altering any of Borrower’s obligations or any of Wells
Fargo’s rights, privileges or remedies under any of the Loan
Documents or otherwise. Except as expressly set forth in this
Agreement, all of the provisions of the Loan Documents shall remain
in full force and effect.
4. Borrower’s
Representations and Warranties . Borrower hereby represents and warrants to Wells
Fargo that:
4.1 Borrower has all requisite
corporate power and authority to execute, deliver and carry out
this Agreement. Borrower has taken all corporate action necessary
to authorize the execution, delivery and performance of this
Agreement and has duly executed and delivered this Agreement. This
Agreement constitutes the valid and legally binding obligation of
Borrower enforceable against it in accordance with its
terms.
4.2 No Default exists or is
continuing under the Loan Documents, except the Breach.
4.3 No oral or
