EXHIBIT 10.36


 


FIRST AMENDMENT TO CREDIT
AGREEMENT,


SECURITY AGREEMENT,
AND WAIVER


 


THIS FIRST AMENDMENT TO CREDIT AGREEMENT, SECURITY
AGREEMENT, AND WAIVER (this “Amendment”),
dated as of November 29,
2004, entered into by and among the lenders identified on the signature pages
hereof (such lenders, together with their respective successors and permitted
assigns, are referred to hereinafter each individually as a “Lender” and
collectively as the “Lenders”), WELLS FARGO FOOTHILL, INC., a California
corporation (“WFF”), as the arranger and administrative agent for the
Lenders (in such capacity, together with its successors and assigns in such capacity,
“Agent”), and INFOCUS CORPORATION, an Oregon corporation (“Borrower”).


 


RECITALS


 


A.                                   Borrower
and WFF, in its capacity as Agent and a Lender, previously entered into that
certain Credit Agreement dated as of October 25,
2004 (the “Credit Agreement”), pursuant to which the Lenders have
made certain loans and financial accommodations available to Borrower.  Terms used herein without definition shall
have the meanings ascribed to them in the Credit Agreement.


 


B.                                     Borrower
and Agent (for the Lender Group and the Bank Product Provider) previously
entered into that certain Security Agreement dated as of October 25, 2004
(the “Security Agreement”), pursuant to which Borrower granted to Agent,
for the benefit of the Lender Group and the Bank Product Provider, a first
priority security interest in all of its Collateral, subject to the terms
thereof.


 


C.                                     Borrower
previously entered into that certain Credit Agreement, dated March 17,
2003 (as amended, supplemented, modified or waived from time to time,
collectively, the “WF Credit Agreement”), with Wells Fargo Bank,
National Association (“Wells Fargo”) pursuant to which Wells Fargo has
provided a letter of credit facility and made other financial accommodations
available to Borrower.


 


D.                                    Borrower
intends to enter into (i) a Security Agreement and an addendum thereto (the “WF
Security Agreement”), with Wells Fargo, pursuant to which Borrower will
grant a security interest to Wells Fargo pursuant to the terms thereof; (ii) a
Securities Account Control Agreement 
(the “WF Control Agreement”), with Wells Fargo and Wells Capital
Management as the securities intermediary; and (iii) those other documents
related to the WF Credit Agreement, the WF Control Agreement and the WF
Security Agreement (collectively, the “WF Credit Documents”).


 


E.                                      The
following Events of Default have occurred under the Credit Agreement
(collectively, the “Known Existing Defaults”):


 


(a)                                  Borrower
failed to timely deliver to Agent the list of Intellectual Property Licenses
(as such term is defined in the Security Agreement) to be attached as Schedule 2
of the Security Agreement, pursuant to Section 3.2(b)(ii) of the Credit
Agreement; and


 


(b)                                 Borrower
failed to timely deliver to Agent a Collateral Access Agreement with respect to
the location at UPS – SCS Logistics, 2200 Outer Loop Bldg., Louisville,
Kentucky 40219-3565, in form and substance satisfactory to Agent, pursuant to Section 3.2(b)(iii) of the Credit Agreement.


 


F.                                      Borrower has requested that Agent and the
Lender Group (i) waive the Known Existing Defaults, (ii) permit Borrower to
grant the WF Security Interest, and (iii) amend the Credit Agreement on
the terms and conditions set forth herein.


 


G.                                     Borrower
is entering into this Amendment with the understanding and agreement that,
except as specifically provided herein, none of Agent’s and Lender Group’s rights
or remedies as set forth in the Credit Agreement 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.                                       Amendments
to Credit Agreement.


 


(a)                                  The
following definitions shall be added to Schedule 1.1 of the Credit
Agreement:


 


 “‘WF Control Agreement’ means that
certain Securities Account Control Agreement entered into by and among the
Borrower, Wells Fargo and Wells Capital Management, as the securities
intermediary, with respect to Borrower’s Securities Account number 15256000 at
Wells Capital Management.


 


‘WF Credit
Agreement’ means that certain Credit Agreement, dated as of March 17,
2003, entered into by and between Borrower and Wells Fargo, as amended,
supplemented, waived or modified from time to time, in form and substance
satisfactory to Agent.


 


 ‘WF Credit Documents’ means,
collectively, the WF Credit Agreement, the WF Security Agreement, the WF
Control Agreement, and any other document related thereto, each in form and
substance satisfactory to Agent.


 


 ‘WF Security Agreement’ means that certain
security agreement and an addendum thereto entered into by and between Borrower
and Wells Fargo, as amended, supplemented, waived or modified from time to
time, in form and substance satisfactory to Agent.


 


‘WF Security
Interest’ means the security interest granted by the Borrower
to Wells Fargo pursuant to the terms of the WF Credit Documents.”


 


(b)                                 The
following shall be added to the definition of “Permitted Liens” as set forth in
Schedule 1.1 of the Credit Agreement:


 


“(m)                         the Lien in favor of Wells Fargo consisting of the WF
Security Interest.


 


2.                                       Amendments
to Security Agreement.


 


(a)                                  Sections
5(d) and 5(e) of the Security Agreement shall be amended and restated in their
entirety to read as follows:


 


“(d) This Agreement creates a valid security interest
in the Collateral of each of Grantors, to the extent a security interest
therein can be created under the Code, securing the payment of the Secured
Obligations.  All filings and other
actions necessary or desirable to perfect and protect the Security Interest in
the Perfected Collateral have been duly taken or will have been taken upon the
filing of financing statements listing each applicable Grantor, as a debtor,
and Agent, as secured party, in the jurisdictions listed next to such Grantor’s
name on Schedule 8 attached hereto. 
Upon the making of such filings, and subject to Permitted Liens, Agent
shall have a first priority perfected security interest in the Perfected
Collateral of each Grantor and shall have a first priority perfected security
interest in the other Collateral to the extent such security interest can be
perfected by the filing of a financing statement.”


 


“(e) (i) Except for the Security Interest created
hereby, each Grantor is and will at all times be the sole holder of record and
the legal and beneficial owner, free and clear of all Liens other than 


 


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Permitted Liens, of the Pledged Interests indicated on
Schedule 4 as being owned by such Grantor and, when acquired by
such Grantor, any Pledged Interests acquired after the Closing Date; (ii) all
of the Pledged Interests are duly authorized, validly issued, fully paid and
nonassessable and the Pledged Interests constitute or will constitute the
percentage of the issued and outstanding Equity Interests of the Pledged
Companies of such Grantor identified on Schedule 4 hereto as
supplemented or modified by any Pledged Interests Addendum or any Supplement to
this Agreement; (iii) such Grantor has the right and requisite authority to
pledge, the Investment Related Property pledged by such Grantor to Agent as
provided herein; (iv) all actions necessary or desirable to perfect, establish
the first priority of (subject to Permitted Liens), or otherwise protect, Agent’s
Liens in the Investment Related Property, and the proceeds thereof, have been
duly taken, (A) upon the execution and delivery of this Agreement; (B) upon the
taking of possession by Agent of any certificates constituting the Pledged
Interests, to the extent such Pledged Interests are represented by
certificates, together with undated powers endorsed in blank by the applicable
Grantor; (C) upon the filing of financing statements in the applicable
jurisdiction set forth on Schedule 8 attached hereto for such
Grantor with respect to the Pledged Interests of such Grantor that are not
represented by certificates, and (D) with respect to any Securities Accounts,
upon the delivery of Control Agreements with respect thereto; and (v) each
Grantor has delivered to and deposited with Agent (or, with respect to any
Pledged Interests created after the Closing Date, will deliver and deposit in
accordance with Sections 6(a) and 8 hereof) all certificates
representing the Pledged Interests owned by such Grantor to the extent such
Pledged Interests are represented by certificates, and undated powers endorsed
in blank with respect to such certificates.”


 


(b)                                 Section 8(b)
of the Security Agreement shall be amended and restated in its entirety to read
as follows:


 


“(b) With respect to any other Collateral, in the
event (1) the parties hereto agree that the steps necessary to perfect and
protect Agent’s security interest in such Collateral are reasonable or (2) a
Triggering Event shall have occurred, each Grantor agrees that, subject to Section 5.15
of the Credit Agreement, from time to time, at its own expense, such Grantor
will promptly execute and deliver all further instruments and documents, and
take all further action, that may be necessary or that Agent may request, in
order to perfect and protect any Security Interest granted or purported to be granted
hereby or to enable Agent to exercise and enforce its rights and remedies
hereunder with respect to any of the Collateral.”


 


(c)                                  Section 8(c)(2)
of the Security Agreement shall be amended and restated in its entirety to read
as follows:


 


“(c)(2) Each Grantor
authorizes Agent to file, transmit, or communicate, as applicable, financing
statements and amendments describing the Collateral as “all personal property
of debtor, except Excluded Collateral” or “all assets of debtor, except
Excluded Collateral” or words of similar effect, in order to perfect Agent’s
security interest in the Collateral (to the extent that Agent’s security
interest in such Collateral can be perfected by filing) without such Grantor’s
signature.  Each Grantor also hereby
ratifies its authorization for Agent to have filed in any jurisdiction any
financing statements filed prior to the date hereof.”


 


3.                                       Waiver of Known Existing Defaults.  The Lender
Group hereby waives enforcement of its rights against Borrower arising from the
Known Existing Defaults; provided, however, nothing herein shall be deemed a
waiver with respect to any other failure of Borrower to comply fully with Section 3.2(b)
of the Credit Agreement (as amended or modified by this Amendment).  This waiver shall be effective only for the
specific defaults comprising the Know Existing Defaults, and in no event shall
this waiver be deemed to be a waiver of enforcement of Lender Group’s  rights with respect to any other Defaults or
Events of Default now existing or hereafter arising.  Nothing contained in this Amendment nor any communications between Borrower and Lender Group or
Agent shall be a waiver of any rights or remedies Lender Group has or may have
against Borrower, except as specifically provided 


 


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herein.  Except as
specifically provided herein, Agent and Lender Group hereby reserve and
preserve all of their rights and remedies against Borrower under the Credit
Agreement and the other Loan Documents.


 


4.                                       Release; Covenant Not to Sue.


 


(a)                                  Borrower hereby absolutely and
unconditionally releases and forever discharges the Agent and the Lender Group,
and any and all participants, parent corporations, subsidiary corporations,
affiliated corporations, insurers, indemnitors, successors and assigns thereof,
together with all of the present and former directors, officers, agents and
employees of any of the foregoing (each a “Released Party”), from any
and all claims, demands or causes of action of any kind, nature or description,
whether arising in law or equity or upon contract or tort or under any state or
federal law or otherwise, which Borrower has had, now has or has made claim to
have against any such person for or by reason of any act, omission, matter,
cause or thing whatsoever arising from the beginning of time to and including
the date of this Amendment, whether such claims, demands and causes of action
are matured or unmatured or known or unknown. 
It is the intention of Borrower in providing this release that the same
shall be effective as a bar to each and every claim, demand and cause of action
specified, and in furtherance of this intention it waives and relinquishes all
rights and benefits under Section 1542 of the Civil Code of the State of
California, which provides:


 


“A general release does not extend to claims which
the creditor does not know or suspect to exist in his favor at the time of
executing the release, which if known by him might have materially affected his
settlement with the debtor.”


 


Borrower acknowledges that
it may hereafter discover facts different from or in addition to those now
known or believed to be true with respect to such claims, demands, or causes of
action and agree that this instrument shall be and remain effective in all
respects notwithstanding any such differences or additional facts.  Borrower understands, acknowledges and agrees
that the release set forth above may be pleaded as a full and complete defense
and may be used as a basis for an injunction against any action, suit or other
proceeding which may be instituted, prosecuted or attempted in breach of the
provisions of such release.


 


(b)                                 Borrower, on behalf of itself and its
successors, assigns, and other legal representatives, hereby absolutely,
unconditionally and irrevocably, covenants and agrees with and in favor of each
Released Party above that it will not sue (at law, in equity, in any regulatory
proceeding or otherwise) any Released Party on the basis of any claim released,
remised and discharged by Borrower pursuant to the above release.  If Borrower or any of its successors, assigns
or other legal representations violates the foregoing covenant, Borrower, for
itself and its successors, assigns and legal representatives, agrees to pay, in
addition to such other damages as any Released Party may sustain as a result of
such violation, all attorneys’ fees and costs incurred by such Released Party
as a result of such violation.


 


5.                                       Effectiveness
of this Amendment.  Agent must have
received the following items, in form and content acceptable to Agent, before
this Amendment, and the waivers
provided for herein, are effective.


 


(a)                                  Amendment; Acknowledgements and Releases.  This Amendment fully executed in a sufficient
number of counterparts for distribution to all parties.


 


(b)                                 Other
Required Documentation.  Within 10
Business Days of the date hereof, copy of the fully executed WF Credit
Documents, each in form and substance satisfactory to Agent, and all other
documents and legal matters in connection with the transactions contemplated by
this Amendment shall have been delivered or executed or recorded and shall be
in form and substance satisfactory.


 


6.                                       Representations
and Warranties.  Borrower represents
and warrants as follows:


 


(a)                                  Authority.  Borrower has the requisite corporate power
and authority to execute and deliver this Amendment, and to perform its
obligations hereunder and under the Loan Documents (as amended or modified
hereby) to which it is a party.  The
execution, delivery and performance by Borrower of this Amendment 


 


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have
been duly approved by all necessary corporate action and no other corporate
proceedings are necessary to consummate such transactions.


 


(b)                                 Enforceability.  This Amendment has been duly executed and
delivered by Borrower.  This Amendment and each Financing Agreement (as amended or modified
hereby) is the legal, valid and binding obligation of Borrower, enforceable
against Borrower in accordance with its terms, and is in full force and effect.


 


(c)                                  Representations
and Warranties.  The representations
and warranties contained in each Loan Document (other than any such
representations or warranties that, by their terms, are specifically made as of
a date other than the date hereof) are correct on and as of the date hereof as
though made on and as of the date hereof.


 


(d)                                 Due
Execution.  The execution, delivery
and performance of this Amendment are within the power of Borrower, have been
duly authorized by all necessary corporate action, have received all necessary
governmental approval, if any, and do not contravene any law or any contractual
restrictions binding on Borrower.


 


(e)                                  No
Default.  After giving effect to the waivers contained in this Amendment, no
event has occurred and is continuing that constitutes an Event of Default.


 


7.                                       Choice
of Law.  The validity of this
Amendment, its construction, interpretation and enforcement, the rights of the
parties hereunder, shall be determined under, governed by, and construed in
accordance with the internal laws of the State of New York governing
contracts only to be performed in that State.


 


8.                                       Counterparts.  This Amendment may be executed in any number
of counterparts and by different parties and separate counterparts, each of
which when so executed and delivered, shall be deemed an original, and all of
which, when taken together, shall constitute one and the same instrument.  Delivery of an executed counterpart of a
signature page to this Amendment by telefacsimile shall be effective as
delivery of a manually executed counterpart of this Amendment.


 


9.                                       Reference
to and Effect on the Loan Documents.


 


(a)                                  Upon
and after the effectiveness of this Amendment, each reference in the Credit
Agreement to “this Agreement”, “hereunder”, “hereof” or words of like import
referring to the Credit Agreement, and each reference in the other Loan
Documents to “the Credit Agreement”, “thereof” or words of like import
referring to the Credit Agreement, shall mean and be a reference to the Credit
Agreement as modified and amended hereby.


 


(b)                                 Except
as specifically amended above, the Credit Agreement and all other Loan Documents, are and shall continue to be in full force and
effect and are hereby in all respects ratified and confirmed and shall
constitute the legal, valid, binding and enforceable obligations of Borrower to
the Lender Group.


 


(c)                                  The
execution, delivery and effectiveness of this Amendment shall not, except as
expressly provided herein, operate as a waiver of any right, power or remedy of
the Agent  and Lender Group under any of
the Loan Documents, nor constitute a waiver of any provision of any of the Loan
Documents.


 


(d)                                 To
the extent that any terms and conditions in any of the Loan Documents shall
contradict or be in conflict with any terms or conditions of the Credit
Agreement, after giving effect to this Amendment, such terms and conditions are
hereby deemed modified or amended accordingly to reflect the terms and
conditions of the Credit Agreement as modified or amended hereby.


 


10.                                 Ratification. 
Borrower hereby restates, ratifies and reaffirms each and every term and
condition set forth in the Credit Agreement, as amended hereby, and the Loan
Documents effective as of the date hereof.


 


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11.                                 Estoppel.  To induce Agent and Lender Group to enter
into this Amendment and to continue to make advances to Borrower under the Credit
Agreement, Borrower hereby acknowledges and agrees that, as of the date hereof,
there exists no right of offset, defense, counterclaim or objection in favor of
Borrower as against any Lender with respect to the Obligations.


 


12.                                 Integration.  This Amendment, together with the other Loan
Documents, incorporates all negotiations of the parties hereto with respect to
the subject matter hereof and is the final expression and agreement of the
parties hereto with respect to the subject matter hereof.


 


13.                                 Severability.  In case any provision in this Amendment shall
be invalid, illegal or unenforceable, such provision shall be severable from
the remainder of this Amendment and the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.


 


14.                                 Submission of Amendment.  The
submission of this Amendment to the parties or their agents or attorneys for
review or signature does not constitute a commitment by Agent or Lender Group
to waive any of their rights and remedies under the Loan Documents, and this
Amendment shall have no binding force or effect until all of the conditions to
the effectiveness of this Amendment have been satisfied as set forth herein.


 


[Signature Page to
Follow]


 


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IN WITNESS WHEREOF, the
parties have entered into this Amendment as of the date first above written.


 


	
   

  	
  INFOCUS CORPORATION,

  
	
   

  	
  an Oregon corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WELLS FARGO
  FOOTHILL, INC.,

  
	
   

  	
  a California
  corporation, as Agent and a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
							



 


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