Exhibit 10.6


 


FIFTH AMENDMENT

TO

LOAN AND SECURITY AGREEMENT


 


THIS FIFTH AMENDMENT
to Loan and Security Agreement (this “Amendment”) is entered into this 27th day
of May, 2008, by and between Silicon Valley Bank (“Bank”) and XPLORE
TECHNOLOGIES CORPORATION OF AMERICA, a Delaware corporation (“Borrower”) whose
address is 14000 Summit Drive, Suite 900, Austin, Texas 78728.


 


RECITALS


 


A.            Bank and Borrower have entered
into that certain Loan and Security Agreement dated as of September 15,
2005, as amended by that certain First Amendment to Loan and Security Agreement
by and between Bank and Borrower dated as of November 28, 2005, that
certain Letter amending Loan and Security Agreement by and between Bank and
Borrower dated as of March 30, 2006, that certain Second Amendment to Loan
and Security Agreement by and between Bank and Borrower dated as of May 15,
2006, that certain Third Amendment to Loan and Security Agreement by and
between Bank and Borrower dated as of February 28, 2007 and that certain
Fourth Amendment to Loan and Security Agreement by and between Bank and
Borrower dated as of March 28, 2008 (as the same may from time to time be
further amended, modified, supplemented or restated, the “Loan Agreement”).


 


B.            Bank has extended credit to
Borrower for the purposes permitted in the Loan Agreement.


 


C.            Borrower has requested that Bank
amend the Loan Agreement to make certain revisions to the Loan Agreement as
more fully set forth herein.


 


D.            Bank has agreed to so amend
certain provisions of the Loan Agreement, but only to the extent, in accordance
with the terms, subject to the conditions and in reliance upon the
representations and warranties set forth below.


 


AGREEMENT


 


NOW, THEREFORE, in
consideration of the foregoing recitals and other good and valuable
consideration, the receipt and adequacy of which is hereby acknowledged, and
intending to be legally bound, the parties hereto agree as follows:


 


1.             Definitions.  Capitalized terms used but not defined in
this Amendment shall have the meanings given to them in the Loan Agreement.


 


2.             Amendments to Loan
Agreement.


 


2.1          Schedule Section 5
(FINANCIAL COVENANTS (Section 5.1)).  The paragraph regarding Subordinated Debt prior
to the “Definitions” portion of Section 


 

















 


5 of the Schedule to the
Loan Agreement is hereby amended and restated to read as follows:


 


                “Subordinated Debt. 
Borrower shall have received at least Two Million Dollars ($2,000,000)
in proceeds from the issuance of Subordinated Debt or equity securities no
later than July 31, 2008.”


 


3.             Limitation of
Amendments.


 


3.1          The amendments set
forth in Section 2, above, are effective
for the purposes set forth herein and shall be limited precisely as written and
shall not be deemed to (a) be a consent to any amendment, waiver or
modification of any other term or condition of any Loan Document, or (b) otherwise
prejudice any right or remedy which Bank may now have or may have in the future
under or in connection with any Loan Document.


 


3.2          This Amendment shall
be construed in connection with and as part of the Loan Documents and all
terms, conditions, representations, warranties, covenants and agreements set
forth in the Loan Documents, except as herein amended, are hereby ratified and
confirmed and shall remain in full force and effect.


 


4.             Representations and
Warranties.  To induce Bank to enter
into this Amendment, Borrower hereby represents and warrants to Bank as
follows:


 


4.1          Immediately after
giving effect to this Amendment (a) the representations and warranties
contained in the Loan Documents are true, accurate and complete in all material
respects as of the date hereof (except to the extent such representations and
warranties relate to an earlier date, in which case they are true and correct
as of such date), and (b) no Event of Default has occurred and is
continuing;


 


4.2          Borrower has the
power and authority to execute and deliver this Amendment and to perform its
obligations under the Loan Agreement, as amended by this Amendment;


 


4.3          The organizational
documents of Borrower delivered to Bank herewith, remain true, accurate and
complete and have not been amended, supplemented or restated since August 8,
2007 and are and continue to be in full force and effect;


 


4.4          The execution and
delivery by Borrower of this Amendment and the performance by Borrower of its
obligations under the Loan Agreement, as amended by this Amendment, have been
duly authorized;


 


4.5          The execution and
delivery by Borrower of this Amendment and the performance by Borrower of its
obligations under the Loan Agreement, as amended by this Amendment, do not and
will not contravene (a) any law or regulation binding on or affecting
Borrower, (b) any contractual restriction with a Person binding on
Borrower, (c) any order, judgment or decree of any court or other
governmental or public body or 


 


2

















 


authority, or subdivision
thereof, binding on Borrower, or (d) the organizational documents of
Borrower;


 


4.6          The execution and
delivery by Borrower of this Amendment and the performance by Borrower of its
obligations under the Loan Agreement, as amended by this Amendment, do not
require any order, consent, approval, license, authorization or validation of,
or filing, recording or registration with, or exemption by any governmental or
public body or authority, or subdivision thereof, binding on either Borrower,
except as already has been obtained or made; and


 


4.7          This Amendment has
been duly executed and delivered by Borrower and is the binding obligation of
Borrower, enforceable against Borrower in accordance with its terms, except as
such enforceability may be limited by bankruptcy, insolvency, reorganization,
liquidation, moratorium or other similar laws of general application and
equitable principles relating to or affecting creditors’ rights.


 


5.             Counterparts.  This Amendment may be executed in any number
of counterparts and all of such counterparts taken together shall be deemed to
constitute one and the same instrument.


 


6.             Effectiveness.  This Amendment shall be deemed effective upon
the due execution and delivery to Bank of this Amendment by each party hereto.


 


[Signature page follows.]


 


3

















 


IN WITNESS WHEREOF,
the parties hereto have caused this Amendment to be duly executed and delivered
as of the date first written above.


 


	
  BANK  

  	
  BORROWER  

  
	
   

  	
   

  
	
  SILICON VALLEY BANK 

  	
  XPLORE TECHNOLOGIES 

  
	
   

  	
  CORPORATION OF AMERICA 

  
	
   

  	
   

  
	
   

  	
   

  
	
  By: /s/ Regina Perkins

  	
  By: /s/ Michael J. Rapisand

  
	
  Name:

  	
  Regina Perkins

  	
   

  	
  Name:

  	
  Michael J. Rapisand

  
	
  Title:

  	
  Relationships Manager

  	
   

  	
  Title:

  	
  Chief Financial Officer