Exhibit 10.1


 


SIXTH AMENDMENT

TO

LOAN AND SECURITY AGREEMENT


 


THIS SIXTH AMENDMENT
to Loan and Security Agreement (this “Amendment”) is entered into this sixth
day of August, 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, that certain
Fourth Amendment to Loan and Security Agreement by and between Bank and
Borrower dated as of March 28, 2008 and that certain Fifth Amendment to
Loan and Security Agreement by and between Bank and Borrower dated as of May 27,
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/Equity. 
Borrower shall have received at least Three Million Dollars ($3,000,000)
in proceeds from the issuance of Subordinated Debt or equity securities no
later than September 5, 2008.”


 


3.                                      Waiver.  Effective as of July 31, 2008, Bank
hereby waives Borrower’s defaults under Section 5 of the Schedule to the
Loan Agreement with respect to (i) the Tangible Net Worth requirement for
the measuring period ending June 30, 2008 and (ii) the requirement
that 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.


 


4.                                      Limitation
of Amendments.


 


4.1                               The
amendments set forth in Section 2
and the waiver set forth in Section 3,
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.


 


4.2                               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.


 


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


 


5.1                               Immediately
after giving effect to this Amendment and the waiver set forth herein (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;


 


5.2                               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;


 


2

















 


5.3                               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;


 


5.4                               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;


 


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


 


5.6                               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


 


5.7                               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.


 


6.                                      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.


 


7.                                      Effectiveness.  This Amendment shall be deemed effective as
of July 31, 2008 upon (i) the due execution and delivery to Bank of
this Amendment by each party hereto and (ii) the payment to Bank of a fee
in the amount of $3,500.


 


[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:

  	
  Relationship Manager

  	
   

  	
  Title:

  	
  Chief Financial Officer