Exhibit 10.1


 


EIGHTH AMENDMENT

TO

LOAN AND SECURITY AGREEMENT


 


THIS EIGHTH AMENDMENT
to Loan and Security Agreement (this “Amendment”) is entered into this 30th day
of September, 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, that certain Fifth Amendment to Loan
and Security Agreement by and between Bank and Borrower dated as of May 27,
2008, that certain Sixth Amendment to Loan and Security Agreement by and
between Bank and Borrower dated as of August 6, 2008 and that certain
Seventh Amendment to Loan and Security Agreement by and between Bank and
Borrower dated as of August 29, 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 (i) reset certain financial covenants and (ii) make
certain other 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                               Cap
on Credit Extensions. 
Notwithstanding any other provision of the Loan Agreement, until such
time as Borrower has complied with the paragraph regarding Subordinated Debt
prior to the “Definitions” portion of Section 5 of the Schedule to the
Loan Agreement (as amended hereby) the aggregate amount of Credit Extensions
made to Borrower under the Loan Documents shall not exceed Four Million Five
Hundred Thousand Dollars ($4,500,000).


 


2.2                               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 (a) at least One Million Dollars
($1,000,000) in proceeds from the issuance of Subordinated Debt no later than September 5,
2008, and (b) at least Two Million Dollars ($2,000,000) (exclusive of the
One Million Dollars ($1,000,000) required in clause (a) above) in proceeds
from the issuance of Subordinated Debt no later than October 21, 2008.


 


3.                                      Limitation
of Amendments.


 


3.1                               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.


 


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;


 


2

















 


4.3                               The
organizational documents of Borrower delivered to Bank with the Sixth Amendment
to Loan and Security Agreement remain true, accurate and complete and have not
been amended, supplemented or restated 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 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
(a) the due execution and delivery to Bank of this Amendment by each party
hereto, and (b) Borrower’s payment of a fee in an amount equal to Ten
Thousand Dollars ($10,000).


 


[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/John A. Craig 

  	
   

  	
  By: 

  	
  /s/Michael J. Rapisand 

  
	
  Name: 

  	
  John A. Craig

  	
   

  	
  Name:  

  	
  Michael J. Rapisand

  
	
  Title:

  	
  Relationship Manager

  	
   

  	
  Title:

  	
  Chief Financial Officer