Exhibit 10.1


 


NINTH AMENDMENT

TO

LOAN AND SECURITY AGREEMENT


 


THIS NINTH AMENDMENT
to Loan and Security Agreement (this “Amendment”) is entered into this 30th day
of March, 2009, 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, that certain Seventh
Amendment to Loan and Security Agreement by and between Bank and Borrower dated
as of August 29, 2008 and that certain Eighth Amendment to Loan and Security
Agreement by and between Bank and Borrower dated as of September 30,
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 extend the maturity date.


 


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.                                      Amendment
to Loan Agreement.


 


2.1                               Schedule Section 9 (MATURITY DATE (Section 6.1)). 
The Maturity Date in Section 9 of the Schedule to the Loan
Agreement is amended in its entirety and replaced with the following:


 


“April 10, 2009”


 


3.                                      Limitation
of Amendment.


 


3.1                               The
amendment set forth in Section 2 is
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 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


 


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
(a) the due execution and delivery to Bank of this Amendment by each party
hereto, and (b) the due execution and delivery to Bank of an Amendment to
Security Agreement executed by XPLORE TECHNOLOGIES CORPORATION OF AMERICA.


 


[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:

  	
   

  	
  By:

  
	
  Name:

  	
   

  	
   

  	
  Name:

  	
   

  
	
  Title:

  	
   

  	
   

  	
  Title: