Exhibit 10.2


 


CORPORATE
GUARANTY AND SURETYSHIP


 


THIS
CORPORATE GUARANTY AND SURETYSHIP (“Guaranty”), made as of the date set forth
on the signature page hereof, is by and between  Xplore Technologies Corp., a
Delaware corporation   (the “Guarantor”) and DSCH CAPITAL PARTNERS,
LLC, a Texas limited liability company, d/b/a FAR WEST CAPITAL (“FWC”).


 


R E C I T A L
S:


 


WHEREAS, Xplore
Technologies Corporation of America (the “Company”) and FWC have entered  into an Accounts Receivable Purchasing Agreement of even
date hereof (as amended from time to time, the “Agreement”) pursuant to which
FWC will purchase certain accounts receivable billed to customers of the
Company (“Accounts Receivable”) on the basis of, and in reliance upon, the
representations, warranties and covenants of the Company contained in the
Agreement; and


 


WHEREAS, as a condition precedent to the
obligation of FWC to enter into the Agreement and to purchase Accounts
Receivable pursuant thereto, FWC requires that the Guarantor shall have entered
into this Guaranty, guaranteeing the performance by the Company of the
representations, warranties and covenants of the Company in the Agreement and
the payment and performance by the Company of its other obligations under the
Agreement.


 


NOW, THEREFORE, in order to induce FWC to enter
into the Agreement and to purchase Accounts Receivable pursuant thereto, and in
consideration thereof and for other valuable consideration, the receipt and
sufficiency of which is hereby acknowledged by the Guarantor, it is agreed as
follows:


 


W
I T N E S S E T H:


 


1.                                      Liabilities of Guarantor. 
The Guarantor hereby absolutely and unconditionally guarantees (a) the
accuracy and completeness of the Company’s representations and warranties in
the Agreement, and the prompt and complete performance by the Company of the
Company’s covenants and obligations in the Agreement, (b) the prompt and
complete payment and performance of all other discounts, expenses and
obligations of any nature that shall become due or owing to FWC by the Company
under the Agreement or pursuant to any modification or amendment thereof, and  (c) any  reasonable
costs or expenses incurred by FWC in enforcing any of the foregoing
(collectively, the “Obligations”).  This
Guaranty extends until all Obligations have been paid in full.  Payments to be made by the Guarantor
hereunder may be required by FWC on any number of occasions.


 


2.                                      Costs of Enforcement. 
The Guarantor shall pay to FWC forthwith upon demand, all reasonable
costs and expenses (including court costs and legal expenses) incurred or
expended by FWC in enforcing its rights under this Guaranty.


 


3.                                      Waiver of Right of Subrogation. 
Notwithstanding any payment or payments made by the Guarantor hereunder,
the Guarantor will not exercise any rights of FWC against the Company by way of
subrogation, reimbursement or indemnity, and shall have no right of 


 


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recourse to any assets or property of the
Company held for the payment and performance of its Obligations, until such
time as all Obligations have been satisfied and the Agreement has been
terminated.  If there is more than one
Guarantor, each Guarantor agrees not to seek contribution from any other
Guarantor until all the Obligations shall have been paid in full and the
Agreement has been terminated.  If any
amount shall nevertheless be paid to the Guarantor, in contravention  of this Section 3, such amount shall be held in trust
for the benefit of FWC and shall forthwith be paid to FWC to be credited and
applied to the Obligations, whether matured or not matured.  The provisions of this Section shall
survive termination of this Guaranty.


 


4.                                      Waiver.  The
Guarantor hereby assents, to the extent permitted by law, to all the terms and
conditions of the Obligations and waives: (a) notice of acceptance of this
Guaranty and all notice of the creation, extension or accrual of any
Obligations; (b) presentment, demand for payment, notice of dishonor and
protest; (c) any requirement of diligence or promptness on the part of FWC
in the enforcement of its rights under the provisions of the Agreement or any
related document; (d) any requirement that FWC take any action whatsoever
against the Company or any other party or file any claim in the event of the
bankruptcy of the Company; or (e) failure of FWC to protect, preserve, or
resort to any collateral.  The waivers
set forth in this Section shall be effective notwithstanding the fact that
the Company ceases to exist by reason of its liquidation, merger, consolidation
or otherwise.


 


5.                                      Consent.  The
Guarantor hereby consents that from time to time, and without further notice to
or consent of the Guarantor, FWC may take any or all of the following actions
without affecting the liability of the Guarantor: (a) extend, renew,
modify, compromise, settle or release the Obligations; (b) release or
compromise any liability of any party or parties with respect to the
Obligations; (c) release its security interest in the collateral or
exchange, surrender or otherwise deal with the collateral as FWC may determine;
or (d) exercise or refrain from exercising any right or remedy of FWC.


 


6.                                      Obligations of Guarantor Unconditional. 
The obligations of the Guarantor under this Guaranty shall be absolute
and unconditional, irrespective of the validity, regularity or enforceability
of any Obligation or any instrument or agreement evidencing the same or
relating thereto or any other circumstance that might otherwise constitute a
defense available to, or a discharge of, the Guarantor.  The obligations of the Guarantor hereunder
shall not be discharged except by complete payment or performance of the
Obligations and the liabilities of the Guarantor hereunder.


 


7.                                      Notices.  All
notices and other communications hereunder shall be deemed given when delivered
or deposited in the mails, and sent first class, certified mail with postage
prepaid, and if to a party hereto addressed as set forth beneath its name at
the foot hereof unless a party shall give notice of a different address in the
manner provided herein.


 


8.                                      Payment Due Date. 
The Guarantor will within five (5) days from date of notice from
FWC of the Company’s failure to pay any of the Obligations when due, pay to FWC
the amount due and unpaid by the Company. 
The failure of FWC to give notice shall not in any way release the
Guarantor hereunder.


 


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9.                                      Survival of Agreement. 
This Guaranty shall inure to the benefit of and be binding upon the
Guarantor and FWC and their respective heirs, successors and assigns, including
any subsequent holder or holders of any Obligations, and the term “FWC” shall
include any such holder or holders whenever the context permits.


 


10.                               Independent Obligation. 
FWC may proceed against the Guarantor under this Guaranty without first
proceeding against the Company, against any other surety or any other person or
any security held by FWC and without pursuing any other remedy.  It is expressly agreed that the liability of
the Guarantor for the payment of the Obligations secured hereby shall be
primary and not secondary.


 


11.                               Governing Law and Venue. 
THIS GUARANTY SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
LAWS OF THE STATE OF TEXAS.  For purposes
of any suit relating to this Guaranty, the Guarantor and FWC submit themselves
to the jurisdiction of any court sitting in the State of Texas and further
agree that venue in any suit arising out of this Guaranty shall be fixed in
Williamson County, Texas.  Final judgment
in any suit shall be conclusive and may be enforced in any jurisdiction within
or without the United States of America, by suit on the judgment, a certified
or exemplified copy of which shall be conclusive evidence of such liability.


 


12.                               Entire Agreement. 
This Guaranty represents the entire agreement between the parties with
respect to the subject matter contained herein, and may not be amended or
modified except by written instrument executed by the Guarantor and FWC.  This Guaranty supersedes and replaces any
prior agreement among the parties, oral or written with respect to the subject
matter hereof.  No representations,
whether oral or written, are being relied upon which are not expressly set
forth in this Guaranty or in the Agreement. 
The parties recognize that any oral representations and prior written
representations are “merged” into this Guaranty and the Agreement, and no
reliance can be placed thereon.


 


13.                               No Interest Paid in Excess of Permitted
Amounts.  Should a court of competent jurisdiction rule that
any consideration paid hereunder is in fact or in law to be treated as
interest, in no event shall the Guarantor be obligated to pay that interest at
a rate in excess of the maximum amount permitted by law, and all agreements,
conditions, or stipulations contained herein, if any, which may in any event or
contingency whatsoever operate to bind, obligate, or compel the Guarantor to
pay a rate of interest exceeding the maximum rate of interest permitted by law
shall be without binding force or effect at law or in equity to the extent only
of the excess of interest over such maximum rate of interest permitted by
law.  Also in such event, FWC may “spread”
all charges characterized as interest over the entire term of all transactions
with the Guarantor or the Company and will refund to the Company or the Guarantor
the excess of any payments made over the highest lawful rate.  It is the intention of the parties hereto
that in the construction and interpretation of this Guaranty, the foregoing
sentence shall be given precedence over any other agreement, condition, or
stipulation herein contained which is in conflict with same.


 


IN WITNESS WHEREOF, this Guaranty has been
executed as of the date first above written.


 


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  GUARANTOR:

  
	
   

  	
   

  
	
   

  	
  Xplore
  Technologies Corp.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:
  

  	
  /s/Michael
  J. Rapisand

  
	
   

  	
  Name:

  	
  Michael
  J. Rapisand

  
	
   

  	
  Title:

  	
  Chief
  Financial Officer

  
	
   

  	
  Date:

  	
  December 10,
  2009

  
	
   

  	
  Address:
  

  	
  14000
  Summit Drive, Suite 900

  
	
   

  	
   

  	
  Austin, TX 78728

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  FWC:

  	
   

  
	
   

  	
  DSCH
  Capital Partners, LLC, d/b/a Far West Capital

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/Brian
  Center

  
	
   

  	
  Name:
  

  	
  Brian
  Center

  
	
   

  	
  Title:
  

  	
  Chief
  Operating Officer

  
	
   

  	
  Date:
  

  	
  December 10,
  2009

  
	
   

  	
  Address:
  

  	
  715
  Discovery Blvd., Suite 214

  
	
   

  	
   

  	
  Cedar
  Park, TX 78613

  



 


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