Exhibit
10.23


 


FOURTH AMENDMENT TO LEASE
AGREEMENT


 


THIS
FOURTH AMENDMENT TO LEASE AGREEMENT (this “Amendment”) is entered on and to be
effective as of March 1, 2009, by and between BAILARD AUSTIN II, LIMITED
PARTNERSHIP, a Texas limited partnership, as lessor (“Lessor”), and XPLORE
TECHNOLOGIES CORP., a Delaware corporation, as lessee (“Lessee”).


 


R E C I T A L S


 


WHEREAS,
Sealy Summit Tech L.P. (“Original Lessor”), predecessor in interest to Lessor,
and Xplore Technologies Corp., a corporation formed under the laws of Canada (“Original  Lessee”), predecessor in interest to Lessee,
entered into that certain Lease Agreement dated April 10, 2003, as amended
by (a) that certain First Amendment to Lease dated as of May 18, 2003
(the “First Amendment”), by and between Original Lessor and Original Lessee; (b) that
certain Second Amendment of Lease dated as of May 26, 2004 (the “Second
Amendment”), by and between Original Lessor and Original Lessee; and (c) that
certain Third Amendment of Lease dated as of June 29, 2004 (the “Third
Amendment”), by and between Original Lessor and Original Lessee (as amended,
the “Lease”), pursuant to which Lessee leases from Lessor certain industrial
space known as Suite 900 (the “Leased Premises”) at 14000 Summit Drive,
Austin, Texas, in the building known as 14000 Summit (the “Building”); and


 


WHEREAS,
Lessee has requested to reduce the rent payable under the Lease for the
remainder of the current term of the Lease and to extend such term, and Lessor
and Lessee desire to set forth the terms and conditions upon which the Lease
will be modified and extended.


 


NOW,
THEREFORE, for good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, Lessor and Lessee hereby agree that the Lease
should be, and hereby is, amended as follows:


 


1.                                       Term of Lease.  The Term of the Lease (as defined in the
Lease) is hereby extended to August 31, 2014, and the term “Expiration
Date” (as defined in the Lease) shall be amended accordingly.  As used herein, the term “Extended Term”
shall mean the period from September 1, 2009 through August 31,
2014.  Notwithstanding anything to the
contrary contained in the Lease, Lessor and Lessee acknowledge and agree that
the Second Amendment extended the Term of the Lease through August 31,
2009.  Any references in the Second
Amendment or Third Amendment to “July 31, 2009” and “July 2009” were
meant to read “August 31, 2009” and “August 2009”, respectively.


 


2.                                       Base Rent.  Base Monthly Rent (as defined in the Lease)
shall be amended as follows:


 


1

















 


	
  Time Period

  	
   

  	
  Base Monthly Rent

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  March 1, 2009 through February 28, 2011

  	
   

  	
  $

  	
  10,621.73

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  March 1, 2011 through February 29, 2012

  	
   

  	
  $

  	
  13,656.51

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  March 1, 2012 through February 28, 2013

  	
   

  	
  $

  	
  14,306.82

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  March 1, 2013 through August 31,
  2014 

  	
   

  	
  $

  	
  14,740.36 

  	
   

  



 


3.                                       Exhibit A.  The site plan attached as Exhibit A
to the Lease is hereby deleted in its entirety, and the site plan attached as Exhibit A
to this Amendment shall be substituted therefor.


 


4.                                       Improvements to
Leased Premises.  Lessee
hereby accepts the Leased Premises for the Extended Term in its as-is
condition, and Lessor shall have no obligation to make any improvements thereto
in connection with this Amendment, except 
that Lessor shall complete those leasehold improvements (the “Leasehold
Improvements”) described in the estimate dated April 16, 2009, attached
hereto as Exhibit B (the “Approved Scope of Work”), which Approved
Scope of Work has been agreed to by Lessor and Lessee.  Lessor shall complete the Leasehold
Improvements by hiring a contractor to install or construct the Leasehold
Improvements in accordance with the Approved Scope of Work and by coordinating
such work with Lowell Christensen, Lessee’s Director of Operations.  Lessor agrees to use diligent good faith
efforts to complete the Leasehold Improvements on or before July 31, 2009,
so long as Lessee takes all steps necessary to prevent interference with Lessor’s
completion of the Leasehold Improvements. 
Any work (labor or materials) outside the scope of the Approved Scope of
Work shall be at Lessee’s sole cost and expense.


 


5.                                       Lessor’s
Address for Payments and Notices.


 


(a) 
Lessor’s address for the payment of rent, as set forth in Article 4.A.
of the Lease, is hereby amended to read as follows:


 


“Bailard
Austin II, Limited Partnership, DBA Sealy Summit Tech Center, Dept. 6304, Los
Angeles, CA 90084-6304”


 


(b) 
Lessor’s address for notices, as set forth in Article 32 of the
Lease, is hereby amended to read as follows:


 


“LESSOR:


 


Bailard
Austin II, Limited Partnership


c/o
RREEF Management Company


1406
Halsey Way, Suite 110


Carrollton,
TX 75007”


 


2

















 


The
additional address for copies of all notices to Lessor, as set forth in Section 2.02
of the First Amendment, is hereby deleted in its entirety.


 


6.                                       Lessee’s
Insurance.  Article 9
of the Lease is hereby deleted in its entirety, and the following is hereby
substituted therefor:


 


“9.  LESSEE’S INSURANCE


 


Lessee shall keep in force throughout the Term:  (a) a Commercial General Liability
insurance policy or policies to protect the Lessor Entities against any
liability to the public or to any invitee of Lessee or a Lessor Entity
incidental to the use of or resulting from any accident occurring in or upon
the Leased Premises with a limit of not less than $1,000,000 per occurrence and
not less than $2,000,000 in the annual aggregate, or such larger amount as
Lessor may prudently require from time to time, covering bodily injury and property
damage liability and $2,000,000 products/completed operations aggregate; (b) Business
Auto Liability covering non-owned and hired vehicles with a limit of not less
than $1,000,000 per accident; (c) Worker’s Compensation Insurance with
limits as required by statute with Employers Liability with limits of $100,000
each accident, $500,000 disease policy limit, $100,000 disease—each employee; (d) All
Risk or Special Form coverage protecting Lessee against loss of or damage
to Lessee’s alterations, additions, improvements, carpeting, floor coverings,
panelings, decorations, fixtures, inventory and other business personal
property situated in or about the Leased Premises to the full replacement value
of the property so insured; (e) Business Interruption Insurance with limit
of liability representing loss of at least approximately six (6) months of
income; and (f) Excess Liability in the amount of $6,000,000.


 


The aforesaid policies shall (a) be provided at Lessee’s expense; (b) name
the Lessor Entities as additional insureds (General Liability) and loss payee
(PropertyCSpecial Form); (c) be
issued by an insurance company with a minimum Best’s rating of ‘A-:VII’ during
the Term; and (d) provide that said insurance shall not be canceled unless
thirty (30) days prior written notice (ten days for non-payment of premium)
shall have been given to Lessor; a certificate of Liability insurance on ACORD Form 25
and a certificate of Property insurance on ACORD Form 28 shall be
delivered to Lessor by Lessee upon the Commencement Date and at least thirty
(30) days prior to each renewal of said insurance.


 


Whenever Lessee shall undertake any alterations, additions or
improvements in, to or about the Leased Premises (‘Work’) the aforesaid
insurance protection must extend to and include injuries to persons and damage
to property arising in connection with such Work, without limitation including
liability under any applicable structural work act, and such other insurance as
Lessor shall require; and the policies of or certificates evidencing such
insurance must be delivered to Lessor prior to the commencement of any such
Work.


 


3

















 


It is the intent of both parties to this Lease that all insurance,
primary and umbrella, purchased by Lessee in compliance with this Lease, will
be primary to any other insurance owned, secured, or in place by Lessor, which
insurance shall not be called upon by Lessee’s insurer to contribute in any
way.  Lessee shall secure endorsements to
this effect from all insurers of such policies.”


 


7.                                       Proportionate
Share.  Lessor and Lessee acknowledge
and agree that the term “Proportionate Share”, as defined in Article 30 of
the Lease, is hereby amended to mean 21.19%, calculated using the current total
rentable square footage of the Building of 102,284 square feet.


 


8.                                       Renewal Option.  Any and all renewal options presently set
forth in the Lease, including, without limitation, the renewal option set forth
in Exhibit F to the Lease, are hereby deleted in their entireties.


 


9.                                       Expansion
Options.  The expansion options set
forth in Exhibit G to the Lease and in Paragraph 9 and Exhibit “A” to
the Second Amendment are hereby deleted in their entireties.


 


10.                                 Parking.  Paragraph 8 of the Second Amendment is hereby
deleted in its entirety.  In lieu
thereof, Lessee and its employees, customers and other invitees shall have the
exclusive right to use, without separate charge through the expiration of the
Extended Term, one (1) parking space designated on the site plan attached hereto
as Exhibit C and incorporated herein by reference, subject to (i) all
reasonable rules and regulations promulgated by Lessor in its reasonable
discretion, and (ii) rights of ingress and egress of other tenants of the
Building.  Lessor shall not be responsible
for enforcing Lessee’s parking rights against any third parties or for marking
or otherwise designating in any way such space for Lessee’s exclusive use.  Lessee may, upon Lessor’s prior written
approval of Lessee’s plans and specifications therefor, mark or stripe that
space to which Lessee has exclusive rights.


 


11.                                 Ratification
and Assumption by Lessee. 
Lessee hereby represents and warrants to Lessor that Lessee is the
successor in interest to Original Lessee, and that Lessee has previously assumed
and agreed to pay and perform all of Original Lessee’s obligations under the
Lease.


 


12.                                 Financial
Statements and Credit Reports.  At Lessor’s request, Lessee shall deliver to
Lessor a copy, certified by an officer of Lessee as being a true and correct
copy, of Lessee’s most recent audited financial statement, or, if unaudited,
certified by Lessee’s chief financial officer as being true, complete and
correct in all material respects.  Lessee
hereby authorizes Lessor to obtain one or more credit reports on Lessee at any
time, and shall execute such further authorizations as Lessor may reasonably
require in order to obtain a credit report.


 


13.                                 Lessee’s
Authority.  If Lessee
signs as a corporation, partnership, trust or other legal entity, each of the persons
executing this Amendment on behalf of Lessee represents and warrants that
Lessee has been and is qualified to do business in the state in which the
Leased Premises are


 


4

















 


located,
that the entity has full right and authority to enter into this Amendment, and
that all persons signing on behalf of the entity were authorized to do so by
appropriate actions.


 


Lessee
hereby represents and warrants that neither Lessee, nor any persons or entities
holding any legal or beneficial interest whatsoever in Lessee, are (i) the
target of any sanctions program that is established by Executive Order of the
President or published by the Office of Foreign Assets Control, U.S. Department
of the Treasury (“OFAC”); (ii) designated by the President or OFAC
pursuant to the Trading with the Enemy Act, 50 U.S.C. App. §5, the
International Emergency Economic Powers Act, 50 U.S.C. §§ 1701-06, the Patriot
Act, Public Law 107-56, Executive Order 13224 (September 23, 2001) or any
Executive Order of the President issued pursuant to such statutes; or (iii) named
on the following list that is published by OFAC: “List of Specially Designated
Nationals and Blocked Persons.” If the foregoing representation is untrue at
any time during the Term, a Default (as defined in the Lease) will be deemed to
have occurred, without the necessity of notice to Lessee.


 


14.                                 Brokerage
Commissions.  Each of the
parties hereto represents and warrants to the other that it has not dealt with
any broker or finder in connection with this Amendment, except Stream Realty
Company and Jackson & Cooksey.


 


15.                                 Effectiveness.  Except as modified herein, all other terms
and conditions of the  Lease shall remain
unchanged and shall continue in full force and effect.  Lessee knows of no Default (or any event
which with notice and/or lapse of time could become a Default) by Lessor or
Lessee under the Lease as of the date of this Amendment.  All conditions and agreements under the Lease
to be satisfied or performed by Lessor have been satisfied and performed,
including, without limitation, all requirements with respect to any leasehold
improvements or allowances therefor, free rent, and any other payments or
economic incentives.


 


16.                                 Time and
Governing Law.  Time is of
the essence of this Amendment and all of its provisions.  The laws of the State of Texas and of the
United States of America shall govern the rights, remedies, and duties of the
parties hereto and the validity, construction, enforcement, and interpretation
hereof.


 


17.                                 Successors and
Assigns.  This Amendment shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns.


 


18.                                 Illegality.  If any provision of this Amendment is held to
be illegal, invalid, or unenforceable under present or future laws, such
provision shall be fully severable; this Amendment shall be construed and
enforced as if such illegal, invalid, or unenforceable provision had never
comprised a part hereof; and the remaining provisions hereof shall remain in
full force and effect and shall not be affected by the illegal, invalid, or
unenforceable provision or by its severance herefrom.


 


19.                                 Limited
Liability.  Redress for
any claim against Lessor under this Amendment or the Lease shall be limited to
and enforceable only against and to the extent of Lessor’s interest in the


 


5

















 


Building.  The obligations of Lessor under this
Amendment and the Lease are not intended to be and shall not be personally
binding on, nor shall any resort be had to the private properties of, any of
its or its investment manager’s trustees, directors, officers, partners,
beneficiaries, members, stockholders, employees, or agents, and in no case
shall Lessor be liable to Lessee hereunder for any lost profits, damage to
business, or any form of special, indirect or consequential damages.


 


IN
WITNESS WHEREOF, the parties hereto have executed this Amendment as of the day
and year first above written.


 


	
   

  	
  LESSOR:

  
	
   

  	
   

  
	
   

  	
  BAILARD
  AUSTIN II, LIMITED PARTNERSHIP, a Texas limited partnership

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Bailard
  Austin General Partner II, Inc., a Texas corporation, its general
  partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Joseph
  D. Akers, CCIM

  
	
   

  	
   

  	
  Title:

  	
  Vice
  President

  
	
   

  	
   

  	
  Date:

  	
                                             ,
  2009

  
	
   

  	
   

  	
   

  
	
   

  	
  LESSEE:

  
	
   

  	
   

  
	
   

  	
  XPLORE
  TECHNOLOGIES CORP., a Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
  Date:

  	
                                             ,
  2009

  



 


6

















 


EXHIBIT A - SPACE LOCATION


 


attached to and
made a part of Fourth Amendment to Lease Agreement


dated effective as
of March 1, 2009, between


Bailard Austin II,
Limited Partnership, a Texas limited partnership, as Lessor,


and Xplore
Technologies Corp., a Delaware corporation, as Lessee


 


14000 Summit Drive, Suite 900, Austin, Texas, containing
approximately 21,677 square feet


 


Exhibit A is
intended only to show the general location of the Leased Premises as of the
date of execution of the Fourth Amendment to Lease Agreement.  It does not in any way supersede any of
Lessor’s rights set forth with respect to arrangements and/or locations of
public parts of the Building and changes in such arrangements and/or
locations.  It is not to be scaled; any
measurements or distances shown should be taken as approximate.


 





 


 


	
   

  	
  Lessor

  	
  Lessee

  



 

















 


EXHIBIT B - APPROVED SCOPE OF WORK


 


attached to and
made a part of Fourth Amendment to Lease Agreement


dated effective as
of March 1, 2009, between


Bailard Austin II,
Limited Partnership, a Texas limited partnership, as Lessor,


and Xplore
Technologies Corp., a Delaware corporation, as Lessee


 


SEE ATTACHED ONE (1) PAGE


 


 


	
   

  	
  Lessor

  	
  Lessee

  



 

















 


	
  Construction Cost Breakd

  	
   

  	
  Xplore

  	
   

  	
  4/16/2009

  



 


	
  TRADE

  	
   

  	
   

  	
  NOTES

  	
   

  	
  I.E

  	
   

  	
  COST

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Electrical

  	
   

  	
  -

  	
  Un
  switch hi-bay lights - add (2) rows of 80’ long strip lighting. -
  Reswitch

  	
   

  	
  -

  	
   

  	
  $

  	
  8,500.00

  	
   

  
	
  HVAC

  	
   

  	
  -

  	
   

  	
   

  	
  -

  	
   

  	
   

  	
   

  
	
  Insulation

  	
   

  	
  -

  	
  Add
  Insualtion to (5) Roll-up doors

  	
   

  	
  -

  	
   

  	
  $

  	
  1,875.00

  	
   

  
	
  Painting

  	
   

  	
  -

  	
  Fix &
  Fill Grout lines in floor

  	
   

  	
  -

  	
   

  	
  $

  	
  350.00

  	
   

  
	
  Flooring

  	
   

  	
  -

  	
   

  	
   

  	
  -

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  -

  	
   

  	
   

  	
  -

  	
   

  	
   

  	
   

  
	
  Doors Frames & Hdwr.

  	
   

  	
  -

  	
  Add
  (4) new door sweeps

  	
   

  	
  -

  	
   

  	
  $

  	
  250.00

  	
   

  
	
  Drywall & Metal Std.

  	
   

  	
  -

  	
  Replace
  2 boxes of ceiling tile TO space.

  	
   

  	
  -

  	
   

  	
  $

  	
  225.00

  	
   

  
	
  Corner guards

  	
   

  	
  -

  	
  Install
  (2) Corner guards

  	
   

  	
  -

  	
   

  	
  $

  	
  200.00

  	
   

  
	
  Fencing

  	
   

  	
  -

  	
  Install
  owner supplied Fence

  	
   

  	
  -

  	
   

  	
  $

  	
  300.00

  	
   

  
	
  Parking Lot Sign

  	
   

  	
  -

  	
  Add
  Sign for President

  	
   

  	
  -

  	
   

  	
  $

  	
  400.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  -

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  -

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  -

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Cost to relamp High Bay lights
  witht new T-5 $300 each

  	
   

  	
  -

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  -

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  -

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  -

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  -

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  -

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  -

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  -

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  -

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  -

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  -

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  -

  	
   

  	
  $

  	
  250.00

  	
   

  
	
   

  	
   

  	
  0

  	
  Sub Total

  	
   

  	
  -

  	
   

  	
  $

  	
  12,350.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  GENERAL
  CONSTRUCTION COST

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  General
  Clean - Up

  	
   

  	
     Weeks

  	
  DAILY CLEAN - UP
  AND DUST CONTROL

  	
   

  	
  -

  	
   

  	
  $

  	
  0.00

  	
   

  
	
  Trash
  Dumpster

  	
   

  	
  0 Dumps

  	
  DUMPSTER -
  PERMITS - SPACE RENTAL

  	
   

  	
  -

  	
   

  	
  $

  	
  0.00

  	
   

  
	
  Supervision
  / Pro. Man.

  	
   

  	
     Weeks

  	
  ON SITE
  SUPERVISION - PROJECT MANAGER

  	
   

  	
  -

  	
   

  	
  $

  	
  750.00

  	
   

  
	
  Insurance

  	
   

  	
   

  	
  GENERAL
  LIABILITY & WORKERS COMP.

  	
   

  	
   

  	
   

  	
  $

  	
  61.75

  	
   

  
	
   

  	
   

  	
   

  	
  Sub Total

  	
   

  	
  -

  	
   

  	
  $

  	
  811.75

  	
   

  
	
   

  	
   

  	
   

  	
  Sub
  Total Cost 

  	
   

  	
  -

  	
   

  	
  $

  	
  13,161.75

  	
   

  
	
   

  	
   

  	
   

  	
  DCI
  Fee

  	
   

  	
  -

  	
   

  	
  7

  	
  %

  
	
   

  	
   

  	
   

  	
  Total
  Fee Amount 

  	
   

  	
  -

  	
   

  	
  $

  	
  985.82

  	
   

  
	
   

  	
   

  	
   

  	
  Subtotal

  	
   

  	
  -

  	
   

  	
  $

  	
  14,147.57

  	
   

  
	
   

  	
   

  	
   

  	
  8.25%
  Tax 

  	
   

  	
  -

  	
   

  	
  $

  	
  1,167.17

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Total Base Bid

  	
   

  	
  -

  	
   

  	
  $

  	
  15,314.74

  	
   

  



 


 


	
   

  	
  Landlord

  	
  Tenant

  



 

















 


EXHIBIT C - PARKING


 


attached to and
made a part of Fourth Amendment to Lease Agreement


dated effective as
of March 1, 2009, between


Bailard Austin II,
Limited Partnership, a Texas limited partnership, as Lessor,


and Xplore
Technologies Corp., a Delaware corporation, as Lessee


 





 


 


	
   

  	
  Lessor

  	
  Lessee