Exhibit 10.6
FIRST AMENDMENT
TO
AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
THIS FIRST AMENDMENT to AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT (this
"Amendment") is entered into this 5th day of November, 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 AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT DATED AS OF
SEPTEMBER 11, 2009 (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) ELIMINATE THE AVAILABILITY OF NON-FORMULA ADVANCES 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
Section 2.1.1 (Financing of Accounts).
Section 2.1.1(a) is amended in its entirety and replaced with the following:
"(a)
Availability.
Subject to the terms of this
Agreement, Borrower may request that Bank finance specific Eligible Accounts.
Bank may, in its sole discretion in each instance, finance such Eligible
Accounts by extending credit to Borrower in an amount equal to the result of the
Advance Rate multiplied by the face amount of the Eligible Account (the
"Advance").
Bank may, in its sole discretion, change the percentage of the
Advance Rate for a particular Eligible Account on a case by case basis.
When
Bank makes an Advance, the Eligible Account becomes a "Financed Receivable.""
2.2
Section 2.1.1 (Financing of Accounts).
Section 2.1.1(b) is amended in its entirety and replaced with the following:
"(b)
Maximum Advances.
The aggregate face amount of
all Financed Receivables outstanding at any time may not exceed the Facility
Amount."
2.3
Section 2.1.1 (Financing of Accounts).
Section 2.1.1(c) is amended in its entirety and replaced with the following:
"(c)
Borrowing Procedure.
Borrower will deliver an
Invoice Transmittal for each Eligible Account it offers.
Bank may rely on
information set forth in or provided with the Invoice Transmittal."
2.4
Section 2.2.1 (Collections).
Section 2.2.1 is
amended in its entirety and replaced with the following:
"2.2.1
Collections.
Collections will be credited to the Financed
Receivable Balance for such Financed Receivable, but if there is an Event of
Default, Bank may apply Collections to the Obligations in any