Exhibit 10.1
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AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
This AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT (this "Agreement") dated
as of the Effective Date is between SILICON VALLEY BANK, a California
corporation ("Bank"), with its principal place of business at 3003 Tasman Drive,
Santa Clara, California 95054 (FAX (408) 654-1099) and XPLORE TECHNOLOGIES
CORPORATION OF AMERICA, a Delaware corporation ("Borrower"), with its principal
place of business at 14000 Summit Drive, Suite 900, Austin, Texas 78728 (FAX
(512) 336-7791), amends and restates the terms of that certain Loan and Security
Agreement by and between Bank and Borrower dated as of September 15, 2005, as
amended from time to time (the "Original Agreement"), and provides the terms on
which Bank shall lend to Borrower and Borrower shall repay Bank.
The parties
agree as follows:
1
ACCOUNTING AND OTHER TERMS
Accounting terms not defined in this Agreement shall be construed following
GAAP.
Calculations and determinations must be made following GAAP.
The term
"financial statements" includes the notes and schedules.
The terms "including"
and "includes" always mean "including (or includes) without limitation," in this
or any Loan Document.
Capitalized terms not otherwise defined in this Agreement
shall have the meanings set forth in Section 13.
All other terms contained in
this Agreement, unless otherwise indicated, shall have the meanings provided by
the Code, to the extent such terms are defined therein.
2
LOAN AND TERMS OF PAYMENT
2.1
PROMISE TO PAY.
BORROWER HEREBY UNCONDITIONALLY PROMISES TO PAY
BANK THE UNPAID PRINCIPAL AMOUNT OF ALL ADVANCES HEREUNDER WITH ALL INTEREST,
FEES AND FINANCE CHARGES DUE THEREON AS AND WHEN DUE IN ACCORDANCE WITH THIS
AGREEMENT.
2.1.1
FINANCING OF ACCOUNTS.
(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."
IN ADDITION, BORROWER MAY REQUEST
NON-FORMULA ADVANCES WITHOUT REGARDS TO ANY SPECIFIC ELIGIBLE ACCOUNT IN AN
AMOUNT NOT TO EXCEED THE NON-FORMULA AMOUNT AND THE BANK WILL PROVIDE SUCH
NON-FORMULA ADVANCES UP TO THE NON-FORMULA AMOUNT.
(B)
MAXIMUM ADVANCES.
THE AGGREGATE FACE AMOUNT OF ALL FINANCED
RECEIVABLES PLUS THE AMOUNT OF NON-FORMULA ADVANCES OUTSTANDING AT ANY TIME MAY
NOT EXCEED THE FACILITY AMOUNT.
THE AGGREGATE AMOUNT OF NON-FORMULA ADVANCES
OUTSTANDING AT ANY TIME MAY NOT EXCEED THE NON-FORMULA AMOUNT.
(C)
BORROWING PROCEDURE.
BORROWER WILL DELIVER AN INVOICE TRANSMITTAL
FOR EACH ELIGIBLE ACCOUNT IT OFFERS OR NON-FORMULA ADVANCE IT REQUESTS.
BANK
MAY RELY ON INFORMATION SET FORTH IN OR PROVIDED WITH THE INVOICE TRANSMITTAL.
(D)
CREDIT QUALITY; CONFIRMATIONS.
BANK MAY, AT ITS OPTION, CONDUCT A
CREDIT CHECK OF THE ACCOUNT DEBTOR