Exhibit 10.6
FIFTH
AMENDMENT
TO
LOAN AND SECURITY AGREEMENT
THIS FIFTH
AMENDMENT to Loan and Security Agreement (this
“Amendment”) is entered into this 27th day of May,
2008, 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 and that certain Fourth
Amendment to Loan and Security Agreement by and between Bank and
Borrower dated as of March 28, 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 make
certain 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
Schedule Section 5 (FINANCIAL COVENANTS (Section 5.1)
) . The paragraph regarding Subordinated Debt prior to
the “Definitions” portion of Section
5
of the Schedule to the Loan Agreement is hereby amended and
restated to read as follows:
“ Subordinated Debt. Borrower shall have
received at least Two Million Dollars ($2,000,000) in proceeds from
the issuance of Subordinated Debt or equity securities no later
than July 31, 2008.”
3.
Limitation of Amendments.
3.1
The amendments set forth in Section 2 , above, are
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