Exhibit 10.1
SEVENTH AMENDMENT
TO
LOAN AND SECURITY
AGREEMENT
THIS SEVENTH AMENDMENT to
Loan and Security Agreement (this “Amendment”) is
entered into this 29th day of August, 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, that certain Fourth
Amendment to Loan and Security Agreement by and between Bank and
Borrower dated as of March 28, 2008, that certain Fifth
Amendment to Loan and Security Agreement by and between Bank and
Borrower dated as of May 27, 2008 and that certain Sixth
Amendment to Loan and Security Agreement by and between Bank and
Borrower dated as of August 6, 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 (i) reset the
financial covenants, (ii) waive certain covenant violations,
and (iii) 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
Schedule Section 5
(FINANCIAL COVENANTS (Section 5.1) ) . The
paragraphs regarding Minimum Tangible Net Worth and Subordinated
Debt prior to the “Definitions” portion of
Section 5 of the Schedule to the Loan Agreement are hereby
amended and restated to read as follows:
“ Minimum Tangible Net
Worth . Borrower shall maintain a minimum Tangible Net
Worth of not less than Seven Hundred Fifty Thousand Dollars
($750,000) for the measuring periods ending August 31, 2008
and September 30, 2008. Thereafter, Borrower and Bank
agree to reset the minimum Tangible Net Worth covenant, effective
beginning with the measuring period ending October 31, 2008,
based on a final revised forecast to be delivered by Borrower to
Bank no later than October 5, 2008.
Subordinated Debt.
Borrower shall have received
(a) at least One Million Dollars ($1,000,000) in proceeds from
the issuance of Subordinated
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