AMENDMENT NO. 1 TO THE FOURTH AMENDED AND
RESTATED LOAN AND SECURITY
AGREEMENT
This
Amendment No. 1 to the Fourth Amended and Restated Loan and
Security Agreement (this “ Amendment ”) is made
as of June 15, 2009 (the “ Effective Date ”) by
and among (a) CARBIZ AUTO CREDIT, INC., a Florida corporation
(“ Carbiz Auto ”), CARBIZ AUTO CREDIT JV1, LLC,
a Florida limited liability company (“ Carbiz LLC
”), CARBIZ AUTO CREDIT AQ, INC., a Florida corporation
(“ Carbiz AQ ”), TEXAS AUTO CREDIT, INC., a
Florida corporation (“ Houston Auto ”); CARBIZ
AUTO CREDIT IN1, INC., a Florida corporation (“ Carbiz
IN1 ”), CARBIZ AUTO CREDIT IN2, INC., a Florida
corporation (“ Carbiz IN2 ”), CARBIZ AUTO CREDIT
IN3, INC., a Florida corporation (“ Carbiz IN3
”), CARBIZ AUTO CREDIT IN4, INC., a Florida corporation
(“ Carbiz IN4 ”), and CARBIZ AUTO CREDIT NE,
INC., a Florida corporation (“ Carbiz NE ”;
Carbiz NE, Carbiz IN1, Carbiz IN2, Carbiz IN3, Carbiz IN4, Houston
Auto, Carbiz Auto, Carbiz LLC and Carbiz AQ are sometimes referred
to herein individually as a “ Borrower ” and,
collectively, as the “ Borrowers ”), (b) CARBIZ
INC., an Ontario corporation (“ Carbiz Parent ”)
and CARBIZ USA INC., a Delaware corporation (“ Carbiz
USA ”), (Carbiz Parent and Carbiz USA are sometimes
referred to herein individually as “ Guarantor ”
and, collectively, as the “ Guarantors ” (as
defined below), and (c) DEALER SERVICES CORPORATION, a Delaware
corporation, as the lender (the “ Lender
”).
RECITALS
1. The
Borrowers, Guarantors and Lender have entered into that certain
Fourth Amended and Restated Loan and Security Agreement dated as of
February 25, 2009 (the “ Fourth Loan Agreement
”).
2. Carbiz
USA and Borrowers desire to enter into that certain Loan and
Security Agreement (the “ WFPC Loan Agreement ”)
with Wells Fargo Preferred Capital, Inc. (“ WFPC
”), pursuant to which WFPC will loan funds to the Borrowers
and Carbiz USA secured by all or substantially all of the
Borrower’s and Carbiz USA’s personal
property.
3. Contemporaneously
with the entry into the WFPC Loan Agreement, Borrowers, Guarantors
and Lender desire to amend the Fourth Loan Agreement to facilitate
the entry of the Borrowers and Carbiz USA into the WFPC Loan
Agreement and clarify the duties and obligations of the Borrowers
and Guarantors and Lender under the Fourth Loan
Agreement.
AGREEMENT
NOW,
THEREFORE, in consideration of the Recitals, and for other good and
valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties do hereby amend the Fourth Loan
Agreement as follows:
Section
1. Amendments . The Fourth Loan Agreement is hereby amended
as follows:
(a)
Section 1.1 of the Fourth Loan Agreement is hereby amended by
adding the following definitions immediately after the existing
definition for “Dollars” and immediately before the
existing definition for “ERISA”:
“ DSC Senior
Collateral . The term “ DSC Senior
Collateral” has the meaning assigned to that term in the
Intercreditor Agreement.”
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AMENDMENT NO. 1
TO THE FOURTH AMENDED AND RESTATED
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PAGE 1 of 4
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LOAN AND
SECURITY AGREEMENT
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(b)
Section 1.1 of the Fourth Loan Agreement is hereby amended by
adding the following definitions immediately after the existing
definition for “Indebtedness” and immediately before
the existing definition for “Items”
“ Intercreditor Agreement . The
term “ Intercreditor Agreement ” means that
certain Intercreditor Agreement dated as of June 15, 2009 among the
Borrowers, Carbiz USA and W
