Exhibit 10.1
OMNIBUS AMENDMENT AND
WAIVER
This Omnibus Amendment and Waiver (the
“Amendment”) dated as of October 31, 2008, by and
between STEN Corporation, a Minnesota corporation (“
STEN ”), STEN Credit Corporation, a Utah corporation
(“ STEN Credit ”), STENCOR, Inc., a Minnesota
corporation (“ STENCOR ”), STEN Financial
Corporation, a Utah corporation (“ STEN Financial
”), EasyDrive Cars and Credit Corp., an Arizona corporation
(“ EasyDrive ”), BTAC Properties, Inc., a
Minnesota corporation (“ BTAC ”), Alliance
Advance, Inc., an Arizona corporation (“ Alliance
”), STEN Acquisition Corporation, a Minnesota corporation
(“ STEN Acquisition ”), and Burger Time
Acquisition Corporation, a Minnesota corporation (“ BT
Acquisition ” and together with STEN, STEN Credit, STENCORP,
EasyDrive, BTAC, Alliance, STEN Acquisition, each a “
Company ” and collectively, the “
Companies ”) and LV ADMINISTRATIVE SERVICES, INC., as
administrative and collateral agent (the “ Agent
”) for
VALENS U.S. SPV I, LLC, a Delaware limited liability company
(“ Valens ”) and the lenders from time to time
party to the Security Agreement (as defined herein) (the “
Lenders ” together with the Valens and the Agent,
collectively, the “ Creditor Parties ” and each,
a “ Creditor Party ”), amends (i) that certain
Amended and Restated Secured Revolving Note, dated as of August 22,
2008, by the Company in favor of Valens (as amended, modified or
supplemented from time to time, the “ Note ”)
issued pursuant to the terms of the Security Agreement, dated as of
November 23, 2007, between the Company and the Creditor Parties (as
amended, modified or supplemented from time to time, the “
Security Agreement ” and, together with the Note and
the other Ancillary Agreements referred to in the Security
Agreement, the “ Documents ”) and (ii) the
Security Agreement. Capitalized terms used but not defined
herein shall have the meanings given them in the Security
Agreement.
PREAMBLE
WHEREAS , the Creditor Parties and the Companies desire to
amend the transactions contemplated by the Security
Agreement.
NOW, THEREFORE , in
consideration of the covenants, agreements and conditions
hereinafter set forth, and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1.
The Creditor Parties and the Companies
agree that Annex A to the Security Agreement is hereby amended by
deleting the definition of “Inventory Availability”,
appearing therein and inserting the following new definition in
lieu thereof:
“ Inventory Availability
” means the lesser of (a) the sum of (i) the
lesser of (A) fifty percent (50%) of the Kelley Blue Book
wholesale value of the Eligible Owned Inventory, or (B) cost,
plus (ii) fifty percent (50%) of the Kelley Blue Book
wholesale value of the Eligible Repossession Inventory, and (b) the
applicable Sublimit.
2.
The Creditor Parties and the Company
agree that Annex A to the Security Agreement is hereby amended by
inserting the following new definitions in the appropriate
alphabetical order:
“ Eligible Stencor Inventory
” means Inventory (that is not Eligible Inventory) owned
solely by Stencor which the Agent, in its sole and absolute
discretion, determines: (a) is subject to a first priority
perfected Lien in favor of the Agent and is subject to no other
Liens whatsoever (other than Permitted Liens); (b) is located on
premises with respect to which the Agent has received a landlord or
mortgagee waiver acceptable in form and substance to the Agent; (c)
is not in transit; (d) is in good condition and meets all standards
imposed by any governmental agency, or department or division
thereof having regulatory Governmental Authority over such
Inventory, its use or sale including the Federal Fair Labor
Standards Act of 1938 as amended, and all rules, regulations and
orders thereunder; (e) is currently either usable or salable in the
normal course of such Company’s business; (f) is not placed
by such Company on consignment or held by such Company on
consignment from another Person; (g) is in conformity with the
representations and warranties made by such Company to the Agent
with respect thereto; (h) is not subject to any Intellectual
Property licensing, with any third parties; (i) does not require
the consent of any Person for the completion of manufacture, sale
or other disposition of such Inventory by Company or any other
Person and such completion, manufacture or sale does not constitute
a breach or default under any contract or agreement to which such
Company is a party or to which such Inventory is or may be subject;
(j) is not work-in-process; (k) is covered by casualty insurance
acceptable to the Agent and under which the
