EXHIBIT 10.1
OMNIBUS
AMENDMENT
This Omnibus Amendment dated August 22,
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 (“ Easy Drive ”), 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 Secured Revolving Note, dated as of November 23, 2007, 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 and
the Note.
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 the Companies shall issue to Valens an Amended and
Restated Secured Revolving Note that is attached and incorporated
herein as Exhibit A (the “Amended and Restated Secured
Revolving Note”) in substitution and not in satisfaction of
the Note.
2.
The Creditor Parties and the Companies
agree that Annex A to the Security Agreement is hereby amended by
deleting the definitions of “Accounts Availability”,
“Capital Availability Amount”, “Eligible
Accounts”, “Eligible Auto Loan Accounts”,
“Inventory Availability”, “Note”,
“Secured Revolving Note”, “Term” appearing
therein and inserting the following new definitions in lieu
thereof:
“ Accounts Availability
” means the sum of (a) sixty percent (60%) of the net face
amount of Eligible Auto Loan Accounts owned by STEN Credit on or
after August 22, 2008, plus (b) seventy-five percent (75%)
of the net face amount of Eligible Auto Loan Accounts owned by STEN
Credit prior to August 22, 2008, plus , (c) seventy-five
percent (75%) of the net face amount of Eligible Manufacturing
Accounts.
“ Capital Availability
Amount ” means $8,850,000.
“ Eligible Accounts ”
means, collectively, the Eligible Manufacturing Accounts and the
Eligible Auto Loan Accounts, and “ Eligible Account
” means any of them, individually.
“ Eligible Auto Loan
Accounts ” means each Account arising under the Easydrive
Auto Financing Documents of STEN Credit which conforms to the
following criteria: (a) STEN Credit is the sole owner of the
Account, and has not sold, assigned, mortgaged or hypothecated, nor
released from Agent’s security interest, all or any portion
thereof, nor is such Account subject to any Lien of any Person; (b)
such Account shall be valid and legally enforceable, owing to STEN
Credit in respect of the sale of motor vehicles by Easydrive in the
State of Arizona arising in the ordinary course of business, for
which STEN Credit has delivered to Agent (or to such Person as
Agent may designate) the Easydrive Auto Financing Documents and any
other documents evidencing the obligation to pay such Account; (c)
STEN Credit shall have a perfected, first priority security
interest in the underlying motor vehicle sold by Easydrive to such
Account Debtor, as determined by Agent; (d) the original Vehicle
Certificate in respect of the motor vehicle, the sale of which
created such Account is in Agent’s (or such Person as Agent
may designate) possession; (e) an original Chattel Paper Assignment
duly executed and delivered by STEN Credit in respect STEN
Credit’s perfected, first priority security interest in the
underlying motor vehicle sold by Easydrive, in form and substance
satisfactory to Agent is in Agent’s (or such Person as Agent
may designate) possession; (f) such Account shall not exceed one
hundred twenty-five percent (125%) of the Kelley Blue Book retail
value of the motor vehicle which secures the loan giving rise to
such Account, provided , however, the amount of any
Account for purposes determining Accounts Availability shall be
limited to eighty percent (80%) of the Kelley Blue Book wholesale
value of such motor vehicle; (g) such Account shall be net of any
unearned finance charges and not subject to any offsets, credits,
allowances, counterclaims or adjustments due the Account Debtor
except usual and customary prompt payment discounts, nor has the
Account Debtor returned the motor vehicle or indicated any dispute
or complaint concerning the motor vehicle, nor has the motor
vehicle been repossessed by Easydrive or STEN Credit; (h) STEN
Credit has not received any notice, nor has it any knowledge of any
facts, which adversely affect the credit of the Account Debtor; (i)
an original power of attorney (Arizona Department of Transportation
Motor Vehicle Division Power of Attorney (Form 48-1001)) and
assignment (each in form and substance acceptable to Agent) duly
executed by STEN Credit in favor of Agent, in each case relating to
such Account, are in the possession of Agent (or such Person as
Agent may designate); (j) the Account Debtors’ obligation to
pay such Account is unconditional, without any right of set-off or
counterclaim or any defense; (k) the Easydrive Auto Financing
Documents relating to such Account, have not been amended,
modified, terminated, altered or waived in any respect, unless
Agent shall have agreed thereto in writing; (l) the Account Debtor
has not been released by STEN Credit from the Account
Debtor’s obligations in respect of such Account; (m) STEN
Credit has duly performed all of its obligations required to be
performed by them under and in connection with such Account; (n)
Agent has not notified STEN Credit that either the Account or the
Account Debtor is not an Eligible Account; (o) at the time of the
creation of an Account or at any time following the creation of an
Account, the Account Debtor obligated on such Account is not
subject to a petition under the Bankruptcy Act or any similar
federal or state statute or a petition for receivership or
assignment for the benefit of creditors, unless if at any time
following the creation of such Account, Agent shall have received
evidence satisfactory to Agent that the Account Debtor’s
obligations with respect to such Account have been reaffirmed
pursuant to a valid and enforceable reaffirmation agreement, not
subject to recission, approved by the applicable bankruptcy court;
(p) such Account is not a Delinquent Account; (q) the motor vehicle
which secures such Account has installed in it, in the case of an
Account arising on or prior to the Closing Date, GPS or in the case
of an Account arising after the Closing Date, Advanced GPS; and (r)
such Account is otherwise satisfactory to the Agent as determined
by the Agent in the exercise of its sole discretion,
provided , however , that this clause (r) shall not
apply in the case of any determination made as to any Account on or
after the Specified Assignment Date.
“ Inventory Availability
” means the lesser of (a) the sum of (i) the lesser of
(A) fifty percent of the Kelley Blue Book wholesale value of the
Eligible Owned Inventory, or (B) cost, and (ii) fifty percent (50%)
of the Kelley Blue Book wholesale value of the Eligible
Repossession Inventory, and (b) One Million Dollars
($1,000,000).
“ Loans ” means
collectively, the Revolving Loans and the Term Loan.
“ Note ” means
collectively, the Secured Revolving Notes and the Secured Term
Note.
“ Secured Revolving Notes
” means that certain Amended and Restated Secured Revolving
Note dated as of August 22, 2008 made by the Companies in favor of
each Lender in the aggregate original face amount of $8,850,000.00,
and as the same may be further amended, supplemented, restated
and/or otherwise modified from time to time.
“ Term ” means the
Closing Date through August 22, 2011, subject to acceleration at
the option of the Agent, upon the occurrence of an Event of Default
hereunder or other termination hereunder.
3.
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:
“ Renewable Unsecured Notes
Percentage ” means the percentage obtained by dividing
(i) aggregate amount outstanding of Renewable Unsecured Notes that
have maturity dates or are due and payable prior to the end of the
Term, by (ii) the aggregate amount outstanding of Renewable
Unsecured Notes.
“ Secured Term Note ”
means that certain Secured Term Note date as of August 22, 2008
made by the Company in favor of the Lenders in the aggregate
original face amount of $1,500,000, as each may be amended,
supplemented, restated and/or otherwise modified from time to
time.
“ Term Loan ” means
that certain term loan evidenced by the Secured Term
Note.
4.
The Creditor Parties and the Companies
agree that Section 2(a) of the Security Agreement is hereby amended
by inserting the following new sub-section “(viii)” at
the end thereof:
“(viii) In the event the aggregate
principal amount outstanding of the Renewable Unsecured Notes (the
“Renewable Unsecured Notes Outstanding Amount”) as set
forth on each Reference Statement (as defined herein), commencing
with the Reference Statement to be provided on October 1, 2008, is
less than the Renewable Unsecured Notes Outstanding Amount, as set
forth on the prior month’s Reference Statement (each a
“Prior Month’s Reference Statement”), the
Lenders’ obligation to fund additional Revolving Loans in an
amount greater than the amount outstanding at the time of the
reporting, may be suspended at the Lender’s discretion until
such time that the Renewable Unsecured Notes Outstanding Amount, as
set forth on the Reference Statement following the Prior
Month’s Reference Statement (the last of such three
statements, the “Next Statement”), is greater than or
equal to the Renewable Unsecured Notes Amount set forth on the
Prior Month’s Reference Statement (the
“Condition”); provided , however , , at
the Lenders discretion the Lenders’ obligation to fund
additional Revolving Loans would each be limited to the lesser of
(i) the amount of additional Revolving Loans which, when aggregated
with Revolving Loans then outstanding, would not exceed the Formula
Amount and (ii) the amount of additional Revolving Loans which,
when aggregated with Revolving Loans then outstanding and the
amount by which the Renewable Unsecured Outstanding Amount on the
Next Statement exceeds the Renewable Unsecured Outstanding Amount
set forth on the Prior Month’s Reference Statement. This
Section 2(a)(viii) shall not apply during such thirty (30) day
“shelf” re-registration period of the Renewable
Unsecured Notes pursuant Rule 415 of the Securities
Act.”
5.
The Creditor Parties and the Companies
agree that Section 3 of the Security Agreement is hereby amended by
deleting
