Exhibit 10.4


 


EXECUTION COPY


 


SALE AND ASSIGNMENT


 


THIS SALE AND ASSIGNMENT, dated as of October 29,
2010 (this “Agreement”), is entered into between FCC Investment Trust I
(the “Seller”) and 50-by-50 LLC (the “Buyer”).


 


WHEREAS, the Buyer desires to purchase from the Seller and
the Seller desires to sell to the Buyer a portfolio of receivables with, among
other things, certain related security and rights of payment thereunder.


 


NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound, agree as follows:


 


1.             Purchase and Sale of the Sale
Assets.  Upon the terms and subject
to the conditions of this Agreement, the Seller shall sell, transfer and
deliver to the Buyer, and the Buyer shall purchase from the Seller, the Sale
Assets (as defined below) for the Purchase Price (as defined below) in cash, on
the date hereof.


 


2.             Purchase Price.  With respect to the purchase of the Sale
Assets, the Buyer shall pay a purchase price on the date hereof equal to the
sum of $176,964.29 (the “Purchase Price”).  The Seller hereby acknowledges and agrees
that the Purchase Price represents a fair market purchase price for the Sale
Assets it is selling to the Buyer.  The
Seller hereby directs the Buyer to pay the Purchase Price to Fortress Credit
Co. LLC., as administrative agent under the Credit Agreement (as defined below)
for application on the date hereof to the Seller’s outstanding obligations
thereunder.  In addition, the Seller
hereby agrees that all collections of principal, interest or any other proceeds
received in respect of the Sale Assets after the date hereof shall be
transferred to the Buyer’s account no. 135291000 at U.S. Bank National
Association within two business days of receipt by the Seller.


 


3.             Designation of Receivables.  The Seller delivers herewith a computer file
containing a true and complete list of the receivables sold and assigned
hereunder, identified by (i) obligor name, (ii) original principal balance
(or “amount financed”) of the receivable, (iii) the principal balance of
the receivable as of October 29, 2010, (iv) contract number or other
identifying number, (v) the applicable contractor name, and
(vi) whether such receivable is related to a mortgage contract or a
non-mortgage contract.  Such computer
file shall be as of the date of this Agreement, incorporated into and made part
of this Agreement and is marked as Schedule I hereto.


 


4.             Receivables.  The Seller does hereby sell, transfer, assign,
set over and otherwise convey to the Buyer, and the Buyer hereby purchases and
takes from the Seller, all right, title and interest of the Seller in the
property identified in clauses (i) - (iii) below
whether constituting accounts, cash and currency, chattel paper, tangible
chattel paper, electronic chattel paper, copyrights, copyright licenses,
equipment, fixtures, contract rights, general intangibles, instruments,
certificates of deposit, certificated securities, uncertificated securities,
financial assets, securities entitlements, commercial tort claims, deposit
accounts, inventory, investment property, letter-of-credit rights, software,
supporting obligations, accessions, and other property 


 

















 


and
whether consisting of, arising out of, or related to any of the following,
property, whether now owned or existing or hereafter created, arising or
acquired and wherever located (collectively, the “Sale Assets”):


 


(i)            the receivables
identified by the Seller as of the date hereof which are listed on Schedule
I (the “Receivables”), together with all monies due or to become due
in payment under such Receivables on and after such date, including, but not
limited to, all collections thereon;


 


(ii)           all related
security with respect to the Receivables referred to in clause (i) above;
and


 


(iii)          all income and
proceeds of the foregoing.


 


5.             Notification of Account Debtors.  The Buyer shall bear the responsibility and
expense of notifying all account debtors of the Sale Assets of the sale hereof
from the Seller to the Buyer and any new payment instructions related thereto; provided that, if requested by the Buyer, the Seller agrees
to provide commercially reasonable cooperation with such efforts at the Buyer’s
expense.


 


6.             Representation and Warranties.  This Agreement is made without recourse but
on the terms and subject to the conditions set forth herein.  The Seller and the Buyer acknowledge and
agree that the Seller makes no representations, warranties and covenants with
respect to the Sale Assets and, upon payment of the Purchase Price by the
Buyer, the Seller shall have no further rights or obligations with respect to
the Sale Assets; provided that the Seller
represents and warrants that upon completion of the transactions to be effected
on the date hereof, the Buyer will acquire such title to the Sale Assets as the
Borrower had at the time that Drawbridge Special Opportunities Fund LP sold all
the equity interests in the Borrower to CLST Asset I, LLC, free and clear of
any liens created by the Borrower.


 


7.             Release
of Lien.  Fortress Credit Co. LLC, in
its capacity as administrative agent under that certain Credit Agreement, dated
as of November 10, 2008 (as amended, the “Credit Agreement”), by
and among the Seller, Fortress Credit Co. LLC, as the administrative agent (the
“Administrative Agent”), the lenders from time to time party thereto,
Lyon Financial Services, Inc. (d/b/a U.S. Bank Portfolio Services) and
U.S. Bank National Association, on behalf of the lenders and other secured
parties thereto, hereby relinquishes any and all right, title and interest it
may have in the Sale Assets set forth on Schedule I hereto and shall
execute such instruments of release in favor of the Seller with respect to the
Sale Assets being released from the lien of the Administrative Agent and
otherwise take such actions as are necessary or appropriate (including the
filing of UCC termination statements) to release the lien of the Administrative
Agent on the Sale Assets; provided that,
if such UCC termination statements have not been filed within five business
days from the date hereof, the Seller (and its agents and representatives) is
hereby authorized, without further act or deed, to file appropriate termination
statements with respect to the interests released hereby.


 


2

















 


8.             Entire
Agreement.  This Agreement contains
the entire agreement and understanding among the parties hereto with respect to
the subject matter hereof and supersedes all prior agreements and
understandings relating to such subject matter.


 


9.             GOVERNING LAW.  THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.


 


10.           Limitation of Liability.  It is expressly understood and agreed by the
parties hereto that (i) this Agreement is executed and delivered by U.S.
Bank Trust National Association, not individually or personally but solely as
trustee of the Seller, in the exercise of the powers and authority conferred
and vested in it, (ii) each of the representations, undertakings and
agreements herein made on the part of the Seller is made and intended not as a
personal representation, undertaking or agreement by U.S. Bank Trust National
Association but is made and intended for the purpose of binding only the
Seller, (iii) nothing herein contained shall be construed as creating any
liability on U.S. Bank Trust National Association, individually or personally,
to perform any covenant either expressed or implied contained herein, all such
liability, if any, being expressly waived by the parties hereto and by any
Person claiming by, through or under the parties hereto and (iv) under no
circumstances shall U.S. Bank Trust National Association be personally liable
for the payment of any indebtedness or expenses of the Seller or be liable for
the breach or failure of any obligation, representation, warranty or covenant
made or undertaken by the Seller under this Agreement or any other related
documents; provided, however, that U.S. Bank Trust National Association shall
remain personally liable for the breach or failure of the representations and
warranties made in its personal capacity in the applicable trust agreement for
the Seller.


 


[Remainder of Page Intentionally Left Blank]


 


3

















 


IN WITNESS WHEREOF, the parties hereto have
caused this Agreement to be executed by their respective duly authorized
officer as of the date first above written.


 


	
   

  	
  FCC
  INVESTMENT TRUST I,

  
	
   

  	
  as
  the Seller

  
	
   

  	
   

  
	
   

  	
  By:

  	
  U.S.
  Bank Trust National Association, not in its individual capacity but solely as
  statutory trustee

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Michael D. Bengston

  
	
   

  	
  Name:

  	
  Michael
  D. Bengston

  
	
   

  	
  Title:

  	
  Assistant
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  50-BY-50
  LLC,

  
	
   

  	
  as
  the Buyer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Constantine M. Dakolias

  
	
   

  	
  Name:

  	
  Constantine
  M. Dakolias

  
	
   

  	
  Title:

  	
  President

  



 

















 


	
  Acknowledged
  and Agreed:

  	
   

  
	
   

  	
   

  
	
  FORTRESS
  CREDIT CO. LLC, as

  	
   

  
	
  Administrative
  Agent under the Credit Agreement

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/
  Constantine M. Dakolias

  	
   

  
	
  Name:

  	
  Constantine
  M. Dakolias

  	
   

  
	
  Title:

  	
  President

  	
   

  



 
















 


Schedule I


 


See Attached


 


Note:
Redacted portions have been marked with *****. The redacted portions are
subject to a request for confidential treatment that has been filed with the
Securities and Exchange Commission.


 

















 


	
  Loan ID

  	
   

  	
  8/31 Curbal

  	
   

  	
  Obligor Name

  	
   

  	
  Original

  Balance

  	
   

  	
  Mortgage or Non-

  Mortgage Contract

  
	
  35021

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  SECURED

  
	
  25405

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  UNSECURED

  
	
  27460

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  SECURED

  
	
  27701

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  SECURED

  
	
  22886

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  SECURED

  
	
  41031

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  SECURED

  
	
  38879

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  SECURED

  
	
  42609

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  UNSECURED

  
	
  34719

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  SECURED

  
	
  40087

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  UNSECURED

  
	
  29477

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  SECURED

  
	
  13483

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  SECURED

  
	
  34577

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  UNSECURED

  
	
  42176

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  SECURED

  
	
  25054

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  SECURED

  
	
  43442

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  UNSECURED

  
	
  38683

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  UNSECURED

  
	
  42605

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  SECURED

  
	
  38890

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  SECURED

  
	
  35521

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  SECURED

  
	
  31367

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  SECURED

  
	
  34178

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  SECURED

  
	
  39817

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  UNSECURED

  
	
  42831

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  UNSECURED

  
	
  46876

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  UNSECURED

  
	
  20645

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  SECURED

  
	
  12848

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  SECURED

  
	
  44369

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  UNSECURED

  
	
  12677

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  SECURED

  
	
  39248

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  UNSECURED

  
	
  34716

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  UNSECURED

  
	
  33466

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  UNSECURED

  
	
  29279

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  UNSECURED

  
	
  44731

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  SECURED

  
	
  39237

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  SECURED

  
	
  12201

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  SECURED

  
	
  37988

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  UNSECURED

  



 


Note:
Redacted portions have been marked with *****. The redacted portions are subject
to a request for confidential treatment that has been filed with the Securities
and Exchange Commission.