Exhibit 10.1


 


EXECUTION COPY


 


FIRST AMENDMENT TO

CREDIT AGREEMENT


 


THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this “Amendment”)
is executed as of October 29, 2010, by and among FCC
INVESTMENT TRUST I, a Delaware statutory trust (the “Borrower”),
FORTRESS CREDIT CO LLC, a Delaware
limited liability company (“Fortress”), in its capacity as the
administrative agent (the “Administrative Agent”), FORTRESS
CREDIT FUNDING I LP, as a Lender, FORTRESS
CREDIT FUNDING III LP, as a Lender, FORTRESS
CREDIT OPPORTUNITIES I L.P., as a Lender (collectively, the “Lenders”),
FCC FINANCE, LLC, a Delaware limited
liability company, as the servicer (the “Servicer”), U.S. BANK NATIONAL ASSOCIATION, as the collateral custodian
(the “Collateral Custodian”) and LYON FINANCIAL SERVICES, INC.
(d/b/a U.S. Bank Portfolio Services), as the backup servicer (the “Backup
Servicer”).  Capitalized terms used
but not defined herein have the meanings provided in the Credit Agreement
(defined below).


 


PRELIMINARY STATEMENTS


 


WHEREAS,
the parties hereto entered into that certain Credit Agreement, dated as of November 10,
2008 (as further amended, supplemented, modified or restated from time to time,
the “Credit Agreement”);


 


WHEREAS,
pursuant to Section 13.1 of the Credit Agreement, the Borrower, the
Servicer, the Administrative Agent and the Required Lenders and, to the extent
affected thereby, the Collateral Custodian and the Backup Servicer may amend
and supplement the provisions of the Credit Agreement; and


 


WHEREAS,
in connection with the termination of the Revolving Credit Agreement (as
defined herein) and the related sale and assignment of certain assets from CLST
Asset Trust II to the Borrower, the parties hereto desire to amend the Credit
Agreement in certain respects as provided herein.


 


NOW
THEREFORE, in consideration of the premises and the agreements contained
herein, the parties to this Amendment hereby agree to amend the Credit
Agreement as follows:


 


ARTICLE I


 


CONSENT AND WAIVER


 


Section 1.01.  Consent.


 


The Borrower hereby requests that the Administrative
Agent and each of the Lenders consent, and by signing below each of the
Administrative Agent and the Lenders do hereby consent, to the acquisition by
the Borrower from CLST Asset Trust II (“Trust II”) of the portfolio of
Receivables set forth on Schedule I to that certain Sale and Assignment, dated
as of August 31, 2010 (the “Sale and Assignment”) by and among the
Borrower, Trust II and the Revolving Agent (as defined below), and all related
security with respect to such Receivables.  


 

















 


In
order to facilitate such acquisition, the Lenders hereby agree to fund an
increase to the existing Loan to the Borrower in an amount equal to the
purchase price for such portfolio of Receivables as set forth in such Sale and
Assignment.  The proceeds of the
increased amount of such Loan shall be netted against and applied to the
aggregate “Loans Outstanding” (and interest thereon) attributable to Trust II
under that certain Second Amended and Restated Revolving Credit Agreement,
dated as of December 10, 2008 (the “Revolving Credit Agreement”),
by and among Trust II, Fortress Credit Corp., as the administrative agent (in
such capacity, the “Revolving Agent”), Fortress Credit Opportunities I
L.P., as the sole lender (the “Revolving Lender”), U.S. Bank National
Association and Lyon Financial Services, Inc. (d/b/a U.S. Bank Portfolio
Services).  This consent is a one—time
consent and shall not be construed to be a consent to any other acquisition of
Receivables by the Borrower after the date hereof.  Notwithstanding anything in the Revolving
Credit Agreement to the contrary, each of the Revolving Agent and the Revolving
Lender hereby waives any and all prepayment penalties and fees that might
otherwise accrue or become due pursuant to Section 2.3 of the Revolving
Credit Agreement in connection with the prepayment of the aggregate “Loans
Outstanding” (as defined in the Revolving Credit Agreement) attributable to
Trust II under the Revolving Credit Agreement.  Each of Trust II, the Revolving
Agent, the Revolving Lender, U.S. Bank National Association and Lyon Financial
Services, Inc. hereby acknowledge and agree that (i) upon payment in
full of the “Loans Outstanding”, interest thereon, and all other amounts
payable by Trust II under the Revolving Credit Agreement on the date hereof,
the Revolving Credit Agreement and all documents and agreements related thereto
shall be terminated and of no further force and effect, (ii) Trust II
shall have no further obligations under Section 11.1 or Section 13.9
of the Revolving Credit Agreement or in respect of any breaches of
representations or warranties notwithstanding the survival language in Section 13.6
of the Revolving Credit Agreement, and Sections 11.1 and 13.9 of the Revolving
Credit Agreement shall be automatically and finally terminated with respect to
Trust II and of no further force and effect, and all claims that any of the
undersigned may otherwise have directly or indirectly had thereunder or in
respect of any breach by Trust II of any representation or warranty shall be
automatically released, and (iii) the Revolving Agent shall, within five (5) days
following such payment, file termination statements with respect to all liens
outstanding against Trust II in connection with the Revolving Credit Agreement
(failing which, Trust II shall be automatically authorized without further act
or deed to file such termination statements). 
Furthermore, the undersigned hereby acknowledge that CLST Asset II, LLC
and U.S. Bank Trust National Association intend to cause Trust II to convert
into a Delaware limited liability company following Trust II’s payment of the “Aggregate
Unpaids” (as defined in the Revolving Credit Agreement), and hereby consent to
such conversion.


 


Section 1.02.  Waiver.


 


The Borrower hereby requests that the Administrative
Agent and each of the Lenders waive, and by signing below each of the
Administrative Agent and the Lenders do hereby waive, (i) the Event of
Default resulting from the breach of the three-month rolling average Annualized
Default Rate set forth in Section 10.1(o) of the Credit Agreement for
the September 2009 through and including the September 2010
Collection Periods, (ii) any Event of Default that occurred as a result of
any payments being made on behalf of an Obligor by any Person other than the
Obligor or any related guarantor prior to the execution date of this Amendment
and (iii) any other Event of Default that arose prior to the execution date of
this Amendment, including 


 


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those
not declared by the Administrative Agent.  This waiver is a one-time waiver
and shall not be construed to be a waiver as to any event or circumstance
occurring or existing after the date hereof. 
For avoidance of doubt, in connection with the Event of Default waivers
granted hereunder, the Administrative Agent and the Lenders hereby waive
accrual and collection of interest on the Outstanding Loan Balance at the
Default Rate for the period from September 1, 2010 through the execution
date hereof (and will instead accrue interest at the applicable non-default
rate for such period).


 


Section 1.03.  Servicer Acknowledgment.


 


The Servicer hereby acknowledges and agrees that,
from and after the date hereof, it shall service those Receivables acquired by
the Borrower pursuant to the Sale and Assignment in accordance with the terms
and conditions of the Credit Agreement.


 


Section 1.04.  Collateral Custodian
Acknowledgement.


 


The Collateral Custodian hereby acknowledges and
agrees that, from and after the date hereof, it shall hold all Required
Receivables Files related to those Receivables acquired by the Borrower
pursuant to the Sale and Assignment for the benefit of the Borrower and in
accordance with the terms and conditions of the Credit Agreement.


 


ARTICLE II


 


AGREEMENTS


 


Section 2.01.  Escrow Account.  Each of the Borrower, the
Administrative Agent and the Lenders hereby agree that the $834,991.40
currently on deposit in account #129306000 held at the Collateral Custodian
shall be transferred via wire transfer on the date hereof to an escrow account
(#144154000) to be held at the Collateral Custodian.  If on the date on which the last Receivable
of the Borrower has been collected or otherwise liquidated, there are insufficient
Available Funds to reduce the Aggregate Unpaids to zero, the Administrative
Agent shall apply the funds on deposit in the escrow account to the Lenders in
reduction of the Aggregate Unpaids. 
After the Aggregate Unpaids have been reduced to zero as set forth in
the preceding sentence or after the Aggregate Unpaids have otherwise been
reduced to zero by other means, all amounts remaining in the escrow account
shall be distributed to the Administrative Agent as a fee (as specified in
written directions to the Collateral Custodian at such time).  Unless and until the Aggregate Unpaids have
been reduced to zero, the Administrative Agent shall not direct the Collateral
Custodian, in its capacity as escrow agent of the escrow account, to disburse
any funds from the escrow account other than (i) escrow fees and expenses
which are due and payable to the escrow agent and (ii) amounts that will
be applied toward the Aggregate Unpaids as described above.  In no event shall the Borrower have access to
such escrowed funds.


 


Section 2.02.  Ineligible Receivables.  On the date hereof, the
Borrower shall sell and assign to Drawbridge Special Opportunities Fund LP (or
an affiliate thereof designated thereby), in accordance with the Purchase
Agreement, $176,964.29 (the “Repurchase Amount”) in Receivables that the
Administrative Agent and CLST have agreed were ineligible pursuant to the terms
of the Purchase Agreement (and which are identified on Schedule A hereto).  An amount equal to $162,892.21 of the
Repurchase Amount shall be distributed to the Borrower and 


 


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$14,072.08 of the Repurchase Amount shall be applied
to the Outstanding Loan Balance in respect of Receivable #34178.  The Borrower hereby acknowledges and agrees
that the Repurchase Amount is sufficient to satisfy all outstanding claims in
respect of the aforementioned ineligible Receivables and the Borrower shall
have no further claims regarding the eligibility of any Receivable purchased
under the Purchase Agreement.


 


Section 2.03.  Servicing Fee Credit.  Each of the Servicer, the Administrative
Agent and the Borrower hereby acknowledge and agree that an amount equal to
$72,000 in Servicing Fees charged and paid prior to August 31, 2010 was
mistakenly charged to the Borrower as a result of calculating such Servicing
Fees on the basis of all of the pledged Receivables owned by the Borrower as
opposed to only the Eligible Receivables owned by the Borrower.  Of the $72,000, an amount equal to $17,537.17
shall be distributed to the Borrower and the remaining balance of $54,462.83
shall be credited to the Borrower and applied by the Administrative Agent to
the Outstanding Loan Balance.


 


Section 2.04.  Amounts Due and
Application of Proceeds.  (a) Attached
as Annex A hereto are calculations of (i) the total amount of
Aggregate Unpaids under each of the Revolving Credit Agreement and the Credit
Agreement immediately prior to giving effect to this Amendment and the Sale and
Assignment (including, without limitation, line item amounts for outstanding
principal, accrued interest, attorneys’ fees, Servicing Fees, Backup Servicing
Fees and Collateral Custodian Fees), (ii) any credits for collections
received into any collection or lockbox accounts under each of the Revolving
Credit Agreement and the Credit Agreement from the period from August 31,
2010 through September 30, 2010, and the parties to whom such amounts are
credited, (iii) the application of the amounts being advanced by the
Lenders toward the purchase price being paid by the Borrower to Trust II under
the Sale and Assignment, and (iv) the Aggregate Unpaids under the Credit
Agreement after giving effect to the payments and applications of funds
described above (including, for the avoidance of doubt, after giving effect to
the Borrower’s purchase of the Receivables under the Sale and Assignment).  The Borrower, the Administrative Agent and
the Lenders hereby acknowledge and agree that, after giving effect to all of
the payments and applications of funds described above (including those amounts
to be distributed to the Borrower), the Aggregate Unpaids under the Credit
Agreement will be as reflected on Annex A, which amount includes an
Outstanding Loan Balance after giving effect to all of the payments and
applications of funds described above of $25,763,950.23.


 


(b)           The
parties hereto hereby acknowledge and agree that the advance rate applicable to
the Receivables acquired by the Borrower from Trust II is based on the “Maximum
Advance Rate” as set forth in the Credit Agreement and is unrelated to the
purchase price paid by the Borrower to Trust II under the Sale and Assignment.


 


Section 2.05.  Legal Fees.  The Administrative Agent acknowledges and
agrees that $4,877.50 shall be credited against the legal fees otherwise
payable by the Borrower in connection with the closing of this Amendment
(reflecting a credit for 9 hours of Chris Duerden time from Invoice 34118601
and 1 hour of J. Posternak time and 0.5 hour of Sean Scott time from Invoice
34160768), with the balance of the legal fees payable by Borrower in connection
with the closing of this Amendment to be paid on the first Payment Date
following the date hereof pursuant to Section 2.6 of the Credit Agreement.


 


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ARTICLE III


 


AMENDMENTS TO THE CREDIT
AGREEMENT


 


Section 3.01.  Amendments.


 


(a)           Section 1.1
of the Credit Agreement is hereby amended by deleting the definitions “Fair”
and “Fair Servicing Condition” in their entirety.  Further, any and all references in the Credit
Agreement to “Fair”, “Fair Servicing Condition” or “Fair Finance Company” are
hereby deemed to be deleted and otherwise null and void.


 


(b)           Section 1.1
of the Credit Agreement is hereby amended by adding the following new
definitions in their appropriate alphabetical order:


 


“CLST
Receivables”:  That certain portfolio
of Receivables purchased by the Borrower from CLST Asset Trust II with an
effective transfer date of August 31, 2010.”


 


“Maximum
Advance Rate”:  On any Measurement
Date, a percentage equal to 81.43995592% minus any 3%
reduction thereto upon satisfaction of the conditions under Section 2.9.


 


(c)           The
definition of “Change of Control” in Section 1.1 of the Credit Agreement
is hereby amended and restated in its entirety as follows:


 


“Change
of Control”: The failure of CLST to own, directly or indirectly, 100% of
the equity interests in the Borrower free and clear of any Lien (other than
Permitted Liens); provided that, CLST may sell all
or a portion of the equity interests in the Borrower to a third party in the
manner permitted by Section 13.18.


 


(d)           The
definition of “Credit and Collection Policy” in Section 1.1 of the Credit
Agreement is hereby amended and restated in its entirety as follows (and hereby
deemed to be put into the proper alphabetical ordering in Section 1.1); provided that any and all references to “Credit and
Collection Policy” in the Credit Agreement are hereby deemed to mean “Collection
Policy”:


 


“Collection
Policy”:  With respect to the initial
Servicer, the written collection policies and procedures manual of FCC Finance,
LLC set forth on Schedule V, as such collection policy may be amended or
supplemented from time to time in accordance with Section 5.3(f),
or, with respect to the Backup Servicer or any successor Servicer, the
customary collection policies and procedures of such successor Servicer.


 


(e)           The
definition of “Defaulted Receivable” in Section 1.1 of the Credit
Agreement is hereby amended and restated in its entirety as follows:


 


“Defaulted
Receivable”:  A Receivable as to
which any of the following has occurred: 
(a) all or any portion of a contractual payment due under such
Receivable is 121 or more days


 


5

















 


past
due, (b) the payment terms related to such Receivable have been
restructured or modified (other than (i) as permitted under Section 6.3
or Section 6.4(a) with the consent of the Administrative
Agent, in its sole discretion, or (ii) with the consent of both the
Borrower and the Administrative Agent, each in its respective sole discretion)
in any way due to credit reasons or for the purpose of preventing such
Receivable from becoming a Defaulted Receivable after the Closing Date, (c) a
charge-off has been taken with respect to such Receivable as a result of a
bankruptcy proceeding or otherwise, (d) the Servicer has reasonably
determined in accordance with the Collection Policy, the Servicing Standard or
otherwise that such Receivable is not collectible or (e) any of the
Borrower, the Servicer, any Affiliate thereof or any other Person affiliated,
under the employ or at the direction of the foregoing has made (directly or
indirectly) any principal, interest or other payments due on such Receivable on
behalf of the related Obligor to prevent such Receivable from becoming past due
or for any other reason.


 


(f)            The
definition of “Eligible Receivable” in Section 1.1 of the Credit Agreement
is hereby amended by adding the following new clause (v):


 


“(v) 
none of the Borrower, the Servicer, any Affiliate thereof or any other Person
affiliated, under the employ or the direction of the foregoing has made
(directly or indirectly) any principal, interest or other payments due on such
Receivable on behalf of the related Obligor to prevent such Receivable from
becoming past due or for any other reason.”


 


(g)           The
definition of “Facility Amount” in Section 1.1 of the Credit Agreement is
hereby amended and restated in its entirety as follows:


 


““Facility
Amount”:  $25,763,950.23.”


 


(h)           The
definition of “Interest Rate” in Section 1.1 of the Credit Agreement is
hereby amended and restated in its entirety as follows:


 


“Interest
Rate”:  A per annum
interest rate equal to the sum of the LIBOR Rate and 5.50%.”


 


(i)            The
definition of “Maximum Advance” in Section 1.1 of the Credit Agreement is
hereby amended and restated in its entirety as follows:


 


“Maximum
Advance”:  On any Measurement Date,
an amount equal to (i) the sum for each Eligible Receivable (including,
for the avoidance of doubt, each CLST Receivable that is an Eligible
Receivable) of the product of (a) the Maximum Advance Rate and (b) the
Outstanding Receivable Balance of such Receivable on such Measurement Date.


 


(j)            The
definition of “Servicing Fee” in Section 1.1 of the Credit Agreement is
hereby amended and restated in its entirety as follows:


 


“Servicing Fee”:  The servicing fee payable to the Servicer or
the successor Servicer on each Payment Date in arrears in respect of each
Collection Period, which fee shall be equal to (a) in the case of the
Backup Servicer if appointed as successor Servicer hereunder, the Successor
Servicer Administration Fee (as defined in the Backup Servicer Fee Letter) or (b) in
the case of any other Servicer, the product of (i) the Servicing Fee Rate,
(ii) the aggregate Outstanding 


 


6

















 


Receivable
Balance of all Receivables being serviced by the Servicer as of the first
Business Day of the related Collection Period and (iii) the actual number of
days in such Collection Period divided by 360.


 


(k)                                  Section 1.4
of the Credit Agreement is hereby amended by adding the following new clause
(h):


 


“(h)  reference to any threshold number in
respect of the breach of a delinquency or default trigger shall be on an
absolute basis (i.e., if the threshold number is 12% there shall be no
consideration given as to whether the breach of such number is minimal if the
number calculated is in excess of 12%; e.g., 12.0001% shall be considered a
breach of the trigger).”


 


(l)                                     Section 2.1(a) of
the Credit Agreement is hereby amended by replacing the amount “$34,891,977.97”
with the amount “$25,763,950.23”.


 


(m)                               Section 2.6(e) of
the Credit Agreement is hereby amended and restated in its entirety as follows:


 


(e)           to the Administrative Agent, for the
account of each applicable Lender in reduction of the Outstanding Loan Balance,
an amount equal to (i) the Required Reduction Amount, if any and (ii) if
any Event of Default under Section 10.1(n) or (o) has occurred and is
continuing, the three-month rolling average Annualized Default Rate exceeds
12.0% (or such greater percentage as may be in effect pursuant to Section 2.9)
for the related Collection Period or the three-month rolling average Delinquent
Accounts Ratio exceeds 11.0% (or such greater percentage as may be in effect
pursuant to Section 2.9) for the related Collection Period, all
remaining amounts;


 


(n)                                 Section 2.9
of the Credit Agreement is hereby amended and restated in its entirety as
follows:


 


“Section 2.9.  Trigger Buy-Up.


 


At
any time prior to the occurrence of an Event of Default (or after the waiver of
an Event of Default), the Borrower shall be entitled, at its option, to reduce
the Outstanding Loan Balance by making a payment thereon in an amount not less
than the difference between (a) the Outstanding Loan Balance prior to such
reduction minus (b) the Maximum Advance after
giving effect to a 3% reduction in the Maximum Advance Rate, in exchange for an
increase in the Annualized Default Rate triggers in Sections 2.6(e) and
10.1(o) to 13% and an increase in the Delinquent Accounts Ratio
triggers in Sections 2.6(e) and 10.1(n) to 12%; provided that (i) the Borrower shall give two (2) Business
Day’s prior written notice of such repayment of the Outstanding Loan Balance
and reduction of the Maximum Advance Rate to the Administrative Agent and (ii) such
notice shall specify the amount to be deposited into the Collection Account for
application to the reduction of the Outstanding Loan Balance.  For the avoidance of doubt, (x) the
Borrower must reduce the Outstanding Loan Balance by an amount sufficient such
that after giving effect thereto the Outstanding Loan Balance is less than the
Maximum Advance (after giving effect to the reduction in the Maximum Advance
Rate of 3%), (y) such reduction of the Outstanding Loan Balance shall be a
one-time action and may not occur in increments, and


 


7

















 


(z) such
increase in the Annualized Default Rate trigger and the Delinquent Accounts
Ratio trigger can only be achieved pursuant to this Section 2.9.”


 


(o)                                 Section 6.4(a) of
the Credit Agreement is hereby amended and restated in its entirety as follows:


 


“(a)                 Collection Efforts, Modification of Collateral.  The Servicer will use commercially reasonable
efforts to collect, or cause to be collected, all payments called for under the
terms and provisions of the Receivables included in the Collateral as and when
the same become due in accordance with the Collection Policy and the Servicing
Standard.  The Servicer may not waive,
modify or otherwise vary any provision of an item of Collateral without the
prior written consent of the Borrower, other than waivers, modifications and
other variances that are expressly permitted by the Collection Policy or this Section 6.4.”


 


(p)           Section 6.5
of the Credit Agreement is hereby amended and restated in its entirety as
follows:


 


“6.5                 Realization
Upon Defaulted Receivables.


 


(a)                                                          The Servicer
will use commercially reasonable efforts consistent with the Servicing Standard
and Applicable Law in realizing upon each Defaulted Receivable and Related
Security, and employ practices and procedures (including commercially
reasonable efforts) to enforce all obligations of Obligors (which may include
altering the payment and interest terms of any Defaulted Receivable with the
prior written approval of the Borrower). 
Without limiting the generality of the foregoing, the Servicer may (a) unless
the Administrative Agent has specifically given instruction to the contrary, (i) foreclose
upon any property securing the Defaulted Receivable and cause the sale of any
such property, or (ii) turn the Defaulted Receivable over to a collection
agency for collection, or (b) with the consent of the Borrower (other than
during the existence of any Event of Default), sell the Defaulted Receivable
for its fair market value (as determined by the Servicer in good faith) to an
independent third-party purchaser or alter the interest rate or other payment
terms of the Defaulted Receivable (whether or not in accordance with the
Collection Policy).  The Servicer will
remit to the Collection Account the Recoveries received in connection with the
sale or disposition of a Defaulted Receivable. 
In addition, the Borrower, with
the prior written consent of the Administrative Agent (which shall not be
unreasonably withheld), may retain a third party servicer that has been
approved in writing by the Administrative Agent to service all (but not less
than all) of the Defaulted Receivables owned by the Borrower in the event that
the Borrower determines that the Servicer is not servicing the Defaulted
Receivables in accordance with the Collection Policy or in a manner consistent
with the Servicing Standard; provided that (x) the
Servicer shall be reimbursed for any reasonable expenses incurred in such a
transition pursuant to Section 2.6(b) (such expenses to be limited
to the actual cost and expenses incurred by the Servicer, including the cost of
any internal employee utilized in connection with such transition (the cost of
such employee not to exceed $125 per hour)) and (y) any such retention of
a third party servicer shall be subject to 


 


8

















 


an agreement between the
Servicer, the Administrative Agent and CLST (or an Affiliate thereof) whereby
CLST (or an Affiliate thereof) shall agree to deposit into the Collection
Account an amount equal to the aggregate amounts distributed to the Servicer
pursuant to the foregoing clause (x) directly as a result of such
transition.


 


(b)                   Beginning on
September 20, 2010, the Servicer shall designate a specified employee
whose employment duties shall be restricted solely to the realization upon
Defaulted Receivables owned by the Borrower (e.g., the Servicer hereby
covenants and agrees that such employee shall not be engaged in the servicing
or collection practices for any Receivable not owned by the Borrower as of September 20,
2010).  The Borrower may from time to
time elect to discontinue the use of such a dedicated Servicer employee and/or
to thereafter elect to recommence such use, in either case by providing 30 days
prior written notice to the Servicer. 
The Borrower hereby agrees to reimburse the Servicer for the related
costs of such employee on a monthly basis (by the 15th day of the
following calendar month) as set forth on Schedule VI (as amended from
time to time with the consent of the Servicer, the Borrower and the
Administrative Agent), with such reimbursement to be paid by the Borrower out
of funds otherwise available to the Borrower (and not from Available Funds); provided that no reimbursement obligations with respect to
such an employee shall accrue from the date that is 30 calendar days following
the date of any discontinuance notice furnished by the Borrower to the Servicer
until such date, if any, as the Borrower elects to resume such arrangement and
a dedicated employee is again hired or otherwise assigned on a full-time basis
to the realization of Defaulted Receivables owned by the Borrower.  For avoidance of doubt, the Borrower shall
have no obligation whatsoever to provide benefits to such employee, and the
Borrower’s sole liability related to such employee shall be limited to
reimbursement of the Servicer of the amounts on Schedule VI.  In the event any such employee is terminated
or otherwise resigns from the employ of the Servicer, the Servicer shall use
commercially reasonable efforts to fill such position unless the Borrower
notifies the Servicer such position is no longer necessary.


 


(q)           Clause
(n) in Section 10.1 of the Credit Agreement is hereby amended and
restated in its entirety as follows:


 


“(n)                 the three-month rolling average Delinquent Accounts
Ratio shall exceed 11%, or such greater percentage as may be in effect pursuant
to Section 2.9, for (i) three consecutive months or (ii) any
four months in a twelve month period (in each case, beginning the measurements
with the January 2011 Reporting Date for the December 2010 Servicing
Report (thereby encompassing the October 2010, November 2010 and December 2010
Collection Periods); such that the first month in which the trigger could be
breached would be the March 2011 Reporting Date for the February 2011
Servicing Report); it is understood and agreed that if the trigger set forth
above would not be breached as of a subsequent Reporting Date, such Event of
Default shall be deemed cured and no longer continuing as of such subsequent
Reporting Date;  or”


 


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(r)            Clause
(o) in Section 10.1 of the Credit Agreement is hereby amended and
restated in its entirety as follows:


 


“(o)                 the three-month rolling average Annualized Default
Rate shall exceed 12%, or such greater percentage as may be in effect pursuant
to Section 2.9, for (i) three consecutive months or (ii) any
four months in a twelve month period (in each case, beginning the measurements
with the January 2011 Reporting Date for the December 2010 Servicing
Report (thereby encompassing the October 2010, November 2010 and December 2010
Collection Periods); such that the first month in which the trigger could be
breached would be the March 2011 Reporting Date for the February 2011
Servicing Report); it is understood and agreed that if the trigger set forth
above shall not be breached as of a subsequent Reporting Date, such Event of
Default shall be deemed cured and no longer continuing as of such subsequent
Reporting Date;  or”


 


(s)           A
new Section 13.18 is hereby added to the end of Article XIII of the
Credit Agreement to read as follows:


 


“Section 13.18.  Sale of Equity Interests.  With the consent of the Administrative Agent,
which consent shall not be unreasonably withheld, CLST may from time to time
sell or transfer all or a portion of the equity interests of the Borrower to a
third party.  For avoidance of doubt,
such a transaction shall not constitute or give rise to an Event of Default.  In connection with any closing of a sale of
equity interests, the Administrative Agent will provide a certification of
amounts outstanding under the Credit Agreement, and of the absence (or
existence, as the case may be) of Events of Default or circumstances which with
the passage of time would constitute an Event of Default.”


 


(t)            Schedule
V of the Credit Agreement is hereby amended in its entirety as set forth on Exhibit A
hereto.


 


(u)           The
Credit Agreement is hereby amended by adding a Schedule VI thereto as set forth
on Exhibit B hereto.


 


ARTICLE IV


 


MISCELLANEOUS


 


Section 4.01.  Conditions Precedent.  This Amendment shall become effective as of August 31,
2010 upon (i) receipt by the Administrative Agent of counterparts of this
Amendment (whether by facsimile or otherwise) executed by each of the other
parties hereto, (ii) receipt by the Administrative Agent of a replacement
Note in the amount of $25,763,950.23 executed by the Borrower (and the
substantially contemporaneous return by the Administrative Agent to the
Borrower of the original Note), (iii) receipt by the Administrative Agent
of the executed Sale and Assignment, (iv) receipt by the Borrower of
$180,429.38, which shall be distributed from the Collection Account to an
account specified by the Borrower to the Administrative Agent and the 


 


10

















 


Collateral Custodian, and (v) receipt by the
Administrative Agent of opinions in form and substance satisfactory to the
Administrative Agent.


 


Section 4.02.  Credit Agreement in Full Force and Effect as
Amended.  Except as specifically amended
hereby, all of the terms and conditions of the Credit Agreement shall remain in
full force and effect.  All references to
the Credit Agreement in any other document or instrument shall be deemed to
mean the Credit Agreement as amended by this Amendment.  This Amendment shall not constitute a
novation of the Credit Agreement, but shall constitute an amendment
thereof.  The parties hereto agree to be
bound by the terms and obligations of the Credit Agreement, as amended by this
Amendment, as though the terms and obligations of this Amendment were set forth
in the Credit Agreement.


 


Section 4.03.  Representations and
Warranties.  The Borrower
represents and warrants that immediately after giving effect to this Amendment (i) the
representations and warranties of the Borrower set forth in the Transaction
Documents are true and correct and (ii) no Event of Default or Unmatured
Event of Default has occurred and is continuing.  Each of CLST Financo, Inc., CLST Asset
I, LLC, CLST Asset II, LLC, CLST Asset Trust II and the Borrower represents and
warrants that immediately after giving effect to this Amendment it will be
Solvent.


 


Section 4.04.  Release.


 


(I)  As a material part of the consideration
for the Administrative Agent and Lenders entering into this Agreement, each of
CLST Asset I, LLC, CLST Holdings, Inc., CLST Financo, Inc., CLST
Asset II, LLC, CLST Asset Trust II, Robert Kaiser and the Borrower (the “CLST
Parties”) hereby agrees as follows (the “Fortress Release Provision”):


 


(a)           Release and Discharge. 
Each of the CLST Parties hereby releases and discharges Fortress Credit
Co LLC, Fortress Credit Corp., Drawbridge Special Opportunities Fund LP,
Fortress Credit Opportunities I, LP, Fortress Credit Funding I LP, Fortress
Credit Funding III LP, FCC Finance, LLC and their respective predecessors,
successors, assigns, officers, managers, directors, shareholders, members,
partners, employees, agents, attorneys, representatives, subsidiaries, and
affiliates (collectively, the “Fortress Released Parties”) from any and
all claims, counterclaims, demands, damages, debts, agreements, covenants,
suits, contracts, obligations, liabilities, offsets, rights, actions and causes
of action of any nature whatsoever, including, without limitation, all claims,
demands, and causes of action for contribution and indemnity, whether arising
at law or in equity, presently possessed, known or unknown, whether liability
therefor be direct or indirect, liquidated or unliquidated, presently accrued,
absolute or contingent, and whether or not heretofore asserted, which all or
any of the individual CLST Parties may have as of the execution date of this
Agreement against any Fortress Released Party arising under or related to the
Transaction Documents, the Revolving Credit Agreement (and any transaction
documents related thereto) or any other document or agreement between any
Fortress Released Party and any of the CLST Parties.


 


(b)           Representations and Warranties.  Each of the CLST Parties hereby represents
and warrants to each Fortress Released Party that it understands that the
Fortress Release Provision is a required condition to, and was a material
consideration in, the agreement of the Administrative Agent and the Lenders to
enter into this Amendment.


 


11
















 


(c)           Broadly Construed. 
Each of the CLST Parties hereby confirms that it is its express intent
that the release and discharge set forth in the Fortress Release Provision be
construed as broadly as possible in favor of the Fortress Released Parties so
as to foreclose forever the assertion by any of the CLST Parties of any claims
released hereby against the Fortress Released Parties.


 


(II)  As a
material part of the consideration for the Borrower (and the other CLST
Parties) entering into this Agreement, each of Fortress Credit Co LLC, Fortress
Credit Corp., Drawbridge Special Opportunities Fund LP, Fortress Credit
Opportunities I, LP, Fortress Credit Funding I LP, Fortress Credit Funding III
LP and FCC Finance, LLC (the “Fortress Parties”) hereby agrees as follows
(the “CLST Release Provision”):


 


(a)           Release and Discharge. 
Each of the Fortress Parties hereby releases and discharges CLST Asset
I, LLC, CLST Holdings, Inc., CLST Financo, Inc., CLST Asset II, LLC, CLST Asset
Trust II, Robert Kaiser, the Borrower and their respective predecessors,
successors, assigns, officers, managers, directors, shareholders, members,
partners, employees, agents, attorneys, representatives, subsidiaries, and
affiliates (collectively, the “CLST Released Parties”) from any and all
claims, counterclaims, demands, damages, debts, agreements, covenants, suits,
contracts, obligations, liabilities, offsets, rights, actions and causes of
action of any nature whatsoever, including, without limitation, all claims,
demands, and causes of action for contribution and indemnity, whether arising
at law or in equity, presently possessed, known or unknown, whether liability
therefor be direct or indirect, liquidated or unliquidated, presently accrued,
absolute or contingent, and whether or not heretofore asserted, which all or
any of the individual Fortress Parties may have as of the execution date of
this Agreement against any CLST Released Party arising under or related to the
Transaction Documents, the Revolving Credit Agreement (and any transaction
documents related thereto) or any other document or agreement between any CLST
Released Party and any of the Fortress Parties.


 


(b)           Representations and Warranties.  Each of the Fortress Parties hereby
represents and warrants to each CLST Released Party that it understands that
the CLST Release Provision is a required condition to, and was a material
consideration in, the agreement of the Borrower (and the other CLST Parties) to
enter into this Amendment.


 


(c)           Broadly Construed. 
Each of the Fortress Parties hereby confirms that it is its express
intent that the release and discharge set forth in the CLST Release Provision
be construed as broadly as possible in favor of the CLST Released Parties so as
to foreclose forever the assertion by any of the Fortress Parties of any claims
released hereby against the CLST Released Parties.


 


Section 4.05.  Prior Understandings.  This Amendment sets forth the entire
understanding of the parties relating to the subject matter hereof, and
supersedes all prior understandings and agreements, written or oral.


 


Section 4.06.  Counterparts.  This Amendment may be executed in any number
of counterparts and by separate parties hereto on separate counterparts, each
of which when executed shall be deemed an original, but all such counterparts
taken together shall constitute one and the same instrument.


 


12

















 


Section 4.07.  Governing Law.  This Amendment shall be governed by and
construed in accordance with the laws of the State of New York.


 


Section 4.08.  Limitation of Liability.  It is expressly understood and agreed by the
parties hereto that (i) this Amendment is executed and delivered by U.S. Bank
Trust National Association, not individually or personally but solely as trustee
of the Borrower, 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 Borrower 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
Borrower, (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 Borrower or be liable
for the breach or failure of any obligation, representation, warranty or
covenant made or undertaken by the Borrower under this Amendment 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 Trust
Agreement.


 


13

















 


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


 


 


	
   

  	
  FCC
  INVESTMENT TRUST I,

  
	
   

  	
  as
  the Borrower

  
	
   

  	
   

  
	
   

  	
  By:

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

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Michael D. Bengtson

  
	
   

  	
  Name:

  	
  Michael
  D. Bengtson

  
	
   

  	
  Title:

  	
  Assistant
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  FCC
  FINANCE, LLC,

  
	
   

  	
  as
  the Servicer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  James D. Borschow

  
	
   

  	
  Name:

  	
  James
  D. Borschow

  
	
   

  	
  Title:

  	
  President

  



 


S-1

















 


	
   

  	
  FORTRESS
  CREDIT CO LLC,

  
	
   

  	
  as
  the Administrative Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Constantine M. Dakolias

  
	
   

  	
  Name:

  	
  Constantine
  M. Dakolias

  
	
   

  	
  Title:

  	
  President

  



 


S-2

















 


	
   

  	
  FORTRESS
  CREDIT FUNDING I LP,

  
	
   

  	
  as
  a Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Fortress
  Credit Funding I GP, LLC,

  
	
   

  	
   

  	
  its
  general partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Constantine M. Dakolias

  
	
   

  	
  Name:

  	
  Constantine
  M. Dakolias

  
	
   

  	
  Title:

  	
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  FORTRESS
  CREDIT FUNDING III LP,

  
	
   

  	
  as
  a Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Fortress
  Credit Funding III GP, LLC,

  
	
   

  	
   

  	
  its
  general partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Constantine M. Dakolias

  
	
   

  	
  Name:

  	
  Constantine
  M. Dakolias

  
	
   

  	
  Title:

  	
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  FORTRESS
  CREDIT OPPORTUNITIES I L.P.,

  
	
   

  	
  as
  a Lender and as the sole Revolving Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Fortress
  Credit Funding I GP, LLC,

  
	
   

  	
   

  	
  its
  general partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Constantine M. Dakolias

  
	
   

  	
  Name:

  	
  Constantine
  M. Dakolias

  
	
   

  	
  Title:

  	
  President

  



 


S-3

















 


	
  U.S.
  BANK NATIONAL ASSOCIATION,

  	
   

  
	
  not
  in its individual capacity but solely as Collateral Custodian

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/
  Michael D. Bengtson

  	
   

  
	
   

  	
  Name:
   /s/ Michael D. Bengtson

  	
   

  
	
   

  	
  Title  Assistant Vice President

  	
   

  
	
   

  	
   

  
	
  LYON
  FINANCIAL SERVICES, INC.,

  	
   

  
	
  (d/b/a
  U.S. Bank Portfolio Services), not in its individual capacity but solely as
  Backup Servicer

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/
  Brad Winkelman

  	
   

  
	
   

  	
  Name:  Brad Winkelman

  	
   

  
	
   

  	
  Title  SVP

  	
   

  



 


S-4

















 


	
  Acknowledged
  and Agreed:

  	
   

  
	
   

  	
   

  
	
  CLST
  Asset I, LLC

  	
   

  
	
  By:
  CLST Financo, Inc., its sole member

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/
  Robert Kaiser

  	
   

  
	
   

  	
  Name:  Robert Kaiser

  	
   

  
	
   

  	
  Title:  President

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  CLST
  Asset II, LLC

  	
   

  
	
  By:  CLST Financo, Inc., its sole manager

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/
  Robert Kaiser

  	
   

  
	
   

  	
  Name:  Robert Kaiser

  	
   

  
	
   

  	
  Title:  President

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  CLST
  Asset Trust II

  	
   

  
	
   

  	
   

  
	
  By:  U.S. Bank Trust National Association, 

  	
   

  
	
  not
  in its individual capacity but solely as statutory trustee

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/
  Michael D. Bengtson

  	
   

  
	
   

  	
  Name:  Michael D. Bengtson

  	
   

  
	
   

  	
  Title:  Assistant Vice President

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  CLST
  Financo, Inc.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/
  Robert Kaiser

  	
   

  
	
   

  	
  Name:  Robert Kaiser

  	
   

  
	
   

  	
  Title:  President

  	
   

  



 


S-1

















 


	
  CLST Holdings,
  Inc.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/
  Robert Kaiser

  	
   

  
	
   

  	
  Name:  Robert Kaiser

  	
   

  
	
   

  	
  Title:  President

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  ROBERT
  KAISER

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/
  Robert Kaiser

  	
   

  



 


S-2

















 


	
  DRAWBRIDGE
  SPECIAL OPPORTUNITIES FUND LP

  	
   

  
	
   

  	
   

  
	
  By:

  	
  Drawbridge
  Special Opportunities GP LLC,

  	
   

  
	
   

  	
  its General Partner

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/
  Constantine M. Dakolias

  	
   

  
	
  Name:

  	
  Constantine
  M. Dakolias

  	
   

  
	
  Title:

  	
  President

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  FORTRESS
  CREDIT CORP.

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/
  Constantine M. Dakolias

  	
   

  
	
  Name:

  	
  Constantine
  M. Dakolias

  	
   

  
	
  Title:

  	
  President

  	
   

  



 


S-3

















 


Exhibit A


 


SCHEDULE V


to Credit Agreement


 


COLLECTION POLICY


 


[See attached]


 

















 


COLLECTIONS


 


POLICY - The FCC
Collection Department is responsible for the effective management of loan
receivables. Emphasis in this department is placed on “delinquency control”
while complying with all “Company” and “Fair Debt Collection” practices.
Individual conduct and the methodology used for training in this department
must maintain acceptable industry standards used by prudent lenders for
collecting delinquent accounts. It is the standard operating procedure of the
Company to comply with all state and federal laws while servicing and
collecting accounts. Compliance shall include but not be limited to Fair Debt
Collection Practices as they may be enforced, adopted or amended. The Company
will exercise “zero tolerance” for employee violations that may fall outside of
state and/or federal acceptable collection practices.


 


PROCEDURE — The
disciplines, rules and procedures implemented in this department must be
strictly followed for the company to maintain delinquency control.


 


1.     DELINQUENCY
CATEGORIES: Accounts are reported in one of five (5) specific
classifications.


 


·      0 to 30 days past the account scheduled
due date


 


·      31 to 60 days past the accounts scheduled
due date


 


·      61 to 90 days plus past the accounts
scheduled due date


 


·      91 to 120 days plus past the accounts
scheduled due date


 


·      121+ days plus past the accounts scheduled
due date


 


2.     REPORTS:
The following reports are utilized on a daily, weekly, monthly and as need
basis to assist the department in measuring individual performance, department
goals and/or specific areas of concern that directly impact delinquency
control.


 


·      Daily reporting includes Delinquency
Lists, 1st Payment Defaults, Individual Collector
Portfolio Assignments, Delinquency Comparison Reports, and individual collector
system generated call logs


 


·      Monthly reporting include Bankruptcy,
Charge-off and all Delinquency reports.


 


1

















 


PERSONNEL — The collection staff consists of Account
Representatives assigned to a specific portfolio of loans based upon individual
qualifications and ability, as determined by management based on our current
asset class. FCC’s objective is to maintain staffing sufficient to insure less
than 1000 accounts per Account Representative.


 


·      Training: The Collection Manager
provides training to Account Representatives, both on an individual and group
basis as warranted by department performance. The following publications,
exercises and management interaction are required beginning with new employee
orientation:


 


a)     Employee is given
FCC’s Employee Policy and Procedures Manual for company philosophy and
requirements.


 


b)     Employee is given
a copy of the Fair Debt Collection Practices Act and Employee Handbook. The
employee is required to execute an acknowledgment that these publications have
been received, reviewed and understood. Acknowledgments are retained in the
employee’s personnel file.


 


c)     The Collection
Manager tours the offices with the new employee to familiarize the employee
with each area, department and other personnel.


 


d)     Orientation
includes an initial meeting with management to discuss responsibilities and
expectations regarding performance. This meeting also provides an opportunity
to discuss any employee questions pertaining to company policy or procedures.


 


e)     Employee training
is given on the Collection System to insure documentation is captured
efficiently.


 


f)     Collectors use
staff meetings to share and discuss observations of collection efforts. These
meetings are scheduled and supervised by the Collection Manager.


 


g)    Phone Monitoring
is conducted by the Collection Managers to ensure the quality and performance
of each individual Account Representative.


 


·      Evaluation: Each Account
Representative is responsible for controlling delinquency in their assigned
portfolio. Evaluations are measured by performance ratios as compared to
company standards. The following is reviewed for each Account Representative
enabling management to evaluate individual efforts and improve department
efficiency:


 


2

















 


a)     Daily Call Report
(system generated)


 


b)     Periodic Review
of individual accounts


 


c)     Call monitoring


 


d)     Any other manual
or system generated reporting as the Collection Manager or management may deem
effective


 


·      Work Schedule: The Collection
Department Manager schedules times that are optimal for customer contact. As
standard in the industry, hours are staggered and typically include some
evening and Saturday scheduling. The Collection Manager determines the schedule
that is provided in advance each week.


 


COLLECTION PRACTICES & DISCIPLINES - The following procedures are required when collecting accounts.


 


·      Telephone Collections: This is the
primary method used for collecting past due accounts. Acceptable call hours are
from 8:00AM until 9:00PM within a specific calling area. Phone collection
activity can commence when the account becomes five (5) or more days past
due and continue until the delinquency is resolved.


 


a)     First attempt is
to make contact at residence.


 


b)     If unable to
reach customer(s) at residence, a call is placed to the debtor(s) place
of employment or other source of contact (unless notated differently, i.e. not
to call at place of employment).


 


c)     Collection calls
are made at various times of the day to insure maximum coverage.


 


d)     All collection
efforts must be documented on the Collection System. Once contact is made the
reason for delinquency should be documented in addition to verifying critical
data and obtaining payment or setting a promise date for payment.


 


·      Collection Guidelines: Delinquency
is worked by category 


 


0 to 30 Days Delinquent


 


a)     First late notice
(Section 16 Exhibit LLL) is system generated at 10 days delinquent on
all accounts.


 


b)     Second late
notice is system generated at 20 days delinquent on all accounts.


 


3

















 


c)     The Account
Representative will utilize previous pay history to determine the approach for
each account and determine if a specific method or type of contact has been
established to collect the account. If the account reflects previous
delinquency, then standard telephone collection procedures should be followed.
Efforts should continue daily until contact is made and the account has been
set for payment or delinquency has been resolved.


 


d)     At 30-days past
due, the Collection Manager reviews the account and determines if a customized
letter should be sent (Section 16 Exhibit MMM). The Collection
Manager during this review may provide further instruction to the Account
Representative in the comment screen to assist in collection efforts. Examples
of such instructions may include ordering the file, field call or skip tracing.


 


31-Day Plus Delinquent


 


a)     At 45 days past
due, the Collection Manager re-evaluates the account offering suggestions,
instruction and/to determine if legal action is recommended, in such cases
executive management then reviews the account for approval.


 


b)     Based on this
review and the Collection Manager documents any additional instruction for the
Account Representative to ensure every effort has been made to resolve the
delinquency.


 


·      Senior Lien Holder Contact: This
avenue should only be used in the event there is difficulty contacting the
customer(s) or to verify the status of the superior lien account. If the
senior lien holder is in the process of foreclosure, the account must be immediately
referred to the Collection Manager to determine the best course of action to
protect FCC’s security interest.


 


·      Skip Tracing: is used to establish
alternative methods of contact or to locate a customer(s) when no other
means of contact have been successful. The following are possible sources that
may be used to locate or contact the customer(s). The customer file and
Accurint (Accurate Report is an outside skip tracing system) (Section 16
Exhibit NNN) will be required to accomplish this task.


 


4

















 


a)     Credit Report —
obtain a current credit bureau report to search for any new creditors,
inquiries or other pertinent information.


 


b)     Internet — obtain
any public information listed on the internet that may assist locate a
customer.


 


c)     Relatives,
Friends and Co-Workers — may be used for new information and usually have the
most recent information regarding the customer(s). However, this method of
contact requires that NO DISCLOSURE be made as to the purpose of the inquiry.


 


·      Field Calls: FCC uses an out source
company for face to face contact with the customer(s). This service can be used
by completion of the order form example in (Section 16 Exhibit OOO).
Use of this service requires Collection Manager approval. If face to face
contact is made, they will put the customer(s) on the phone with the
Account Representative. If unable to make personal contact with customer(s),
they will fax and mail a report with observational information example in
(Section 16 Exhibit PPP).


 


·      Judgment: This is a legal remedy
available when a customer(s) refuse to make voluntary efforts to resolve
the delinquency. This action requires an attorney and must be approved by the
Collection Manager and the President. This legal method of collection may allow
garnishment of wages or other assets depending on State and Federal laws in
affect where the customer(s) reside.


 


·      Settlement: This is a method to
liquidate accounts that will otherwise continue to affect delinquency and
eventually become a charge off. Settlement can be used to recover charged off
accounts. This method of collection requires Executive Management approval and
is used when all other collection remedies have been exhausted (i.e. no equity
in FCC lien position, senior lien holder foreclosed, customer(s) declared
bankruptcy, etc.).


 


BANKRUPTCY - This is
the legal method used by customer(s) to liquidate or reorganize their
debts. Once notification of bankruptcy is received (either written or verbally)
all standard collection activity must cease. There are three stages in the
Bankruptcy process; Pre-Bankruptcy, Bankruptcy and Post-Bankruptcy:


 


1.             Pre-Bankruptcy:


Once FCC is notified that a
customer has retained an attorney for Bankruptcy, the account is placed in the
pre-bankruptcy queue and the following steps are taken:


 


5

















 


a)     The attorney is
immediately contacted to verify the upcoming bankruptcy filing and is made
aware of FCC being either a secured or unsecured creditor. Potential case
information is also obtained such as chapter, intentions regarding property if
secured, and the possibilities of a reaffirmation.


b)     The account is
constantly monitored. Attorneys are called on a weekly or bi-weekly basis to
obtain case information.


c)     Pacer is
monitored closely for case information.


d)     Once a bankruptcy
case has been filed and obtained, the account then goes into the second stage
of the Bankruptcy process.


 


2.             Bankruptcy:
The accounts are segregated by Chapters 7 or 13, all  notifications and documents are then forwarded to the
attorney for appropriate action.


 


a)     Chapter 13
(Secured)


 


1.     All written
notifications are sent to attorney


2.     Proof of claim
and loan documents are forwarded to attorney for proper filing


3.     Plan is then
reviewed for appropriate filing of secured claim for FCC under the plan


4.     Accounts are
monitored for payments


5.     Trustees are
contacted for payments being made through the plan


6.     Debtor’s
attorneys are contacted for payments being made directly by debtor or payments
in arrears post petition


7.     When permitted by
the debtor’s attorneys, customers are contacted for payments in arrears


8.     Payment reminders
are sent to attorneys


9.     If the FCC is to
be paid directly by the trustee, the loan is monitored to ensure monthly
payment is being sent by trustee, if payments are missed Trustee is contacted
for resolution


 


b)     Chapter 13
(Unsecured)


 


1.     All written
notifications are sent to attorney


2.     Proof of claim
and loan documents are forwarded to attorney for proper filing


3.     Plan is then
reviewed for appropriate filing of unsecured priority claim for FCC under the
plan


4.     Trustees are
contacted for payments being made through the plan for unsecured debt


 


6

















 


c)     Chapter 7


 


Two Types of Disposition:


 


·      Reaffirmation: debtor intends to retain
possession of their home and continue making the regular monthly payment
according to the terms of the contract. Whenever possible, have the debtor and
their attorney execute a Re-Affirmation Agreement for filing with the court.
Monitor for all payments according to the servicing system due dates.


·      Surrender: debtor no longer wishes to keep
their home. Typically, the debtor surrenders their home to the mortgage lien
holders.


 


3.             Post
Bankruptcy


 


a)     Dismissal


 


·      Once the bankruptcy is dismissed, contact
attorney and trustee for confirmation of dismissal and continue collection of
the account.


 


b)     Discharged


 


·      Under a chapter 7 with reaffirmation,
continue normal collection of the account.


·      Under a chapter 7 without reaffirmation:


·      Secured:
lien remains in place and debtor is to continue payments as long as they intend
to keep property


·      Unsecured:
Collection efforts must cease as debt has been discharged.


 


CHARGEOFF:


 


Purpose: The purpose for charging accounts to “profit
and loss” is to segregate non-performing loans in order to obtain accurate
delinquency and to determine loan losses.


 


·        Account must be 121-days or more past
due or declared currently uncollectible prior to 120 day delinquency.


·        Each Account is worked for recovery
through collecting and legal channels.


 


7






 












 


Exhibit B


 


SCHEDULE VI


to Credit Agreement


 


Employee Compensation
Reimbursement


 


Hourly Rate: $16.00


Monthly Wages: not to exceed $2,560.00


Federal Medicare/EE Tax: $340.50/month


WC: $13.57/month


Health/Dental Insurance Coverage: $330.00/month


Phone Invoice: not to exceed $43.36/month


 


Total Monthly Costs subject to reimbursement by the Borrower shall not
exceed $3,287.43.


 
















 


Annex
A


 


	
  Servicing Report - FCC Investment
  Trust

  	
   

  	
  Collection
  Period

  Payment Date

  	
   

  	
  Aug-10

  10/29/2010

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  All balances are inclusive of the
  August 2010 transactions distributed in September 2010.

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Total

  	
   

  	
   

  	
   

  
	
  Bulk Principal balance (ending
  August)

  	
   

  	
  30,746,992.84

  	
   

  	
   

  	
   

  
	
  Flow Principal balance (ending
  August)

  	
   

  	
  6,351,447.95

  	
   

  	
   

  	
   

  
	
  Loans
  sold

  	
   

  	
  —

  	
   

  	
   

  	
   

  
	
  Plus
  receivables pledged during the month

  	
   

  	
  —

  	
   

  	
   

  	
   

  
	
  Less
  FCC principal collections

  	
   

  	
  —

  	
   

  	
   

  	
   

  
	
  Plus/minus
  other adjustments

  	
   

  	
  (267,949.80

  	
  )

  	
   

  	
   

  
	
  I.  Total Pledged
  Receivables

  	
   

  	
  36,830,490.99

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Less Defaulted Receivables

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Bulk
  Greater than 120 days delinquent

  	
   

  	
  4,930,867.46

  	
   

  	
   

  	
   

  
	
  Flow
  Greater than 120 days delinquent

  	
   

  	
  246,670.74

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  II.

  	
  Total
  Eligible Receivable Balance

  	
   

  	
  31,652,952.79

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  III.

  	
  Maximum
  Advance Rate

  	
   

  	
  81.3950926

  	
  %

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  IV.

  	
  Eligible
  Receivable Balance (ERB) x Maximum Advance Percentage

  	
   

  	
  25,763,950.23

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  V.

  	
  Collection Account Balance (Collection Account Activity
  during Remittance Period)

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Balance as of prior Cut-off
  Date

  	
   

  	
  —

  	
   

  	
   

  	
   

  
	
  (+)

  	
  Collections on FCC assets

  	
   

  	
  —

  	
   

  	
   

  	
   

  
	
  (+)

  	
  Collections on Fair assets

  	
   

  	
  — 

  	
   

  	
   

  	
   

  
	
  (+
  -)

  	
  Other Transfers to/from
  the Borrower

  	
   

  	
  —

  	
   

  	
   

  	
   

  
	
  (-)

  	
  Accrued Yield

  	
   

  	
  —

  	
   

  	
   

  	
   

  
	
  (-)

  	
  Accrued Fees

  	
   

  	
  —

  	
   

  	
   

  	
   

  
	
  (-)

  	
  Principal Paydown

  	
   

  	
  —

  	
   

  	
   

  	
   

  
	
  (+)

  	
  Deposits in Transit
  (+Account Balance Lockbox as of month end)

  	
   

  	
  —

  	
   

  	
   

  	
   

  
	
  (-)

  	
  Third
  Party Expenes (Backup Servicer, Custodian, Collection Account, Servicer)

  	
   

  	
  —

  	
   

  	
   

  	
   

  
	
  (+)

  	
  Wire to correct Deficiency

  	
   

  	
  —

  	
   

  	
   

  	
   

  
	
  (-)

  	
  Borrowing Base Surplus
  taken out (Remittance Date)

  	
   

  	
  72,000.00

  	
   

  	
   

  	
   

  
	
  (+ -)

  	
  Other Transfers

  	
   

  	
  177,207.35

  	
   

  	
   

  	
   

  
	
  (+)

  	
  Income
  Collection Account

  	
   

  	
  —

  	
   

  	
   

  	
   

  
	
   

  	
  Collection Account Balance as of month end

  	
   

  	
  249,207.35

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  VI.

  	
  Collection
  Account Activity at Remittance Date

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (-)

  	
  Principal Paydown

  	
   

  	
  (68,534.91

  	
  )

  	
   

  	
   

  
	
  (-)

  	
  To the Borrower Borrowing
  Base Deficiency / (Surplus)

  	
   

  	
  (180,672.44

  	
  )

  	
   

  	
   

  



 

















 


	
  VII.

  	
   

  	
  Remittance
  Date Distributions

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (i)

  	
   

  	
  Collateral Custodian Fees
  (min. $100 per month)

  	
   

  	
  —

  	
   

  	
   

  	
   

  
	
  (ii)

  	
   

  	
  Owner Trustee Fee

  	
   

  	
  —

  	
   

  	
   

  	
   

  
	
  (iii)

  	
   

  	
  Back-up Servicer Fees

  	
   

  	
  —

  	
   

  	
   

  	
   

  
	
  (iv)

  	
   

  	
  Management Fee

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (v)

  	
   

  	
  Accrued Yield

  	
   

  	
  —

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  FCF I

  	
   

  	
  —

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  FCL

  	
   

  	
  —

  	
   

  	
   

  	
   

  
	
  (vi)

  	
   

  	
  Borrowing Base deficiency

  	
   

  	
  —

  	
   

  	
   

  	
   

  
	
  (vii)

  	
   

  	
  Other
  Obligations due to Lender-Legal Invoice

  	
   

  	
  —

  	
   

  	
   

  	
   

  
	
  (viii)

  	
   

  	
  After
  Early Amortization Event - Amount necessary to repay outstanding balance

  	
   

  	
  —

  	
   

  	
   

  	
   

  
	
  (x)

  	
   

  	
  Cash
  Flow Reserve Deposit

  	
   

  	
  —

  	
   

  	
   

  	
   

  
	
  (xii)

  	
   

  	
  Overpayments
  / FCC Cash

  	
   

  	
  —

  	
   

  	
   

  	
   

  
	
  (xiii)

  	
   

  	
  US
  Bank Analysis Fee Reim (50%)

  	
   

  	
  —

  	
   

  	
   

  	
   

  
	
  (xiv)

  	
   

  	
  Remaining
  Balance in Collection Account (after actual close of Remittance Period)

  	
   

  	
  —

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  VIII.

  	
   

  	
  Capital Limit - the lesser of (a) and (b):

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Sum of iV + V:        ERB x Maximum Advance Percentage

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
                                   (+)
  Collection Account Balance

  	
   

  	
  25,763,950.23

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  IX.

  	
   

  	
  Outstanding Loan Amount

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Beginning
  Loans Outstanding

  	
   

  	
  21,949,046.82

  	
   

  	
   

  	
   

  
	
  (-)

  	
   

  	
  Principal
  Repayments

  	
   

  	
  (68,534.91

  	
  )

  	
   

  	
   

  
	
  (+)

  	
   

  	
  Other
  Borrowings

  	
   

  	
  3,383,438.32

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Ending Loans Outstanding

  	
   

  	
  25,763,950.23

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  X.

  	
   

  	
  Accrued Yield and Fees

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (+)

  	
   

  	
  Accrued
  Yield (FCF I)

  	
   

  	
  —

  	
   

  	
   

  	
   

  
	
  (+)

  	
   

  	
  Accrued
  Yield (FCF III)

  	
   

  	
  —

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Total Accrued Yield and Fees

  	
   

  	
  —

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  XI.

  	
   

  	
  Facility Amount (DC)

  	
   

  	
  25,763,950.23

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  XII.

  	
   

  	
  Borrowing Surplus/ (Deficiency) (VIII - IX)

  	
   

  	
  0.00

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  XIII.

  	
   

  	
  Is Advance Percentage less than or equal to Maximum Advance
  Percentage?

  	
   

  	
   

  	
   

  	
  Yes

  	
   

  
	
   

  	
   

  	
  Advance Percentage

  	
   

  	
  81.40

  	
  %

  	
   

  	
   

  
	
   

  	
   

  	
  Maximum Advance Percentage

  	
   

  	
  81.40

  	
  %

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


	
  XIV.

  	
   

  	
  Delinquency

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  All
  Eligible Receivables

  	
   

  	
  Total

  Principal Balance (in $)

  	
   

  	
  Bulk

  Principal Balance (in $)

  	
   

  	
  Flow

  Principal Balance (in $)

  	
   

  
	
   

  	
   

  	
  Current - =<30 days

  	
   

  	
  29,369,923.68

  	
   

  	
  23,433,253.26

  	
   

  	
  5,936,670.42

  	
   

  
	
   

  	
   

  	
  31-60 days

  	
   

  	
  967,028.03

  	
   

  	
  884,531.72

  	
   

  	
  82,496.31

  	
   

  
	
   

  	
   

  	
  61-90 days

  	
   

  	
  728,867.15

  	
   

  	
  692,094.11

  	
   

  	
  36,773.04

  	
   

  
	
   

  	
   

  	
  91-120 days

  	
   

  	
  587,133.93

  	
   

  	
  538,296.49

  	
   

  	
  48,837.44

  	
   

  
	
   

  	
   

  	
  Total

  	
   

  	
  31,652,952.79

  	
   

  	
  25,548,175.58

  	
   

  	
  6,104,777.21

  	
   

  



 
















 


	
  XV. Early Amortization Event Test

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Excess
  Spread

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Weighted
  Average APR of all Eligibe Receivables

  	
   

  	
  14.41

  	
  %

  	
   

  	
   

  
	
  LIBOR
  Rate

  	
   

  	
  0.25940

  	
  %

  	
   

  	
   

  
	
  Spread
  (fixed)

  	
   

  	
  5.5

  	
  %

  	
   

  	
   

  
	
  Interest
  Rate

  	
   

  	
  5.8

  	
  %

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Excess
  Spread

  	
   

  	
  8.65

  	
  %

  	
   

  	
   

  
	
  Is
  Excess Spread greater or equal to 4.00%?

  	
   

  	
  NO HEDGING REQUIRED

  	
   

  	
   

  	
   

  
	
  If
  Excess Spread is below 4.00%, has the Borrower entered into a Hedge
  Transaction

  	
   

  	
  N/A

  	
   

  	
   

  	
   

  
	
  Is
  Excess Spread greater or equal to 3.00% ?

  	
   

  	
  IN
  COMPLIANCE

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3 Month Rolling Avg Delinquent Accounts Ratio

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Pledged
  Eligible Receivables that were Delinquent Receivables

  	
   

  	
  2,283,029.11

  	
   

  	
   

  	
   

  
	
  Aggregate
  Outstanding Balance of all Eligible Receivables as of the end of such
  Collection Period

  	
   

  	
  31,652,952.79

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3 Month Rolling Avg Delinquent Accounts Ratio

  	
   

  	
  7.29

  	
  %

  	
   

  	
   

  
	
  Is
  3 Month Rolling Avg Delinquent Accounts Ratio less than or equal to 11.00%?

  	
   

  	
  IN COMPLIANCE

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3 Month Rolling Avg Annualized Default Rate

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Pledged
  Eligible Receivables that became Defaulted Receivables

  	
   

  	
  275,678.33

  	
   

  	
   

  	
   

  
	
  Aggregate
  Outstanding Balance of all Eligible Receivables as of the first day of such
  Collection Period

  	
   

  	
  32,424,840.26

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3 Month Rolling Avg Annualized Default Rate

  	
   

  	
  8.92

  	
  %

  	
   

  	
   

  
	
  Is
  3 Month Rolling Avg Annualized
  Default Rate less than or equal to 12.00%?

  	
   

  	
  INCOMPLIANCE

  	
   

  	
   

  	
   

  



 


The undersigned hereby
represents and warrants that this report is a true and accurate accounting of
the Receivables as of the date hereof, in accordance with the terms and
conditions of the First Amendment to the Credit Agreement dated as of
October 29, 2010 among FCC Investment Trust I as Borrower, Fortress Credit
Opportunities I LP and Fortress Credit Funding I LP and Fortress Credit Funding
III LP as Lender, and Fortress Credit Co LLC as Administrative Agent.


 


	
   

  	
  FCC Investment Trust I

  	
  Tuesday,
  August 31, 2010

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  



 

















 


	
  Servicing Report - FCC Investment Trust

  	
   

  	
  Collection Period

  Payment Date

  	
   

  	
  Sep-10

  10/29/2010

  	
   

  
	
  All balances are inclusive of the
  September 2010 transactions distributed in October 2010.

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Total

  	
   

  	
   

  	
   

  
	
  Principal balance (ending prior month)

  	
   

  	
  36,830,734.05

  	
   

  	
   

  	
   

  
	
  Loans
  sold

  	
   

  	
  —

  	
   

  	
   

  	
   

  
	
  Less
  principal collections

  	
   

  	
  (490,614.95

  	
  )

  	
   

  	
   

  
	
  Plus/minus
  other adjustments

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  I. Total Pledged Receivables

  	
   

  	
  36,340,119.10

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Less Defaulted Receivables

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Greater
  than 120 days delinquent (ending prior month)

  	
   

  	
  5,177,943.26

  	
   

  	
   

  	
   

  
	
  New
  defaults

  	
   

  	
  366,982.48

  	
   

  	
   

  	
   

  
	
  Adjustments

  	
   

  	
  —

  	
   

  	
   

  	
   

  
	
  Recoveries

  	
   

  	
  (14,711.50

  	
  )

  	
   

  	
   

  
	
  Greater
  than 120 days delinquent as of reporting date

  	
   

  	
  5,530,214.24

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  II.

  	
  Total Eligible Receivable Balance

  	
   

  	
  30,809,904.86

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  III.

  	
  Maximum Advance Rate

  	
   

  	
  81.43995592

  	
  %

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  IV.

  	
  Eligible Receivable Balance (ERB) x Maximum Advance
  Percentage

  	
   

  	
  25.091,572.94

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  V.

  	
  Collection Account Balance (Collection Account Activity
  during Remittance Period)  

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Balance
  as of prior Cut-off Date

  	
   

  	
  —

  	
   

  	
   

  	
   

  
	
  (+)

  	
  Collections

  	
   

  	
  677,354.16

  	
   

  	
   

  	
   

  
	
  (+ -)

  	
  Other
  Transfers to/from the Borrower

  	
   

  	
  72,000.00

  	
   

  	
   

  	
   

  
	
  (-)

  	
  Accrued
  Yield

  	
   

  	
  —

  	
   

  	
   

  	
   

  
	
  (-)

  	
  Accrued
  Fees

  	
   

  	
  —

  	
   

  	
   

  	
   

  
	
  (-)

  	
  Principal
  Paydown

  	
   

  	
  —

  	
   

  	
   

  	
   

  
	
  (+)

  	
  Deposits
  in Transit (i.e. Account Balance Lockbox as of month end + Pay by Phone +
  Trans Union)

  	
   

  	
  186,173.39

  	
   

  	
   

  	
   

  
	
  (-)

  	
  Third
  Party Expenes (Backup Servicer, Custodian, Collection Account, Servicer)

  	
   

  	
  —

  	
   

  	
   

  	
   

  
	
  (+)

  	
  Wire
  to correct Deficiency

  	
   

  	
  —

  	
   

  	
   

  	
   

  
	
  (-)

  	
  Borrowing
  Base Surplus taken out (Remittance Date)

  	
   

  	
  —

  	
   

  	
   

  	
   

  
	
  (+ -)

  	
  Other
  Transfers

  	
   

  	
  176,964.29

  	
   

  	
   

  	
   

  
	
  (+)

  	
  Interest
  Income Collection Account less all bank fees

  	
   

  	
  (2,715.37

  	
  )

  	
   

  	
   

  
	
   

  	
  Collection Account Balance as of month end

  	
   

  	
  1,109,776.47

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  VI.

  	
  Collection Account Activity at Remittance Date

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (-)

  	
  Principal
  Paydown

  	
   

  	
  (740,912.20

  	
  )

  	
   

  	
   

  
	
  (-)

  	
  To
  the Borrower Borrowing Base Deficiency / (Surplus)

  	
   

  	
  (180,429.38

  	
  )

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  VII.

  	
  Remittance Date Distributions

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (i)

  	
  Collateral
  Custodian Fees (min. $100 per month)

  	
   

  	
  (931.85

  	
  )

  	
   

  	
   

  
	
  (ii)

  	
  Owner
  Trustee Fee & Collection
  Account Bank Fees / Expenses

  	
   

  	
  (1,900.00

  	
  )

  	
   

  	
   

  
	
  (iii)

  	
  Back-up
  Servicer Fees

  	
   

  	
  (2,088.96

  	
  )

  	
   

  	
   

  
	
  (iv)

  	
  Management
  Fee

  	
   

  	
  (46,038.42

  	
  )

  	
   

  	
   

  
	
  (v)

  	
  Accrued
  and unpaid Interest

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  FCF
  I

  	
   

  	
  (7,587.54

  	
  )

  	
   

  	
   

  
	
   

  	
  FCF
  III

  	
   

  	
  (99,331.90

  	
  )

  	
   

  	
   

  
	
   

  	
  FCO
  I

  	
   

  	
  (15,696.94

  	
  )

  	
   

  	
   

  
	
  (vi)

  	
  Borrowing
  Base deficiency

  	
   

  	
  —

  	
   

  	
   

  	
   

  
	
  (vii)

  	
  Other
  Obligations due to Lender

  	
   

  	
  —

  	
   

  	
   

  	
   

  
	
  (viii)

  	
  After
  occurrence and during the continuance of an Event of Default - Amount
  necessary to repay outstanding balance

  	
   

  	
  —

  	
   

  	
   

  	
   

  
	
  (x)

  	
  Overpayments
  / FCC Cash

  	
   

  	
  (14,859.28

  	
  )

  	
   

  	
   

  
	
  (xii)

  	
  Remaining
  Balance in Collection Account (after actual close of Remittance Period)

  	
   

  	
  (0.00

  	
  )

  	
   

  	
   

  



 
















 


	
  VIII.

  	
  Capital
  Limit - the lesser of
  (a) and (b):

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Sum of iV + V:           ERB x Maximum Advance Percentage

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
                                      (+)
  Collection Account Balance

  	
   

  	
  25,091,572.94

  	
   

  	
   

  	
   

  
	
  IX.

  	
  Outstanding
  Loan Amount

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Beginning Loans
  Outstanding

  	
   

  	
  25,832,485.14

  	
   

  	
   

  	
   

  
	
  (-)

  	
  Required Reduction Amount

  	
   

  	
  (740,912.20

  	
  )

  	
   

  	
   

  
	
   

  	
  Ending
  Loans Outstanding

  	
   

  	
  25,091,572.94

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  X.

  	
  Accrued
  Yield and Fees

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (+)

  	
  Accrued Yield (FCF I)

  	
   

  	
  7,587.54

  	
   

  	
   

  	
   

  
	
  (+)

  	
  Accrued Yield (FCF III)

  	
   

  	
  99,331.90

  	
   

  	
   

  	
   

  
	
  (+)

  	
  Accrued Yield (FCO I)

  	
   

  	
  15,696.94

  	
   

  	
   

  	
   

  
	
   

  	
  Total
  Accrued Yield and Fees

  	
   

  	
  122,616.38

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  XI.

  	
  Facility
  Amount (IX.)

  	
   

  	
  25,091,572.94

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  XII.

  	
  Borrowing
  Surplus / (Deficiency) (VIII - IX)

  	
   

  	
  (0.00

  	
  )

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  XIII.

  	
  Is Advance Percentage less than or equal to Maximum Advance
  Percentage?

  	
   

  	
   

  	
   

  	
  Yes

  	
   

  
	
   

  	
  Advance Percentage

  	
   

  	
  81.44

  	
  %

  	
   

  	
   

  
	
   

  	
  Maximum Advance Percentage

  	
   

  	
  81.44

  	
  %

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  XIV.

  	
  Delinquency

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Principal Balance (in $)

  	
   

  	
   

  	
   

  
	
   

  	
  All Eligible Receivables

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Current - =<30 days

  	
   

  	
  28,628,279.28

  	
   

  	
   

  	
   

  
	
   

  	
  31-60 days

  	
   

  	
  1,109,343.69

  	
   

  	
   

  	
   

  
	
   

  	
  61-90 days

  	
   

  	
  632,647.77

  	
   

  	
   

  	
   

  
	
   

  	
  91-120 days

  	
   

  	
  439,634.12

  	
   

  	
   

  	
   

  
	
   

  	
  Total

  	
   

  	
  30,809,904.86

  	
   

  	
   

  	
   

  



 

















 


	
  XV. 

  	
  Early
  Amortization Event Test

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Excess
  Spread

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Weighted
  Average APR of all Eligibe Receivables

  	
   

  	
  14.41

  	
  %

  	
   

  	
   

  
	
   

  	
  LIBOR
  Rate

  	
   

  	
  0.25938

  	
  %

  	
   

  	
   

  
	
   

  	
  Spread
  (fixed)

  	
   

  	
  5.5

  	
  %

  	
   

  	
   

  
	
   

  	
  Interest
  Rate

  	
   

  	
  5.8

  	
  %

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Excess
  Spread

  	
   

  	
  8.65

  	
  %

  	
   

  	
   

  
	
   

  	
  Is
  Excess Spread greater or equal to 4.00%?

  	
   

  	
  NO
  HEDGING REQUIRED

  	
   

  	
   

  	
   

  
	
   

  	
  If
  Excess Spread is below 4.00%, has the Borrower entered into a Hedge
  Transaction

  	
   

  	
  N/A

  	
   

  	
   

  	
   

  
	
   

  	
  Is
  Excess Spread greater or equal to 3.00%?

  	
   

  	
  IN
  COMPLIANCE

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3
  Month Rolling Avg Delinquent Accounts Ratio

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Pledged
  Eligible Receivables that were Delinquent Receivables

  	
   

  	
  2,181,625.58

  	
   

  	
   

  	
   

  
	
   

  	
  Aggregate
  Outstanding Balance of all Eligible Receivables as of the end of such
  Collection Period

  	
   

  	
  30,809,904.86

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3
  Month Rolling Avg Delinquent Accounts Ratio

  	
   

  	
  7.25

  	
  %

  	
   

  	
   

  
	
   

  	
  Is
  3 Month Rolling Avg Delinquent Accounts Ratio less than or equal to 11.00%?

  	
   

  	
  IN
  COMPLIANCE

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3 Month Rolling Avg Annualized
  Default Rate

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Pledged
  Eligible Receivables that became Defaulted Receivables

  	
   

  	
  366,982.48

  	
   

  	
   

  	
   

  
	
   

  	
  Aggregate
  Outstanding Balance of all Eligible Receivables as of the first day of such
  Collection Period

  	
   

  	
  31,652,952.79

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3
  Month Rolling Avg Annualized Default Rate

  	
   

  	
  10.54

  	
  %

  	
   

  	
   

  
	
   

  	
  Is
  3 Month Rolling Avg Annualized Default Rate less than or equal to 12.00%?

  	
   

  	
  IN
  COMPLIANCE

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  The undersigned hereby
  represents and warrants that this report is a true and accurate accounting of
  the Receivables as of the date hereof, in accordance with the terms and
  conditions of the First Amendment to the Credit Agreement dated as of
  October 29, 2010 among FCC Investment Trust I as Borrower, Fortress
  Credit Opportunities I LP and Fortress Credit Funding I LP and Fortress
  Credit Funding III LP as Lender, and Fortress Credit Co LLC as Administrative
  Agent.

  



 


 


	
   

  	
  FCC Investment Trust I

  	
  Thursday, September 30, 2010

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title: