Exhibit 10.2


 


EXECUTION COPY


 


WAIVER AND RELEASE TO

REVOLVING CREDIT AGREEMENT


 


THIS WAIVER AND RELEASE TO REVOLVING CREDIT AGREEMENT (this “Waiver”) is made as of February 26,
2010, among CLST Asset Trust II, a Delaware
statutory trust, as a borrower (“Trust II”), SSPE Investment Trust I, a Delaware statutory trust,
as a borrower (“Trust I Borrower”), SSPE, LLC, a Delaware limited liability company, as a borrower
(the “LLC Borrower” and, together with Trust I Borrower and
Trust II, the “Borrowers”), Summit
Consumer Receivables Fund, L.P., a Delaware limited
partnership, as the originator (the “Originator”) and as a
guarantor, Summit Alternative Investments,
LLC, a Nevada limited liability company, as the servicer (the “Servicer”), CLST Financo, Inc. (“CLST Financo”), Eric J. Gangloff, as a guarantor, Fortress Credit Opportunities I L.P., as a lender (the “Lender”), Fortress Credit Co LLC (as assignee for Fortress
Credit Corp.), as the administrative agent for the Lenders (in such capacity,
the “Administrative Agent”), 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 (among others) entered into that certain Second Amended and
Restated Revolving Credit Agreement, dated as of December 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 Borrowers, the
Servicer, the Administrative Agent, and the Required Lenders, and, to the extent
affected thereby, the Collateral Custodian and the Backup Servicer, may waive,
amend and supplement the provisions of the Credit Agreement; and


 


WHEREAS,
the parties to the Credit Agreement desire to waive certain provisions of the
Credit Agreement in certain respects and consent to certain actions, as
provided herein.


 


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


 


ARTICLE I


 


WAIVER


 


Section 1.01. Waiver.


 


(a)           Each of the Borrowers hereby requests
that the Administrative Agent and each Lender waive, and by signing below each
of the Administrative Agent and the Lenders does hereby waive, as of the date
hereof, each Event of Default declared in that certain Notice of Default dated
as of December 2, 2009 and that certain Notice of Default dated as of February 8,
2010 (the “Waived Defaults”). This waiver is a one-time
waiver and shall not be construed to be


 

















 


a
waiver as to non-compliance of any of the other provisions of the Credit
Agreement or for any other time period. This Section 1.01 shall in
no event be construed as an acknowledgment by the Borrowers, their Affiliates
or Eric J. Gangloff that the Events of
Default referenced in the December 2, 2009 and February 8, 2010
Notices of Default had in fact occurred. The waiver with respect to the December 2,
2009 Notice of Default shall be deemed to be effective as of December 31,
2009.


 


(b)           Trust II  hereby acknowledges and
agrees that, from and after the date hereof, it  shall not make any request
for a Loan under the Credit Agreement and the Lender shall have no duty or
obligation to fund any such request by Trust II. It is understood by the
Administrative Agent and the Lender that no Unused Fee shall accrue or be charged
to Trust II from and after the date hereof.


 


ARTICLE II


 


CONSENT AND RELEASE


 


Section 2.01. Consent.


 


Each
of the Administrative Agent, Lender and the Borrowers hereby consents (i) to
the repayment in full of their respective portion of the Loans Outstanding by
each of the LLC Borrower and the Trust I Borrower pursuant to Section 2.3
of the Credit Agreement with the proceeds of the sale by each of the LLC
Borrower and the Trust I Borrower of their respective portions of the
Collateral to Spinnaker Consumer Receivables Trust pursuant to that certain
Sale and Assignment, dated as of February 26, 2010, by and among Fortress
Credit Corp., the LLC Borrower, the Trust I Borrower and Spinnaker Consumer
Receivables Trust (the “Sale and Assignment”) and (ii) the
transaction contemplated by such Sale and Assignment. Each of the
Administrative Agent and the Lender agree that no prepayment fee, make-whole
fee or premium shall be payable in connection with such repayment and that such
repayment may be made upon one (1) Business Day’s prior written notice
from the LLC Borrower and the Trust I Borrower to the Administrative Agent.


 


Section 2.02. Release.


 


(a)           Each of the parties hereto hereby
agrees that, upon the repayment in full of all  their respective Loans
Outstanding by the LLC Borrower and the Trust I Borrower, (i) each
Guarantor shall be released and discharged from the Credit Agreement and the
other Transaction Documents as a party thereto such that from and after the
date hereof the Guarantors shall have no continuing liability or obligations
under the Credit Agreement (including, without limitation, any liabilities
and/or obligations arising under Article XIV of the Credit Agreement) or
the other Transaction Documents, (ii) each of the LLC Borrower, the Trust
I Borrower, Summit Consumer Receivables Fund, L.P. and Summit Alternative
Investments, LLC (each of the foregoing, together with Eric J. Gangloff, the “Summit Entities”) shall be released and
discharged from the Credit Agreement and the other Transaction Documents as a
party thereto such that from and after the date hereof no Summit Entity shall
have any continuing liability or obligations under the Credit Agreement or the
other Transaction Documents; provided that, if the
Administrative Agent, the Lender, the Collateral Custodian or the Backup
Servicer incurs any Indemnified


 


2

















 


Amounts
with respect to any action or event attributable to a Summit Entity (or any
Collateral related to a Summit Entity) occurring prior to the date hereof or
related to the breach prior to the date hereof by a Summit Entity of any
representation, warranty or covenant under the Transaction Documents (other
than the Waived Defaults), the foregoing release shall not apply and the Administrative
Agent or other applicable party may pursue all rights and remedies available to
them under the Credit Agreement and the other Transaction Documents against the
applicable Summit Entity that the applicable party would have had without
giving effect to the execution of this Waiver, and (iii) that certain side
letter dated December 10, 2008 from Trust II and CLST Financo to Trust I
Borrower, LLC Borrower, Summit Consumer Receivables Fund, L.P., Summit
Alternative Investments, LLC and Eric J. Gangloff, shall be terminated and of
no further force and effect.


 


(b)             The Administrative
Agent hereby requests, and by signing below the Collateral Custodian hereby
agrees to such request, that the Collateral Custodian hold and maintain the
Required Receivables Files with respect to the Collateral being transferred to
Spinnaker Consumer Receivables Trust pursuant to the Sale and Assignment in its
capacity as “Collateral Custodian” (in such capacity, the “Term Collateral
Custodian”) under that certain Credit Agreement, dated as of August 15,
2008, by and among FCC Finance, LLC, Spinnaker Consumer Receivables Trust,
Fortress Credit Co LLC, the Collateral Custodian and the Backup Servicer.


 


(c)             The parties hereto
agree that from and after the date hereof, the Servicer Defaults set forth in
clauses (c) and (g) of Section 6.12 of the Credit Agreement and
the Events of Default set forth in clauses (s), (t) and (u) of Section 10.1
of the Credit Agreement shall be deemed to be removed from the Credit Agreement
and of no further effect.


 


Section 2.03. Consent to Servicer Transfer.


 


Each
of the Administrative Agent, the Lender, the Summit Entities, Trust II and FCC
Finance, LLC hereby acknowledges and agrees that from and after the date hereof
FCC Finance, LLC (“FCC”) shall assume the role of successor Servicer
pursuant to and in accordance with Section 6.13 of the Credit Agreement
with respect to that portion of the Collateral that is owned by Trust II. For
the avoidance of doubt, Trust II and FCC shall only look to the terms of the
Credit Agreement in respect of all servicing duties and obligations of FCC
thereunder. The Servicer hereby acknowledges and agrees that amounts held on
the date hereof or received after the date hereof by the Servicer with respect
to Collateral not being transferred to Spinnaker Consumer Receivables Trust as
contemplated herein shall be transferred (i) by the Servicer to FCC on the
date hereof in the case of any such amounts held by the Servicer on the date
hereof and (ii) by the Servicer to FCC within one (1) Business Day of
receipt in the case of any such new amounts received by the Servicer after the
date hereof.


 


ARTICLE III


 


MISCELLANEOUS


 


Section 3.01. Conditions to Effectiveness. The
effectiveness of this Waiver is subject to the conditions precedent that (i) the
Administrative Agent shall have received counterparts of


 


3

















 


this
Waiver duly executed by all of the parties hereto, (ii) Trust II  shall have
received from the Servicer the sum of $97,466, representing the amount agreed
to by Trust II  and CLST Financo as the
amount payable to Trust II under the Credit Agreement with respect to its
Collateral as of the date hereof and (iii) all conditions precedent to the
transfer of Loans Outstanding by the LLC Borrower and the Trust I Borrower
described in Section 2 have been satisfied.


 


Section 3.02.Credit Agreement in Full Force and Effect
as Waived. 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
Waiver. This Waiver shall not constitute a novation of the Credit Agreement,
but shall constitute a waiver thereof. The parties hereto agree to be bound by
the terms and obligations of the Credit Agreement, as amended by this Waiver,
as though the terms and obligations of this Waiver were set forth in the Credit
Agreement.


 


Section 3.03. Representations and Warranties. Trust II  hereby
represents and warrants that, immediately after giving effect to this Waiver,
no Event of Default or Unmatured Event of Default shall have occurred and be
continuing.


 


Section 3.04.Prior Understandings. This Waiver
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 3.05. Counterparts. This Waiver 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.


 


Section 3.06. Governing Law. This Waiver
shall be governed by and construed in accordance with the law of the State of
New York.


 


4

















 


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


 


	
   

  	
  THE BORROWERS:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  SSPE INVESTMENT TRUST I

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: U.S. Bank Trust National
  Association, 

  not
  in its individual capacity but solely
  as  

  statutory,
  trustee

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Tamara Schultz-Fugh

  
	
   

  	
   

  	
  Name:

  	
  Tamara Schultz-Fugh

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Vice
  President

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  CLST ASSET TRUST II

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:
  U.S. Bank Trust National Association, 

  not
  in its individual capacity but solely as 

  statutory
  trustee

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Tamara Schultz-Fugh

  
	
   

  	
   

  	
  Name:

  	
  Tamara Schultz-Fugh

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Vice
  President

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  SSPE, LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Eric J. Gangloff

  
	
   

  	
   

  	
  Name:

  	
  Eric
  J. Gangloff

  	
   

  
	
   

  	
   

  	
  Title:

  	
  President

  	
   

  



 
















 


	
   

  	
   

  	
  SUMMIT
  ALTERNATIVE INVESTMENTS, LLC, as the Servicer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:
  Gangloff & Associates Inc., it sole member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Eric J. Gangloff

  
	
   

  	
   

  	
  Name:
  Eric J. Gangloff

  
	
   

  	
   

  	
  Title:
  President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  SUMMIT
  CONSUMER RECEIVABLES FUND, L.P., as the Originator and as
  a Guarantor

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:
  Summit Alternative Investments, LLC, its General Partner

  
	
   

  	
   

  	
  By:
  Gangloff & Associates Inc., its sole member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Eric J. Gangloff

  
	
   

  	
   

  	
  Name:
  Eric J. Gangloff

  
	
   

  	
   

  	
  Title:
  President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ERIC
  J. GANGLOFF, as a Guarantor

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Eric J. Gangloff

  
	
   

  	
   

  	
  Name:
  Eric J. Gangloff

  



 

















 


	
   

  	
   

  	
  CLST
  FINANCO, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Robert A. Kaiser

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


[Signatures Continued on the Following Page]


 

















 


	
   

  	
   

  	
  FORTRESS CREDIT CO LLC, as the Administrative
  Agent

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Marc K. Furstein

  
	
   

  	
   

  	
  Name:

  	
  MARC
  K. FURSTEIN

  
	
   

  	
   

  	
  Title:

  	
  CHIEF
  OPERATING OFFICER

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  FORTRESS CREDIT OPPORTUNITIES I L.P., as Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:
  Fortress Credit Opportunities I GP LLC, its general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Marc K. Furstein

  
	
   

  	
   

  	
  Name:
  

  	
  MARC
  K. FURSTEIN

  
	
   

  	
   

  	
  Title:
  

  	
  CHIEF
  OPERATING OFFICER

  



 

















 


Acknowledged and agreed:


 


	
  U.S.
  BANK NATIONAL, ASSOCIATION, 

  not
  in its individual capacity but solely as Collateral Custodian and as the Term
  Collateral Custodian

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/
  Tamara Schultz-Fugh

  	
   

  
	
  Name:

  	
  Tamara
  Schultz-Fugh

  	
   

  
	
  Title:

  	
  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/
  Joseph Andries

  	
   

  
	
  Name:

  	
  Joseph
  Andries

  	
   

  
	
  Title:

  	
  Senior
  Vice President