1345 AVENUE OF THE AMERICAS 46TH FLOOR NEW YORK, NY 10105 TEL ###-###-####
Exhibit 10.13
1345 AVENUE OF THE AMERICAS 46TH FLOOR NEW YORK, NY 10105 TEL ###-###-#### |
December 2, 2009
VIA FACSIMILE AND OVERNIGHT MAIL
SUMMIT ALTERNATIVE INVESTMENTS,
LLC
50 West Liberty Street, Suite 980
Reno, Nevada 89501
SUMMIT CONSUMER RECEIVABLES
FUND, L.P.
50 West Liberty Street, Suite 980
Reno, Nevada 89501
SSPE, LLC
50 West Liberty Street, Suite 980
Reno, Nevada 89501
Attention: Eric J. Gangloff
SSPE INVESTMENT TRUST I
50 West Liberty Street, Suite 980
Reno, Nevada 89501
CLST ASSET TRUST II
815 E. Market Street
Akron, Ohio 44305
Re: Notice of Default and Servicer Default
Ladies and Gentlemen:
Reference is made herein to that certain Second Amended and Restated Revolving Credit Agreement, dated as of December 10, 2008 (as amended, modified, supplemented or restated from time to time, the Credit Agreement), by and 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), SSPE, LLC, a Delaware limited liability company, as a borrower (the LLC Borrower and, together with Trust I 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), Eric J. Gangloff, as a guarantor, the Lenders party thereto, Fortress Credit Corp. (Fortress), as the administrative agent for the Lenders (in such capacity, the
Administrative Agent), U.S. Bank National Association, as the Collateral Custodian and Lyon Financial Services, Inc. (d/b/a U.S. Bank Portfolio Services), as the Backup Servicer. Capitalized terms used herein but not otherwise defined shall have the meanings assigned to such terms in the Credit Agreement.
We hereby call to your attention that a Servicer Default has occurred and is continuing pursuant to Section 6.12(h) of the Credit Agreement as a result of a Material Adverse Effect with respect to the Servicer. In particular, the event giving rise to the Material Adverse Effect is the failure of Fair Finance Company, in its capacity as a Sub-Servicer, to perform its servicing duties with respect to that portion of the Receivables portfolio for which it has been retained as Sub-Servicer under its Sub-Servicing Agreement as a result of the ongoing federal investigation of each of Timothy Durham and Fair Finance Company. Since Summit Alternative Investments, LLC does not actively service the referenced Receivables, the consequence of this event is that there is no entity performing the primary Servicer functions set forth in the Credit Agreement. As you are aware, a Servicer Default gives rise to an Event of Default pursuant to Section 10.1(g) of the Credit Agreement.
Under the terms of the Credit Agreement and the other Transaction Documents, the existence of such an Event of Default entitles the Administrative Agent, for the benefit of the Lenders, to exercise any and all of the rights and remedies provided in the Credit Agreement, the Securities Account Control Agreement and other Transaction Documents as set forth therein and/or as provided for under applicable law, including without limitation, declaring the Variable Funding Notes to be immediately due and payable in full without presentment, demand, protest or notice of any kind and enforcing all rights and remedies with respect to the Collateral.
The Administrative Agent and the Lenders have reserved, and continue to reserve, their rights to, at any time, take any and all actions, and exercise any and all rights, powers, privileges and remedies authorized or permitted under the Credit Agreement, the Securities Account Control Agreement or any other Transaction Document and/or applicable law, at any time in its sole and absolute discretion. No delay by the Administrative Agent or the Lenders in the exercise of any right, power, privilege or remedy against the Borrowers or against any Collateral shall constitute or be deemed a waiver of any such right, power, privilege or remedy, each of which is and shall be expressly reserved. Furthermore, any prior or current discussions (oral and written) or course of conduct between Fortress, on the one hand, and any Borrower, the Originator, the Servicer or any Guarantor, on the other hand, is not and has not been intended to constitute a waiver of any such rights, powers, privileges or remedies, or an amendment of the Credit Agreement, the Securities Account Control Agreement or any other Transaction Document.
Notwithstanding the foregoing, Fortress, as it continues to evaluate the situation, expects and requires each Borrower, the Servicer and the Originator each to timely comply with its respective duties and obligations under the provisions of the Credit Agreement and the other Transaction Documents.
Should you have any questions concerning the above, please contact DeWayne Chin at ###-###-####.
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| Very truly yours, | |
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| FORTRESS CREDIT CORP. | |
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| By: | /s/ Constantine M. Dakolias |
| Name: | CONSTANTINE M. DAKOLIAS |
| Title: | PRESIDENT |
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