Exhibit 10.4
WAIVER WITH RESPECT TO SALE AND SERVICING AGREEMENTS AND
INSURANCE AND INDEMNITY AGREEMENTS DATED MARCH 31, 2003 BETWEEN
RADIAN ASSET ASSURANCE INC., TFC AUTOMOBILE RECEIVABLES TRUST
2001-1, TFC RECEIVABLES CORPORATION IV, AS SELLER, THE COMPANY,
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION, AS TRUSTEE,
TRUST COLLATERAL AGENT, BACKUP SERVICER AND P.O. BOX OWNER, AND
XXXXX FARGO FINANCIAL AMERICA, INC., AS SUCCESSOR SERVICER
This WAIVER WITH RESPECT TO SALE AND SERVICING AGREEMENTS AND INSURANCE AND
INDEMNITY AGREEMENTS (this "Waiver") is made as of March 31, 2003, to (a) (i)
that certain Sale and Servicing Agreement dated as of March 30, 2001 (the"2001-1
SSA"), among Asset Guaranty Insurance Company (now known as Radian Asset
Assurance Inc.), TFC Automobile Receivables Trust 2001-1 (the "2001-1 Issuer"),
TFC Receivables Corporation IV ("TFCRC IV"), as Seller, The Finance Company
("TFC"), Xxxxx Fargo Bank Minnesota, National Association ("Xxxxx Fargo"), as
Trustee, Trust Collateral Agent, Backup Servicer and P.O. Box Owner, and Xxxxx
Fargo Financial America, Inc. ("Xxxxx Fargo Financial"), as Successor Servicer,
(ii) that certain Sale and Servicing Agreement dated as of March 19, 2002 (the
"2002-1 SSA"), among Radian Asset Assurance Inc. (the "Insurer"), TFC Automobile
Receivables Trust 2002-1 (the "2002-1 Issuer"), TFC Receivables Corporation V
("TFCRC V"), as Seller, TFC, Xxxxx Fargo, as Trustee, Trust Collateral Agent,
Backup Servicer and P.O. Box Owner, and Xxxxx Fargo Financial, as Successor
Servicer and (iii) that certain Sale and Servicing Agreement, dated as of
October 9, 2002 (the "2002-2 SSA"), among the Insurer, TFC Automobile
Receivables Trust 2002-2, as Issuer (the "2002-2 Issuer"), TFC Receivables
Corporation VI, as Seller ("TFCRC VI"), TFC, Xxxxx Fargo, as Trust Collateral
Agent and Backup Servicer and Xxxxx Fargo Financial Servicing Solutions, LLC,
("Solutions") as Successor Servicer (the 2001-1 SSA, 2002-1 SSA and 2002-2 SSA
referred to herein collectively as the "Sale and Servicing Agreements" and each
individually as a "Sale and Servicing Agreement") and (b) (i) that certain
Insurance and Indemnity Agreement dated as of March 30, 2001 (the "2001-1
Insurance Agreement") among the Insurer, the 2001-1 Issuer, TFCRC IV, TFC, Xxxxx
Fargo, and Xxxxx Fargo Financial, (ii) that certain Insurance and Indemnity
Agreement dated as of March 19, 2002 (the "2002-1 Insurance Agreement") among
the Insurer, the 2002-1 Issuer, TFCRC V, TFC, Xxxxx Fargo and Xxxxx Fargo
Financial and (iii) that certain Insurance and Indemnity Agreement dated as of
October 9, 2002 (the "2002-2 Insurance Agreement") among the Insurer, the 2002-2
Issuer, TFCRC VI, TFC, Xxxxx Fargo and Solutions (the 2001-1 Insurance
Agreement, 2002-1 Insurance Agreement and 2002-2 Insurance Agreement referred to
herein collectively as the "Insurance Agreements" and each individually as an
"Insurance Agreement").
W I T N E S S E T H:
WHEREAS, the Insurer, the 2001-1 Issuer, TFCRC IV, TFC, Xxxxx Fargo and
Xxxxx Fargo Financial have entered into the 2001-1 SSA and the 2001-1 Insurance
Agreement;
WHEREAS, the Insurer, the 2002-1 Issuer, TFCRC V, TFC, Xxxxx Fargo and
Xxxxx Fargo Financial have entered into the 2002-1 SSA and the 2002-1 Insurance
Agreement;
WHEREAS, the Insurer, the 2002-2 Issuer, TFCRC VI, TFC, Xxxxx Fargo and
Solutions have entered into the 2002-2 SSA and the 2002-2 Insurance Agreement;
WHEREAS, as of the date hereof, the Insurer is the "Controlling Party"
under each of the Sale and Servicing Agreements;
WHEREAS, TFC has informed the Insurer that its parent, TFC Enterprises,
Inc. ("Parent"), which owns 100% of the outstanding stock of TFC, expects to
enter into a merger agreement (the "Merger Agreement") dated as of March 31,
2003 with Consumer Portfolio Services, Inc. and CPS Mergersub, Inc. ("CPS Sub"),
pursuant to which CPS Sub will merge in and to Parent (such merger, if any, the
"TFC Merger Transaction");
WHEREAS, TFC has further informed the Insurer that TFC expects to receive
from its independent accountants, with respect to the audited financial
statements for TFC for fiscal year 2002, an opinion that is qualified as to
going concern (such opinion letter, if any, the "Going Concern Letter");
WHEREAS, the Insurer, as Controlling Party under the Sale and Servicing
Agreements, wishes to waive the Servicer Termination Event under each of the
Sale and Servicing Agreements that may directly result from TFC's receipt of the
Going Concern Letter, if any, to the extent provided herein;
WHEREAS, the occurrence of a Servicer Termination Event under each Sale and
Servicing Agreement constitutes an Insurance Agreement Event of Default under
the related Insurance Agreement;
WHEREAS, the Insurer wishes to waive the Insurance Agreement Event of
Default under each of the Insurance Agreements that will occur as a result of
the Servicer Termination Event referenced above to the extent provided herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
Section 1.01. Defined Terms. For purposes of this Waiver, unless the
context clearly requires otherwise, all capitalized terms which are used but not
otherwise defined herein shall have the respective meanings ascribed to such
terms in the Sale and Servicing Agreements.
Section 1.02. Waiver of Servicer Termination Events and Insurance Agreement
Events of Default.
(a) (i) To the extent that TFC's receipt of the Going Concern Letter,
if any, constitutes a material exception in an audit of TFC which may result in
a material adverse effect on the Noteholders, the Trust Property or the
Controlling Party and thus results in a Servicer Termination Event under Section
10.0(h) of each of the Sale and Servicing Agreements, the Insurer, as
Controlling Party under each of the Sale and Servicing Agreements, subject to
Section 1.02(b) of this Waiver, hereby waives each such Servicer Termination
Event and agrees not to direct the Trustee to take the actions set forth in
Sections 10.2 and 10.3 of the Sale and Servicing Agreement as the result of such
Servicer Termination Event.
(ii) To the extent that the Servicer Termination Event
referred to in Section 1.02(a)(i) of this Waiver occurs under each Sale and
Servicing Agreement and thus causes an Insurance Agreement Event of Default
under Section 6.01(h) of each respective Insurance Agreement, the Insurer,
subject to Section 1.02(b) of this Waiver, hereby waives each such Insurance
Agreement Event of Default and agrees not to exercise the rights and remedies
set forth in Section 6.02(a) of each Insurance Agreement as a result of such
Insurance Agreement Event of Default.
(b) Notwithstanding any contrary provision herein, the waivers
contained in Section 1.02(a) shall be effective only during the period from and
including the date on which TFC delivers a copy of the Going Concern Letter, if
any, to the Insurer, to but excluding the earliest of (i) the date of the
termination of the warehouse facility provided by Westside Funding pursuant to
that certain Amended and Restated Warehouse and Security Agreement dated as of
Xxxxx 00, 0000, (xx) the date of the termination of the loan facility provided
by General Electric Capital Corporation pursuant to that certain Motor Vehicle
Installment Contract Loan and Security Agreement dated as of Xxxxx 00, 0000,
(xxx) the date of the termination of the Merger Agreement pursuant to Section
7.1 thereof, (iv) April 14, 2003, if the Merger Agreement has not been executed
by that date, (v) the date of closing of the TFC Merger Transaction, if such
date is on or before May 31, 2003, and (vi) May 31, 2003, if the TFC Merger
Transaction has not been consummated by that date.
(c) Nothing contained in this Section 1.02 shall constitute a waiver
of any (i) Servicer Termination Event under any provision of any Sale and
Servicing Agreement other than Section 10.01(h) of each Sale and Servicing
Agreement or (ii) Insurance Agreement Event of Default under any provision of
any Insurance Agreement other than Section 6.01(h) of each Insurance Agreement,
in each case, that may arise from a material exception in an audit of TFC which
may result in any material adverse effect on the Noteholders, the Trust Property
or the Controlling Party, other than TFC's receipt of the Going Concern Letter,
if any.
Section 1.03. Conditions Precedent to Waivers.
(a) Each of the waivers set forth in Section 1.02 of this Waiver is
subject to the satisfaction of each of the following conditions precedent: (i)
no breach of any representation, warranty or covenant of TFC, TFCRC IV, TFCRC V,
TFCRC VI, the 2001-1 Issuer, the 2002-1 Issuer or the 2002-2 Issuer
(collectively, the "TFC Parties") set forth in any Transaction Document shall
have occurred and be continuing; (ii) no representation of any TFC Party set
forth in any Transaction Document shall contain any statement that is false or,
in the context in which such statement is made, misleading; (iii) all
information provided to Insurer in connection with the negotiation and execution
of this Waiver shall have been, at the time such information was so provided,
and shall be, as of the date of this Waiver, accurate in all material respects;
and (iv) the TFC Parties have disclosed to the Insurer all facts, events and
occurrences prior to the date of this Waiver that constituted an Servicer
Termination Event or an Insurance Agreement Event of Default.
Section 1.04. Effect of Waiver. In all respects each Sale and Servicing
Agreement and Insurance Agreement remains in full force and effect and, except
as waived pursuant hereto during the period set forth in Section 1.02(b) hereof,
is unchanged.
Section 1.05. Governing Law. This Waiver shall be governed by, and
construed in accordance with, the laws of the State of New York, without regard
to the conflicts of law principles thereof.
Section 1.06. Counterparts. This Waiver may be executed in any number of
counterparts, each of which shall be an original and all of which taken together
shall constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Waiver to be duly
executed by their respective officers thereunto duly authorized, as of the day
first above written.
RADIAN ASSET ASSURANCE INC. (formerly
known as ASSET GUARANTY INSURANCE
COMPANY)
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: VP and Director
Acknowledged and agreed to as of the date first above:
TFC RECEIVABLES CORPORATION IV
TFC RECEIVABLES CORPORATION V
TFC RECEIVABLES CORPORATION VI
By: /s/ Xxxxxx X. Tray
Name: Xxxxxx X. Tray
Title: President
THE FINANCE COMPANY,
individually and as Servicer
By: /s/ Xxxxxx X. Tray
Name: Xxxxxx. G. Tray
Title: President
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION, not in its individual
capacity, but solely as Trust Collateral Agent,
Trustee, P.O. Box Owner and as Back-up Servicer
By: /s/ Xxxxxxx Xxxxx
Name: Xxxxxxx Xxxxx
Title: Corporate Trust Officer
XXXXX FARGO FINANCIAL AMERICA, INC.,
as Successor Servicer
By: /s/ Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: Vice President
XXXXX FARGO FINANCIAL SERVICING
SOLUTIONS, LLC, as Successor Servicer
By: /s/ Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title: Vice President
TFC AUTOMOBILE RECEIVABLES TRUST 2001-1
TFC AUTOMOBILE RECEIVABLES TRUST 2002-1
TFC AUTOMOBILE RECEIVABLES TRUST 2002-2
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as Owner Trustee
By: /s/ Xxxx Xxx Xxxxxxx
Name: Xxxx Xxx Xxxxxxx
Title: Senior Financial Services Officer
