Exhibit 10.12
AMENDMENT 2001-1
TO THE
2000 LOAN PURCHASE AND SERVICING AGREEMENT
------------------------------------------
This Amendment (the "Amendment") is entered into as of the 1/st/ day of October,
2001 by and between and First Consumer Credit, L.L.C. ("FCC") Bank One, N.A. a
national banking association ("Bank") and U.S. Home Systems, Inc., a Delaware
corporation ("USHS").
WHEREAS, FCC and the Bank entered into that certain Loan Purchase And
Servicing Agreement (the "Agreement") dated May 11, 2000; and
WHEREAS, FCC and USHS intend to effect a merger of Home Credit Acquisition,
Inc., a Texas corporation, with and into FCC (the "Merger"). Upon consummation
of the Merger, Home Credit Acquisition Inc. shall cease to exist and FCC shall
be the surviving corporation (the "Surviving Company") and a wholly-owned
subsidiary of USHS; and
WHEREAS, as part of the Merger, FCC shall convert from a Texas limited
liability company to a Texas corporation; and
WHEREAS, FCC and the Bank now desire to amend the Agreement pursuant to
Article VIII(A) to reflect their understanding and agreement to the Merger and
its related transactions, and to allow USHS to guaranty the obligations and
responsibilities of FCC.
NOW, THEREFORE, in consideration of covenants and agreements hereinafter
set forth and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, and intending to be legally bound hereby, FCC,
USHS and the Bank hereby agree to the following:
1. Bank and FCC agree to, and approve of, the Merger and its related
transactions.
2. The Agreement is hereby amended by inserting the following clause as
Article II(16) of the Agreement:
FCC agrees that, without the prior approval of Bank, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
will remain as a manager of FCC during the term of this Agreement, to
ensure the continuing standards and quality of origination and
servicing performed on the retail installment contract receivables
subject to the Agreement, in accordance with the standard of care
established between Bank and FCC.
3. FCC and Bank agreement that Article II(15) of the Agreement is hereby
amended as follows, said amendment being indicated by underlined text:
The tangible net worth (per GAAP) of Seller is no less than 1% of the
aggregate of the following calculation (the "Formula"):
---------------
1.00% multiplied by the original Loan Pool principal balance less (ii)
the aggregate amount paid to Buyer for net credit losses after the
Closing Date.
Notwithstanding the foregoing, tangible net worth, for the purpose of
calculating this covenant, will include debt subordinated to Buyer in
a form and substance acceptable to Buyer. FCC agrees that it or its
parent company shall at all times maintain available unrestricted cash
equivalent to the Formula.
4. Bank agrees that FCC's compliance with Article II(15) of the Agreement is
hereby waived until five business days following close of the Merger, but
in no event shall said requirement be waived past October 31, 2001.
5. In all other respects, the Agreement shall be and remain in full force and
effect. Any inconsistencies between this Amendment and the Agreement are to
be resolved in favor of the intentions set forth in this Amendment, except
to the extent that doing so would violate any applicable governmental law
or regulation.
6. USHS agrees to guarantee the performance of FCC, as its wholly-owned
subsidiary, under the Agreement and upon the effectuation of the Merger.
IN WITNESS WHEREOF, the parties have caused their names to be signed hereto by
their respective officers thereunto duly authorized as of the day and year first
above written.
Bank One, N.A., as Bank
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
--------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇., Vice President
First Consumer Credit, L.L.C.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, President
U.S. Home Systems, Inc.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇, President