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Exhibit 4.4
AMENDMENT NO. 12 TO
LOAN AND SECURITY AGREEMENT
This Amendment No. 12 ("Amendment") to Loan and Security Agreement
is made as of March 14, 2001, between Rainbow Rentals, Inc. (formerly known as
Rainbow Home Rentals, Inc.) ("Borrower") and Bank of America, N.A. (formerly
known as Bank of America National Trust and Savings Association, formerly known
as Bank of America Illinois, formerly known as Continental Bank N.A.)
("Lender").
Reference is made to that certain Loan and Security Agreement
between Borrower and Lender dated October 5, 1992 (as amended, the "Loan
Agreement").
Borrower has requested that the Loan Agreement be amended in certain
respects.
1. DEFINED TERMS. Unless otherwise defined herein, capitalized terms
used herein shall have the meanings ascribed to such terms in the Loan
Agreement.
2. AMENDMENT TO LOAN AGREEMENT. Section 4.3 of Supplement A to the
Loan Agreement is hereby amended effective as of September 29, 2000, as follows:
4.3 MAXIMUM FUNDED DEBT TO EARNINGS RATIO. Not permit, for the
period ending on the last day of each calendar quarter ending during any
period (inclusive) set forth below, the ratio of (a) Borrower's
Indebtedness for interest bearing borrowed money on the last day of each
such calendar quarter during such period set forth below PLUS the product
of rental expenses for the twelve month period ending on the last day of
such calendar quarter multiplied by a factor of 4 to (b) the product of
(i) the Annualizing Factor multiplied by (ii) Borrower's consolidated net
earnings before interest expense, provision for Taxes, depreciation and
amortization for such twelve month period PLUS rental expenses MINUS the
sum of inventory purchases and Capital Expenditures for such period, to be
greater than the ratio set forth below opposite such period:
Period Maximum Ratio
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Calendar quarter ending June 30, 1999 3.25 : 1.00
Six month period ending September 30, 1999 3.25 : 1.00
Nine month period ending December 31, 1999 3.25 : 1.00
Twelve month period ending March 31, 2000 and June 30, 2000 3.00 : 1.00
Twelve month period ending September 30, 2000 and December 31, 3.15 : 1.00
2000
Twelve month period ending March 31, 2001 and the twelve month 2.75 : 1.00
period ending on the last day of each calendar quarter thereafter
For purposes of this SECTION 4.3 and SECTION 4.4, (i) consolidated net
earnings shall not include any gains on the sale or other disposition
of Investments of fixed assets and any extraordinary or nonrecurring
items of income to the extent that the aggregate of all such gains and
extraordinary or nonrecurring items of income exceeds the aggregate of
losses on such sale or other disposition and extraordinary or
nonrecurring charges, and (ii) interest expense shall include, without
limitation, implicit interest expense on Capitalized Leases, and shall
exclude the amortization of the closing fee, the modification fee, or
any other fee paid to Lender in connection with the Loans. The
Annualizing Factor means a factor of 4.0 for the period ending June 30,
1999, a factor of 2.0 for
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the period ending September 30, 1999, a factor of 1.33 for the
period ending December 31, 1999 and a factor of 1.0 for each period
ending on or after March 31, 2000.
3. CONDITION PRECEDENT. The amendment to the Loan Agreement set
forth in this Amendment shall become effective as of the date of this Amendment
upon the satisfaction of the following condition precedent:
(a) EXECUTION. The delivery of an executed copy of this Amendment to
Lender.
4. MISCELLANEOUS.
(a) EXPENSES. Borrower agrees to pay on demand all costs and
expenses of Lender (including the reasonable fees and expenses of outside
counsel for Lender) in connection with the preparation, negotiation, execution,
delivery and administration of this Amendment and all other instruments or
documents provided for herein or delivered or to be delivered hereunder or in
connection herewith. In addition, Borrower agrees to pay, and save Lender
harmless from all liability for, any stamp or other taxes which may be payable
in connection with the execution or delivery of this Amendment, the borrowings
under the Loan Agreement, as amended hereby, and the execution and delivery of
any instruments or documents provided for herein or delivered or to be delivered
hereunder or in connection herewith. All obligations provided in this SECTION
4(a) shall survive any termination of this Amendment or the Loan Agreement as
amended hereby.
(b) GOVERNING LAW. This Amendment shall be a contract made under and
governed by the internal laws of the State of Illinois.
(c) COUNTERPARTS. This Amendment may be executed in any number of
counterparts, and by the parties hereto on the same or separate counterparts,
and each such counterpart, when executed and delivered, shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same Amendment.
(d) REFERENCE TO LOAN AGREEMENT. Except as herein amended, the Loan
Agreement shall remain in full force and effect and is hereby ratified in all
respects. On and after the effectiveness of the amendments to the Loan Agreement
accomplished hereby, each reference in the Loan Agreement to "this Agreement,"
"hereunder," "hereof," "herein" or words of like import, and each reference to
the Loan Agreement in any note and in any Related Agreements, or other
agreements, documents or other instruments executed and delivered pursuant to
the Loan Agreement, shall mean and be a reference to the Loan Agreement, as
amended by this Amendment.
(e) SUCCESSORS. This Amendment shall be binding upon Borrower,
Lender and their respective successors and assigns, and shall inure to the
benefit of Borrower, Lender and the successors and assigns of Borrower and
Lender.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed by their respective officers thereunto duly authorized and delivered
at Chicago, Illinois as of the date first above written.
RAINBOW RENTALS, INC.
By /e/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Its Chief Financial Officer
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BANK OF AMERICA, N.A.
By /e/ ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
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Its Senior Vice President
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