Exhibit
10.6(e)
FIFTH AMENDMENT TO AMENDED AND
RESTATED LOAN AGREEMENT
THIS FIFTH AMENDMENT TO AMENDED AND
RESTATED LOAN AGREEMENT (this “ Amendment ”) is
made and entered into as of January 26, 2009, by and between
HENNESSY ADVISORS, INC. , a California corporation (“
Borrower ”), and U.S. BANK NATIONAL ASSOCIATION
, a national banking association (“ Lender ”),
and has reference to the following facts and circumstances (the
“ Recitals ”):
A. Borrower and Lender entered into
the Amended and Restated Loan Agreement dated as of July 1,
2005, as amended by the First Amendment to Amended and Restated
Loan Agreement dated as of February 1, 2007, the Second
Amendment to Amended and Restated Loan Agreement dated as of
February 1, 2008, the Third Amendment to Amended and Restated
Loan Agreement dated as of June 25, 2008, and the Fourth
Amendment to Amended and Restated Loan Agreement dated as of
September 20, 2008 (as amended, the “ Agreement
”; all capitalized terms used and not otherwise defined in
this Amendment shall have the respective meanings ascribed to them
in the Agreement as amended by this Amendment).
B. Borrower has requested another
amendment to the Agreement as described below, and Lender has
agreed to further amend the Agreement in the manner hereinafter set
forth.
NOW, THEREFORE, in consideration of
the premises and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Borrower
and Lender hereby agree as follows:
1. Recitals .
The Recitals are true and correct,
and, together with the defined terms set forth therein, are
incorporated herein by this reference.
2. Amendment to Agreement
. The Agreement is
amended as follows:
(a) The definition of
“Consolidated Fixed Charge Coverage Ratio”
in Section 1.01 of the Agreement is deleted and replaced with
the following:
“
Consolidated Fixed Charge Coverage Ratio
shall mean, for the period in question, the ratio of:
(a) Consolidated EBITDA during such period minus the
sum of Borrower’s and its Subsidiaries’
(i) Capital Expenditures, (ii) income taxes paid or
payable, and (iii) Distributions (to be included in this
calculation at all times that either (A) a Default or Event of
Default has occurred and is outstanding, or (B) the
Unrestricted Cash Ratio is less than 1.5 to 1.0); to
(b) Consolidated Fixed Charges during such period, all
determined on a consolidated basis and in accordance with
GAAP.”
(b) The last sentence of
Section 1.01 of the Agreement is deleted and replaced with the
following:
“The principal balance of the
Loan shall be due and payable in sixty-six (66) consecutive
monthly installments as follows: (a) one (1) installment
in the amount of Ninety Four Thousand Sixty and 00/100 Dollars
($94,060.00), due and payable on July 10, 2005;
(b) forty-four (44) equal consecutive monthly
installments,
each in the amount
of One Hundred Seventy Four Thousand Two Hundred Nine and 69/100
Dollars ($174,209.69), due and payable on the first day of each
month, commencing on August 1, 2005; (c) twenty
(20) equal consecutive monthly installments, each in the
amount of Sixty Eight Thousand Seven Hundred Fifty and 00/100
Dollars ($68,750.00), due and payable on the first day of each
month, commencing on February 1, 2009; and (d) the
sixty-sixth (66 th ) and final installment in
the amount of the then outstanding and unpaid principal balance of
the Loan due and payable on September 30,
2010.”
3. Amendment to Note
. The first paragraph on
page 1 of the Note is deleted and replaced with the
following:
“FOR VALUE
RECEIVED, the undersigned, HENNESSY ADVISORS, INC. , a
California corporation (“ Borrower ”), hereby
promises to pay to the order of U.S. BANK NATIONAL
ASSOCIATION , a national banking association (“
Lender ”), the principal sum of Thirteen Million Two
Hundred Twenty Two Thousand Seven Hundred Twenty One and 85/100
Dollars ($13,222,721.85) in sixty-six (66) consecutive monthly
installments as follows: (a) one (1) installment in the
amount of Ninety Four Thousand Sixty and 00/100 Dollars
($94,060.00), due and payable on July 10, 2005;
(b) forty-four (44) equal consecutive monthly
installments, each in the amount of One Hundred Seventy Four
Thousand Two Hundred Nine and 69/100 Dollars ($174,209.69), due and
payable on the first day of each month, commencing on
August 1, 2005; (c) twenty (20) equal consecutive
monthly installments, each in the amount of Sixty Eight Thousand
Seven Hundred Fifty and 00/
