Exhibit
10.6(b)
SECOND AMENDMENT TO AMENDED
AND RESTATED LOAN AGREEMENT
THIS SECOND AMENDMENT TO AMENDED AND
RESTATED LOAN AGREEMENT (this “ Amendment ”) is
made and entered into as of February 1, 2008, 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 (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 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
. Section 5.02(i) of
the Agreement is deleted and replaced with the
following:
“(i)
Stock Redemptions and Distributions .
Borrower will not, and it will not cause or permit any Subsidiary
to, declare or incur any liability to make any Distributions,
provided, however, that so long as no Default or Event of Default
has occurred and is continuing or would be created thereby,
Borrower and Subsidiaries may make Distributions in an aggregate
amount not to exceed Fifty Percent (50%) of Borrower’s
Consolidated Net Income for the previous fiscal year of Borrower
(and for purposes of calculating compliance with this covenant,
those Distributions consisting of the repurchase of the capital
stock of Borrower shall not be included in such calculation). In
addition, so long as no Default or Event of Default has occurred
and is continuing or would be created thereby, Borrower may
repurchase the shares of its capital stock in the aggregate amount
not to exceed 1,000,000 shares.”
3. Costs and Expenses
. Borrower hereby agrees
to reimburse Lender upon demand for all out-of-pocket costs and
expenses (including, without limitation, reasonable
attorneys’ fees and expenses) incurred by Lender in the
preparation, negotiation and execution of this Amendment and any
and all other agreements, documents, instruments and/or
certificates relating to the amendment of Borrower’s existing
credit facilities with Lender. Borrower further agrees to pay or
reimburse Lender for (a) any stamp or other taxes (excluding
income or gross receipts taxes) which may be payable with respect
to the execution, delivery, filing and/or recording of any of the
Transaction Documents and (b) the cost of any filings and
searches, including, without limitation, Uniform Commercial Code
filings and searches. All of the obligations of Borrower under this
paragraph shall survive the payment of the Borrower’s
Obligations and the termination of the Agreement.
4. References to this
Agreement . All
references in the Agreement to “this Agreement” and any
other references of similar import shall henceforth mean the
Agreement as amended by this Amendment.
5. Full For
