The following excerpt is from the company's SEC filing.
THIS THIRD AMENDMENT
TO TERM LOAN AGREEMENT (this “
”) is made and entered into as of November 30, 2017 (the “
”), by and between HENNESSY ADVISORS, INC., a California corporation (“
”), Lenders from
time to time party to the Agreement (defined below), and U.S. BANK NATIONAL ASSOCIATION, a national banking association, as Administrative
”); and has reference to the following facts and circumstances (the “
Lenders and Agent executed the Term Loan Agreement dated as of September 17, 2015, the First Amendment to Term Loan Agreement dated
as of September 19, 2017 and the Second Amendment to Term Loan Agreement dated as of November 21, 2017 (as previously
amended and as amended by this Amendment, the “
”; 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 and prior amendments).
Lenders and Agent agree to further amend the Agreement as set forth below.
NOW, THEREFORE, in
consideration of the premises and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
Borrower, Lenders and Agent hereby agree as follows:
The Recitals are true and correct, and, together with the defined terms set forth therein, are incorporated herein by this reference.
As of the Effective Date, the Agreement is amended as follows:
following definition of “Rainier Acquisition” is added to Section 1.01 of the Agreement (in the correct alphabetical
shall mean the Acquisition by Borrower of the Purchased Assets (as defined therein) of Rainer Investment Management, LLC (“
as described in the Transaction Agreement dated as of May 10, 2017, executed by Borrower, Seller, and Manning & Napier Group,
LLC (the “
following is added to the end of Section 5.02(l):
Notwithstanding anything to the
contrary in this Agreement, Borrower may consummate the Rainier Acquisition as long as (1) no Default or Event of Default has occurred
and is outstanding, (2) Borrower provides Agent with evidence reasonably acceptable to Agent that the conditions described in Section
5.02(l)(i), 5.02(l)(ii), 5.02(l)(iii) and 5.02(l)(iv) have been complied with, (3) the Rainier Acquisition may be consummated in
two parts as long as the entire Rainier Acquisition is closed no later than February 28, 2018 and (4) the Purchase Price (as
defined in the Rainier Agreement) does not exceed $4,000,000. The Rainier Acquisition shall be disregarded with respect to future
Acquisitions for purposes of clauses (vi) and (vii) above.
. Borrower hereby agrees to reimburse Agent upon demand for all out-of-pocket costs and expenses (including, without
limitation, Attorneys’ Fees) 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 Agent and Lenders: (a) for 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) for the cost of any filings and searches, including, without limitation, Uniform Commercial
Code filings and searches. All of the obligations of Borrower under this Section 3 shall survive the payment of Borrower’s
Obligations, the Maturity Date, and the termination of the Agreement.
to the Agreement
. All references in the Agreement to “this Agreement”, “the Agreement” and any other
references of similar import shall mean the Agreement as previously amended and as amended by this Amendment.
Force and Effect
. Except to the extent specifically amended by this Amendment, all of the terms, provisions, conditions, covenants,
representations and warranties contained in the Agreement and the other Transaction Documents shall be and remain in full force
and effect and the same are hereby ratified and confirmed.
The Agreement and the other Transaction Documents shall be binding upon and inure to the benefit of Borrower, Lenders, Agent and
their respective successors and assigns, except that Borrower may not assign, transfer or delegate any of its rights or obligations
under the Agreement and the other Transaction Documents as amended by this Amendment.
. Borrower hereby represents and warrants to Lenders and Agent that:
execution, delivery and performance by Borrower of this Amendment are within the corporate powers of Borrower, have been duly authorized
by all necessary corporate action on the part of Borrower and require no action by or in respect of, consent of or filing or recording
with, any governmental or regulatory body, instrumentality, authority, agency or official or any other Person;
execution, delivery and performance by Borrower of this Amendment do not conflict with, or result in a breach of the terms, conditions
or provisions of, or constitute a default under or result in any violation of, the terms of the Articles of Incorporation or the
Second Amended and Restated Bylaws of Borrower, any applicable Laws, order, writ, judgment or decree of any court or Governmental
Authority or any agreement, document or instrument to which Borrower is a party or by which Borrower or any of its Property is
bound or to which Borrower or any of its Property is subject;
Amendment has been duly executed and delivered by Borrower and constitutes the legal, valid and binding obligation of Borrower
enforceable against Borrower in accordance with its terms, except as such enforceability may be limited by (i) bankruptcy, insolvency
or other similar Laws affecting creditors’ rights generally and (ii) general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law);
of the representations and warranties made by Borrower in the Agreement and in the other Transaction Documents are true and correct
in all material respects on and as of the Effective Date as if made on and as of the Effective Date except to the extent any such
representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty shall have
been true or correct in all material respects on and as of such earlier date;
Default or Event of Default under or within the meaning of the Agreement has occurred and is continuing; and
has been no change in the financial condition or results of operations of Borrower since September 30, 2017, which had a Material
In the event of any inconsistency or conflict between this Amendment and the Agreement, the terms, provisions and conditions contained
in this Amendment shall govern and control.
. This Amendment shall be governed by and construed in accordance with the substantive laws of the State of Missouri (without
reference to conflict of law principles) but giving effect to Federal laws applicable to national banks.
. Borrower acknowledges the receipt of copies of the Agreement, the Note, this Amendment and all other Transaction Documents.
Lender may, on behalf of Borrower, create a microfilm or optical disk or other electronic image of the Agreement, the Note, this
Amendment and any or all of the Transaction Documents. Lender may store the electronic image of the Agreement, the Note, this Amendment
and any other Transaction Document in its electronic form and then destroy the paper original as part of Lender’s normal
business practices, with the electronic image deemed to be an original.
Required by Section 432.047 R.S. Mo.
ORAL OR UNEXECUTED AGREEMENTS OR COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR TO FORBEAR
FROM ENFORCING REPAYMENT OF A DEBT INCLUDING PROMISES TO EXTEND OR RENEW SUCH DEBT ARE NOT ENFORCEABLE, REGARDLESS OF THE LEGAL
THEORY UPON WHICH IT IS BASED THAT IS IN ANY WAY RELATED TO THE CREDIT AGREEMENT. TO PROTECT YOU (BORROWER(S)) AND US (CREDITOR)
FROM MISUNDERSTANDING OR DISAPPOINTMENT, ANY AGREEMENTS WE REACH COVERING SUCH MATTERS ARE CONTAINED IN THIS WRITING, WHICH IS
THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN US, EXCEPT AS WE MAY LATER AGREE IN WRITING TO MODIFY IT.
. Notwithstanding any provision contained in this Amendment to the contrary, this Amendment shall not be effective
unless and until Agent shall have received the following, all in form and substance reasonably acceptable to Agent:
Amendment, duly executed by Borrower;
Certificate of Secretary (with the form of a Unanimous Written Consent Action of the Board of Directors attached thereto), duly
certified by the Secretary of Borrower;
current certificate of good standing for Borrower, issued by the California Secretary of State (or other evidence of good standing
acceptable to Lender); and
other documents and information as reasonably requested by Lender.
Borrower, Lenders and
Agent executed this Amendment as of the Effective Date.
[SIGNATURES ON FOLLOWING PAGE]
THIRD AMENDMENT TO TERM LOAN AGREEMENT
Neil J. Hennessy
and Chief Executive Officer
BANK NATIONAL ASSOCIATION, as Agent and Lender
Karen D. Myers
BANK & TRUST,
division of ZB, N.A., as a Lender
The above information was disclosed in a filing to the SEC. To see the filing, click here.
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Other recent filings from the company include the following:
Statement of acquisition of beneficial ownership by individuals - Nov. 2, 2020
Hennessy Advisors, Inc. Announces Dividend - Oct. 30, 2020