MENT » Topics » RECITALS

This excerpt taken from the MENT 8-K filed Mar 12, 2009.

RECITALS

WHEREAS, the Company has requested that the Banks agree to certain amendments to the Credit Agreement and the Banks have agreed to such request, subject to the terms and conditions of this Amendment;

This excerpt taken from the MENT 10-Q filed Sep 4, 2008.

RECITALS

WHEREAS, highly competent persons have become more reluctant to serve publicly-held corporations as directors, officers or in other capacities unless they are provided with adequate protection through insurance or adequate indemnification against inordinate risks of claims and actions against them arising out of their service to and activities on behalf of the corporation.

WHEREAS, the Board of Directors of the Company (the “Board”) has determined that, in order to attract and retain qualified individuals, the Company will attempt to maintain on an ongoing basis, at its sole expense, liability insurance to protect persons serving the Company and its subsidiaries from certain liabilities. Although the furnishing of such insurance has been a customary and widespread practice among U.S.-based corporations and other business enterprises, the Company believes that, given current market conditions and trends, such insurance may be available to it in the future only at higher premiums and with more exclusions. At the same time, directors, officers and other persons in service to corporations or business enterprises are being increasingly subjected to expensive and time-consuming litigation relating to, among other things, matters that traditionally would have been brought only against the Company or business enterprise itself. The Company’s amended and restated articles of incorporation (the “Articles”) permit, and the Company’s bylaws (the “Bylaws”) require, indemnification of the officers and directors of the Company. Indemnitee may also be entitled to indemnification pursuant to applicable provisions of the Oregon Business Corporation Act (the “Act”). The Articles, Bylaws and the Act expressly provide that the indemnification provisions set forth therein are not exclusive, and thereby contemplate that contracts may be entered into between the Company and members of the board of directors, officers and other persons in order to protect such persons against claims and expenses arising from their services on behalf of the Company.

WHEREAS, the uncertainties relating to such insurance and to indemnification have increased the difficulty of attracting and retaining such persons.

WHEREAS, the Board has determined that the increased difficulty in attracting and retaining such persons is detrimental to the best interests of the Company’s stockholders and that the Company should act to assure such persons that there will be increased certainty of such protection in the future.

WHEREAS, it is reasonable, prudent and necessary for the Company contractually to obligate itself to indemnify, hold harmless, exonerate and to advance expenses on behalf of, such persons to the fullest extent permitted by applicable law so that they will serve or continue to serve the Company free from undue concern that they will not be so protected against liabilities.

WHEREAS, this Agreement is a supplement to and in furtherance of the Bylaws of the Company and any resolutions adopted pursuant thereto, and shall not be deemed a substitute therefor, nor to diminish or abrogate any rights of Indemnitee thereunder.

WHEREAS, Indemnitee does not regard the protection available under the Bylaws and liability insurance as adequate in the present circumstances, and may not be willing to serve as an employee or director without adequate protection, and the Company desires Indemnitee to serve in such capacity. Indemnitee is willing to serve, continue to serve and to take on additional service for or on behalf of the Company on the condition that he be so indemnified.

These excerpts taken from the MENT 8-K filed Apr 25, 2008.

RECITALS

WHEREAS, the Company has requested that the Banks agree to certain amendments to the negative covenants set forth in the Credit Agreement as set forth below and the Banks have agreed to such request, subject to the terms and conditions of this Amendment;

RECITALS

WHEREAS, the Company has requested that the Banks agree to certain amendments to (i) extend the Revolving Termination Date set forth in the Credit Agreement and (ii) provide the Company with the right to increase the Commitments upon certain terms, in each case as set forth below, and the Banks have agreed to such request, subject to the terms and conditions of this Amendment;

This excerpt taken from the MENT 10-Q filed Jun 8, 2007.

RECITALS

WHEREAS, the Company has requested that the Banks agree to certain amendments to the negative covenants set forth in the Credit Agreement as set forth below and the Banks have agreed to such request, subject to the terms and conditions of this Amendment;

NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants herein contained, the parties hereto agree as follows:

 

  Section 1. AMENDMENTS TO THE CREDIT AGREEMENT

 

1.1 Amendment to Credit Agreement

The Credit Agreement and the Annexes thereto are hereby amended by deleting the word “calendar” each time it appears therein (other than in the definitions of “Interest Payment Date”, “Interest Period” and “Multiemployer Plan” and Sections 2.09(b) and 10.07) and substituting the word “fiscal” therefor.

 

1.2 Amendment to Article I: Definitions

Section 1.01 of the Credit Agreement is hereby amended by deleting the definition of “Consolidated EBITDA” contained therein and substituting the following therefor:

Consolidated EBITDA” means, with respect to the Company and its Subsidiaries on a consolidated basis for any rolling four-fiscal quarter period, Consolidated Net Income for such period plus, to the extent deducted in computing such net income, the sum of (a) income tax expense, (b) interest expense, and (c) depreciation and amortization expense, all as determined in accordance with GAAP; provided that for the fiscal periods ending January 31, 2007, April 30, 2007, July 31, 2007 and October 31, 2007, Consolidated EBITDA shall be deemed to be Consolidated Net Income for the thirteen-month period ended on such date plus, to the extent deducted in computing such net income, the sum of (a) income tax expense, (b) interest expense, and (c) depreciation and amortization expense, all as determined in accordance with GAAP divided by 13 and multiplied by 12.

 

1.3 Amendment to Article 7: Negative Covenants

Sections 7.14(a), (b), (c), (d) and (e) of the Credit Agreement are hereby amended by deleting them in their entirety and substituting the following therefor:

“(a) Adjusted Quick Ratio. The Company shall not as of the end of any fiscal quarter suffer or permit its ratio (determined in respect of the Company and its Subsidiaries on a consolidated basis) of (i) cash


plus the value (valued in accordance with GAAP) of all Cash Equivalents plus net current accounts receivable (valued in accordance with GAAP), less Restricted Amounts, to (ii) Consolidated Current Liabilities (excluding all liabilities that will be satisfied by Restricted Amounts) (the “Adjusted Quick Ratio”), to be less than 0.75 to 1.00. If on or prior to the end of any fiscal quarter, the Company has repaid, repurchased, redeemed or otherwise retired Subordinated Indebtedness in an aggregate amount (for all such repayments, repurchases, redemptions and other retirements since the Closing Date) equal to or greater than (i) $37,500,000 but less than $75,000,000 with cash on hand (other than cash on hand that constitutes, or is replaced by, Offset Proceeds) or the proceeds of Senior Indebtedness, then the minimum Adjusted Quick Ratio as of the end of such fiscal quarter shall be increased by 0.05; or (ii) $75,000,000 with cash on hand (other than cash on hand that constitutes, or is replaced by, Offset Proceeds) or the proceeds of Senior Indebtedness, then the minimum Adjusted Quick Ratio as of the end of such fiscal quarter shall be increased by 0.10. For purposes of this paragraph, “Offset Proceeds” shall mean Net Cash Issuance Proceeds from an issuance of new equity or new Subordinated Indebtedness consummated within 120 days before or after the date of such repayment, repurchase, redemption or other retirement of Subordinated Indebtedness; provided that (x) with respect to any fiscal quarter which ends during such 120-day period, if the Company has delivered written notice that it intends to issue new equity or new Subordinated Indebtedness within such 120-day period, then the increase in the minimum Adjusted Quick Ratio shall not apply to such fiscal quarter, and (y) if sufficient new equity or new Subordinated Indebtedness is not issued during such 120-day period then the increase in the minimum Adjusted Quick Ratio shall be retroactively applicable as of the end of each fiscal quarter during such 120-day period.

(b) Minimum Tangible Net Worth. The Company shall not as of the end of any fiscal quarter permit Consolidated Tangible Net Worth to be less than the sum of (i) $30,000,000, plus (ii) for each fiscal quarter commencing with the fiscal quarter ending March 31, 2005 (to the extent Consolidated Net Income for any such fiscal quarter is positive), 70% of Consolidated Net Income for such fiscal quarter, plus (iii) 100% of the amortization of intangible assets for each fiscal quarter commencing with the fiscal quarter ending March 31, 2005, plus (iv) 100% of the Net Issuance Proceeds of any new equity issued by the Company after December 31, 2004 (excluding (A) equity issued under employee stock option or purchase plans and (B) equity issued to finance an Acquisition, provided that such amount is in fact applied to transaction costs relating to such Acquisition and such Acquisition is consummated no later than 120 days after the date of such issuance), minus (v) goodwill and other intangibles arising during such fiscal quarter from Acquisitions permitted pursuant to Section 7.04, minus (vi) without duplication, the lesser of (A) the actual goodwill and other intangibles arising from cash Acquisitions consummated during the period from January 1, 2005 through the Closing Date and (B) $30,000,000; provided that (A) for purposes of clauses (ii) and (iii) above, the fiscal quarter ended January 31, 2007 shall be deemed to be the period commencing on January 1, 2007 and ending on January 31, 2007, (B) the aggregate amount of goodwill and other intangibles excluded under clause (v) above in connection with any Acquisition shall be the product of (1) the Net Cash Consideration given in respect of such Acquisition divided by the total fair market value of all cash and non-cash consideration given in respect of such Acquisition multiplied by (2) the aggregate amount of all goodwill and other intangibles acquired in such Acquisition, and (C) the aggregate amount of all goodwill and other intangibles excluded under clause (v) above in any fiscal year shall in no case exceed the amount of Net Cash Consideration permitted to be given in respect of Acquisitions in such fiscal year under Section 7.04(d)(i).

(c) Leverage Ratio. The Company shall not as of the end of any fiscal quarter suffer or permit the Leverage Ratio to be greater than 2.20 to 1.00.

(d) Senior Leverage Ratio. The Company shall not as of the end of any fiscal quarter suffer or permit the Senior Leverage Ratio to be greater than 0.90 to 1.00.

(e) Minimum Cash and Accounts Receivable. The Company shall not as of the end of any fiscal quarter suffer or permit its ratio (determined on a consolidated basis) of (i) cash plus the value (valued in accordance with GAAP) of all Cash Equivalents plus 47.5% of current accounts receivable (valued in accordance with GAAP), less Restricted Amounts, to (ii) the then outstanding principal amount of the Loans, to be less than 1.25 to 1.00. “

 

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1.4 Amendments to Exhibits

Exhibit C to the Credit Agreement is hereby deleted and Annex I hereto substituted therefor.

This excerpt taken from the MENT 10-Q filed Aug 8, 2006.

RECITALS

WHEREAS, the Company has requested a change in the Disposition of Assets covenant set forth in Section 7.02(d) of the Credit Agreement; and

WHEREAS, for this purpose, the Company has requested that the Majority Banks agree to certain amendments to the Credit Agreement as set forth below and the Majority Banks have agreed to such request, subject to the terms and conditions of this Amendment;

This excerpt taken from the MENT 10-K filed Mar 15, 2006.

RECITALS

WHEREAS, the Company has requested a change in the Adjusted Quick Ratio covenant set forth in Section 7.14(a) of the Credit Agreement; and

WHEREAS, for this purpose, the Company has requested that the Majority Banks agree to certain amendments to the Credit Agreement as set forth below and the Majority Banks have agreed to such request, subject to the terms and conditions of this Amendment;

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