Guarantor cover. (a) The Company must also ensure that, at any time prior to the occurrence of the Trigger Event, the turnover of the Guarantors contribute at any time 70 per cent., or more of the turnover of the Group at that time.
(b) For the purpose of paragraph (a) above:
(i) subject to sub-paragraph (ii) below:
(A) the contribution of each Guarantor will be determined from its financial statements which were consolidated into the latest audited consolidated financial statements of the Company; and
(B) the financial condition of the Group will be determined from the latest audited consolidated financial statements of the Company;
(ii) if a person becomes a member of the Group after the date on which the latest audited consolidated financial statements of the Company were prepared:
(A) the contribution of that person will be determined from its latest financial statements; and
(B) the financial condition of the Group will still be determined from the latest audited consolidated financial statements of the Company but will be adjusted to take into account that person becoming a member of the Group; and
(iii) the contribution of a Guarantor will:
(A) if it has Subsidiaries, be determined from its unconsolidated financial statements; and
(B) exclude intra-group items which would be eliminated in the consolidated financial statements of the Company. For the purpose of this Subclause 21.5 (Guarantor Cover), from the date of this Agreement until the later of (A) the date falling six months after the date of this Agreement and (B) the date falling 10 Business Days after the Offer Closing Date, the term Group shall mean the Purchaser Group.
Guarantor cover. (a) Subject to Clause 25.4 (Additional Guarantors), the Company must ensure that, from the first Utilisation Date, the aggregate gross assets, turnover, and EBIT, of the Guarantors are not at any time less then 90 per cent. of aggregate gross assets, turnover, and EBIT of the Group at that time. For the avoidance of doubt the gross assets, turnover or EBIT of the Parent shall not be taken into account under this Clause 21.2(a).
(b) For the purpose of this Clause 21.2:
(i) the turnover and profits before interest and taxation of a Guarantor will be determined from its financial statements (unconsolidated if it has Subsidiaries) based upon which the latest audited financial statements of the Group have been prepared; and
(ii) if a company becomes a Guarantor after the date on which the latest audited financial statements of the Group have been prepared, the gross assets, turnover and profits before interest and taxation of that Guarantor will be determined from its latest financial statements.
Guarantor cover. (a) The Company must ensure that the aggregate net assets, turnover and Adjusted EBITDA of the Guarantors are not at any time less than 90 per cent. of the total net assets, turnover or Consolidated Adjusted EBITDA of the Group.
(b) For the purpose of this Clause:
(i) the net assets, turnover and Adjusted EBITDA of a Guarantor will be determined from its financial statements (unconsolidated if it has Subsidiaries) based upon which the latest audited consolidated annual financial statements of the Group have been prepared;
(ii) if a company becomes a Guarantor after the date on which the latest audited consolidated annual financial statements of the Group have been prepared, the net assets, turnover and Adjusted EBITDA of that Guarantor will be determined from its latest financial statements; and
(iii) the net assets, turnover and Consolidated Adjusted EBITDA of the Group will be determined from its latest audited consolidated annual financial statements, adjusted (where appropriate) (A) to reflect the gross assets and Adjusted EBITDA of any company or business which has subsequently been disposed of or acquired and (B) by deducting the contribution to such net assets, turnover and Consolidated Adjusted EBITDA of the Excluded Companies.
Guarantor cover. (a) If the aggregate gross assets or profits before interest, Tax and exceptional or extraordinary items ("EBIT") of the Guarantors (excluding intra-Group items) are at any time less than 75 per cent. of the total gross assets or EBIT (as applicable) of the Group at that time, then within 14 days of becoming aware of this fact the Company must ensure that sufficient Additional Guarantor(s) accede to this Agreement to ensure that the aggregate gross assets or EBIT of the Guarantors (excluding intra-Group items) are not less than 75 per cent. of the total gross assets or EBIT of the Group at that time.
(b) For the purpose of this Clause:
(i) the gross assets or EBIT of a Guarantor will be determined from the accounting records of the Group upon which the latest audited financial statements of the Group have been based;
(ii) if a company becomes a Guarantor after the date on which the latest audited financial statements of the Group have been prepared, the gross assets or EBIT of that Guarantor will be determined from its latest financial statements;
(iii) the gross assets or EBIT of the Group will be determined from its latest audited financial statements, adjusted (where appropriate) to reflect the gross assets or EBIT of any company or business which has been subsequently disposed of or acquired; and
(iv) gross assets does not include goodwill.
(c) Each Additional Guarantor must accede to the Agreement in accordance with Clause 32.6 subject, for the avoidance of doubt, to Clause 32.6(e)) (Additional Obligors), including providing security over its assets by the execution and delivery of Security Documents as listed in Part III of Schedule 2 (Conditions precedent documents).
Guarantor cover. (a) If the aggregate gross assets or profits before interest, Tax and exceptional or extraordinary items (“EBIT”) of the Guarantors (excluding intra-Group items) are at any time less than 75 per cent. of the total gross assets or EBIT (as applicable) of the Group at that time, then within 14 days of becoming aware of this fact the Company must ensure that sufficient Additional Guarantor(s) accede to this Agreement to ensure that the aggregate gross assets or EBIT of the Guarantors (excluding intra-Group items) are not less than 75 per cent. of the total gross assets or EBIT of the Group at that time.
(b) For the purpose of this Clause:
(i) the gross assets or EBIT of a Guarantor will be determined from the accounting records of the Group upon which the latest audited financial statements of the Group have been based;
(ii) if a company becomes a Guarantor after the date on which the latest audited financial statements of the Group have been prepared, the gross assets or EBIT of that Guarantor will be determined from its latest financial statements;
(iii) the gross assets or EBIT of the Group will be determined from its latest audited financial statements, adjusted (where appropriate) to reflect the gross assets or EBIT of any company or business which has been subsequently disposed of or acquired; and
(iv) gross assets does not include goodwill.
(c) Each Additional Guarantor must accede to the Agreement in accordance with Clause 32.6 subject, for the avoidance of doubt, to Clause 32.6(e)) (Additional Obligors), including providing security over its assets by the execution and delivery of Security Documents as listed in Part III of Schedule 2 (Conditions precedent documents).
Guarantor cover. The Company must ensure that each of its Wholly Owned Domestic Material Subsidiaries becomes a Guarantor within 30 days of it becoming a Wholly Owned Domestic Material
Guarantor cover. (a) Subject to paragraph (b) below, the Company shall procure that:
(i) at all times, the aggregate gross assets of the Guarantors and the aggregate EBITDA of the Guarantors (without double-counting and excluding any debts and dividends due from any member of the Group to that Guarantor and any shares of any member of the Group owned by that Guarantor) exceed 90 per cent, of the gross assets of the Group (other than Xxxxxxxxx and its Subsidiaries) and 90 per cent. of the Consolidated EBITDA of the Group (other than Xxxxxxxxx and its Subsidiaries) respectively (if necessary by procuring that a Subsidiary delivers to the Agent a Guarantor Accession Agreement duly executed by that Subsidiary); and
(ii) each company which becomes a Principal Subsidiary after the date of this Agreement becomes a Guarantor by delivering to the Agent a Guarantor Accession Agreement duly executed by that Principal Subsidiary.
(b) For the purposes of paragraph (a) above, the gross EBITDA assets and EBITDA of each Guarantor and the Group shall be calculated by reference to its latest audited or last annual accounts (consolidated in the case of the Group).
(c) Upon execution and delivery of a Guarantor Accession Agreement by a Subsidiary that Subsidiary will become an Additional Guarantor.
(d) The Company shall procure that, at the same time as a Guarantor Accession Agreement is delivered to the Agent, there is also delivered to the Agent all those other documents listed in Part 4 of Schedule 2, in each case in form and substance satisfactory to the Agent.
(e) If the Company demonstrates to the satisfaction of the Agent that it is unlawful for the Company to comply with its obligations under paragraph (a) above, the Company shall only be obliged so to comply within 14 days after it becomes legal to do so.
(f) The execution of a Guarantor Accession Agreement constitutes confirmation by the Subsidiary that the representations and warranties set out in Clause 17 (Representations and Warranties) to be made by it on the date of the Guarantor Accession Agreement are correct, as if made with reference to the facts and circumstances then existing.
Guarantor cover. (a) The Company must ensure that the aggregate gross assets, EBIT and net revenue of the Guarantors contribute to at any time 90 per cent. or more of the aggregate gross assets, Consolidated EBIT and net revenue of the Group at that time.
(b) The Company must ensure that all parties to any Funded Shareholder Loan (other than a member of the Onshore Group) shall be a Guarantor.
(c) For the purpose of paragraph (a) above:
(i) EBIT has the same meaning given to the term “Consolidated EBIT” except that references to “Restricted Group” in the definition of “Consolidated EBIT” shall be deemed to refer to the relevant Guarantor and its Subsidiaries;
Guarantor cover. (a) If the aggregate gross assets, consolidated turnover, or Consolidated Earnings Before Interest and Tax (determined pursuant to Clause 21 (Financial Covenants)) of the Guarantors (excluding intra-Group items) are at any time less than 75 per cent. of the gross assets, consolidated turnover or Consolidated Earnings Before Interest and Tax of the Group at that time, then within 30 days of becoming aware of this fact the Company shall procure that sufficient Additional Guarantors accede to this Agreement in accordance with Clause 25.2 (Additional Guarantors) to ensure that after such accession the aggregate, gross assets, consolidated turnover and Consolidated Earnings Before Interest and Tax of the Guarantors (excluding intra-Group items) are not less than 75 per cent. of the gross assets, consolidated turnover and Consolidated Earnings Before Interest and Tax of the Group at such time.
(b) For the purpose of this Clause:
(i) gross assets, consolidated turnover and Consolidated Earnings Before Interest and Tax will be determined from the most recently financial statements delivered pursuant to Clause 20 (Information undertakings);
(ii) if a company becomes a member of the Group after the latest audited financial statements of the Group have been prepared the gross assets, consolidated turnover or Consolidated Earnings Before Interest and Tax of that Company shall be determined from its latest financial statements;
(iii) the gross assets, consolidated turnover or Consolidated Earnings Before Interest and Tax of the Group will be determined from the latest financial statements of the Group delivered pursuant to Clause 20 (Information undertakings) adjusted to reflect the disposal of any company disposed of or acquired after the date of such financial statements; and
(iv) gross assets does not include goodwill.
Guarantor cover. The Noteholders shall have received evidence in form and substance satisfactory thereto of compliance as of the Effective Date with the terms of Section 9.9 of the Amended and Restated Note Purchase Agreements as measured on the basis of the EBITDA shown on accounts provided by the Company for the period ending October 31, 2003.
