AND ALL AGREEMENTS OF WHATEVER KIND BY, BETWEEN
AND AMONG BORROWER AND THE EQUITY OWNERS OF BORROWER, AND RELATING TO BORROWER'S
EQUITY INTERESTS.
"EQUITY INTERESTS" MEANS ANY AND ALL OWNERSHIP OR OTHER EQUITABLE INTERESTS IN
THE APPLICABLE PERSON, INCLUDING ANY INTEREST REPRESENTED BY ANY CAPITAL STOCK,
MEMBERSHIP INTEREST, PARTNERSHIP INTEREST OR SIMILAR INTEREST, BUT SPECIFICALLY
EXCLUDING ANY INTEREST OF ANY PERSON SOLELY AS A CREDITOR OF THE APPLICABLE
PERSON.
"EQUITY OWNER" MEANS ANY PERSON OWNING AN EQUITY INTEREST.
"EQUITY OWNERS' EQUITY" MEANS, AT ANY TIME, THE SUM OF THE FOLLOWING ACCOUNTS
SET FORTH IN A BALANCE SHEET OF AN APPLICABLE PERSON, ADJUSTED TO U.S. DOLLARS
BY MEANS OF APPLICABLE FOREIGN CURRENCY EXCHANGE RATES AND PREPARED IN
ACCORDANCE WITH GENERALLY ACCEPTED ACCOUNTING PRINCIPLES:
(A)
THE PAR OR STATED VALUE OF ALL OUTSTANDING EQUITY INTERESTS;
(B)
CAPITAL SURPLUS; AND
(C)
RETAINED EARNINGS.
13
"ERISA" MEANS THE FEDERAL EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED AND IN EFFECT FROM TIME TO TIME, AND THE REGULATIONS AND PUBLISHED
INTERPRETATIONS THEREOF.
"ERISA AFFILIATE" MEANS ANY PERSON THAT WOULD BE DEEMED TO BE UNDER "COMMON
CONTROL" WITH, OR A MEMBER OF THE SAME "CONTROLLED GROUP" AS, BORROWER OR ANY OF
ITS SUBSIDIARIES, WITHIN THE MEANING OF THE INTERNAL REVENUE CODE (AS APPLICABLE
TO PLANS) OR ERISA.
"ERISA EVENT" MEANS ANY OF THE FOLLOWING WITH RESPECT TO A PLAN: (I) A
REPORTABLE EVENT, (II) A COMPLETE OR PARTIAL WITHDRAWAL BY BORROWER OR ANY ERISA
AFFILIATE FROM A PLAN THAT RESULTS IN LIABILITY UNDER ERISA, OR THE RECEIPT BY
BORROWER OR ANY ERISA AFFILIATE OF NOTICE FROM A MULTIEMPLOYER PLAN THAT IT IS
IN REORGANIZATION OR INSOLVENCY PURSUANT TO ERISA OR THAT IT INTENDS TO
TERMINATE OR HAS TERMINATED UNDER ERISA, (III) THE DISTRIBUTION BY BORROWER OR
ANY ERISA AFFILIATE UNDER ERISA OF A NOTICE OF INTENT TO TERMINATE ANY PLAN OR
THE TAKING OF ANY ACTION TO TERMINATE ANY PLAN, (IV) THE COMMENCEMENT OF
PROCEEDINGS BY THE PBGC UNDER ERISA FOR THE TERMINATION OF, OR THE APPOINTMENT
OF A TRUSTEE TO ADMINISTER, ANY PLAN, OR THE RECEIPT BY BORROWER OR ANY ERISA
AFFILIATE OF A NOTICE FROM ANY MULTIEMPLOYER PLAN THAT SUCH ACTION HAS BEEN
TAKEN BY THE PBGC WITH RESPECT TO SUCH MULTIEMPLOYER PLAN, (V) THE INSTITUTION
OF A PROCEEDING BY ANY FIDUCIARY OF ANY MULTIEMPLOYER PLAN AGAINST BORROWER OR
ANY ERISA AFFILIATE TO ENFORCE SECTION 515 OF ERISA, WHICH IS NOT DISMISSED
WITHIN THIRTY (30) DAYS, (VI) THE IMPOSITION UPON BORROWER OR ANY ERISA
AFFILIATE OF ANY LIABILITY UNDER TITLE IV OF ERISA, OTHER THAN FOR PBGC PREMIUMS
DUE BUT NOT DELINQUENT UNDER ERISA, OR THE IMPOSITION OR THREATENED IMPOSITION
OF ANY LIEN UPON ANY ASSETS OF BORROWER OR ANY ERISA AFFILIATE AS A RESULT OF
ANY ALLEGED FAILURE TO COMPLY WITH THE INTERNAL REVENUE CODE OR ERISA IN RESPECT
OF ANY PLAN, (VII) THE ENGAGING IN OR OTHERWISE BECOMING LIABLE FOR A NONEXEMPT
PROHIBITED TRANSACTION BY BORROWER OR ANY ERISA AFFILIATE, (VIII) A VIOLATION OF
THE APPLICABLE REQUIREMENTS OF SECTION 404