10-K
1
ANNUAL 10-K TO SEC
1 of 257
Exhibit Index Page 18
FORM 10-K
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934 FOR THE FISCAL YEAR ENDED
DECEMBER 31, 1994
[FEE REQUIRED]
Commission File Number 1-134
CURTISS-WRIGHT CORPORATION
(Exact name of Registrant as specified in its charter)
Delaware 13-0612970
(State or other jurisdiction of I.R.S. Employer Identification No.
incorporation or organization)
1200 Wall Street West, Lyndhurst, N.J. 07071
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (201) 896-8400
Securities registered pursuant to Section 12(b) of the Act:
Name of each exchange
Title of each class on which registered
------------------------------------ ---------------------
Common Stock, par value $1 per share New York Stock Exchange
Securities registered pursuant to Section 12(g) of the Act: NONE
Indicate by check mark whether the Registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months, and (2) has been subject to such filing
requirements for the past 90 days.
Yes [ x ] No [ ]
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to
this Form 10-K.
Yes [ x ] No [ ]
The aggregate market value of the voting stock held by non-affiliates(*) of the
Registrant is $ 91,506,470 (based on the closing price of the Registrant's
Common Stock on the New York Stock Exchange on March 10, 1995 of $ 38.00).
- 1 -
2
Indicate the number of shares outstanding of each of the Registrant's classes
of Common Stock, as of the latest practicable date.
Number of Shares
Class Outstanding at March 10, 1995
------------------------------------ -----------------------------
Common Stock, par value $1 per share 5,059,053
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the Annual Report of the Registrant to stockholders for the year
ended December 31, 1994 are incorporated by reference into Parts I, II and IV.
Portions of the Proxy Statement of the Registrant with respect to the 1995
Annual Meeting of Stockholders are incorporated by reference into Parts II and
III.
[FN]
(*) Shares held by former subsidiaries of Teledyne, Inc. have been excluded
from this computation solely because of the definition of the term "affiliate"
in the regulations promulgated pursuant to the Secuties Exchange Act of 1934.
Also, for purposes of this computation, all directors and executive officers of
Registrant have been deemed to be affilitiates, but the Registrant disclaims
that any of such directors of officers is an affiliate. See material referred
to under Item 12, below.
- 2 -
3
INTRODUCTION
============
Pursuant to the Securities Exchange Act of 1934, the Registrant, Curtiss-
Wright Corporation, ("Curtiss-Wright", the "Corporation" or the "Registrant"),
hereby files its Form 10-K Annual Report for the year 1994. References in the
text to the "Corporation," "Curtiss-Wright" or the "Registrant" include
Curtiss-Wright Corporation and its consolidated subsidiaries unless the context
indicates otherwise.
PART I
------
Item 1. Business.
------------------
Curtiss-Wright Corporation was incorporated in 1929 under the laws of the
State of Delaware. Curtiss-Wright operates in three industry segments:
Aerospace; Industrial; and Flow Control and Marine.
Aerospace Segment
-----------------
Control and actuation systems are designed, developed and manufactured by the
Corporation for the aerospace industry by Curtiss-Wright Flight Systems, Inc.
and Curtiss-Wright Flight Systems/Shelby, Inc. (collectively "Flight Systems"),
wholly-owned subsidiaries of the Registrant. Generally speaking, such
components and systems are designed to position aircraft control surfaces, or
to operate canopies, landing gear or weapon bay doors or other devices through
the use of actuators. Products offered consist of electro-mechanical and
hydro-mechanical actuation components and systems. They include actuators for
the Lockheed F-16, and McDonnell Douglas F/A-18 fighter planes, the Boeing 737,
747, 757, 767 and 777 jet transports, and the Sikorsky Black Hawk and Seahawk
helicopters. Flight Systems also provides spare parts and overhaul services
for these products as well as for systems and components previously supplied on
other aerospace programs including the Lockheed L-1011 transport aircraft and
the Grumman F-14A fighter plane.
Flight Systems provides the Leading Edge Flap Rotary Actuators (LEFRA) for
the F-16. There are ongoing commitments for new F-16 aircraft from the
Lockheed/Fort Worth Company for foreign military customers and a retrofit
program for military customers administered through the Ogden Air Logistics
Center. In recent years, work on the F-16 has been the largest program at
Flight Systems. Future government orders for this aircraft are uncertain and
the potential for the F-16 is largely dependent on Lockheed's foreign sales.
Flight Systems is a major supplier for the Lockheed/Boeing F-22 Advanced
Tactical Fighter plane which has been described as the Air Force's future air
superiority fighter. While Flight Systems does not expect to begin substantial
production on this program for several years the program is proceeding with the
engineering and manufacturing development phase.
Engineering manufacturing and development work is proceeding for the FA-18E/F
Lex Vent Drive System under a contract awarded in 1993 with actual production
several years away.
Efforts by Flight Systems to expand its product base include continued work
on a control system for the new Bell/Boeing tilt rotor V-22 aircraft and in
1994 it received a not to exceed $3.8 million award for the engineering and
manufacturing development of "feel and drive" actuators for this aircraft.
Flight Systems provides the airlines with overhauls of transmissions and
actuators previously manufactured by it for Boeing 737 and 747 aircraft and
- 3 -
4
other components for the Lockheed L-1011 aircraft. Overhaul services are also
provided for other Boeing aircraft components originally manufactured by other
Boeing suppliers.
Flight Systems products are sold in keen competition with a number of
other systems suppliers, some of which have financial resources greater than
those of the Corporation and significant technological and human resources.
Flight Systems and these suppliers compete to have their systems selected to
perform control and actuation functions on new aircraft. Competition has
intensified because relatively few new aircraft models have been produced in
recent years. This operation competes primarily on the basis of engineering
capability, quality and price. Products are marketed directly to Flight
Systems customers by employees.
Metal Improvement Company, Inc. ("MIC"), a wholly-owned subsidiary,
performs shot-peening and peen-forming operations for aerospace manufacturers
and their suppliers. Shot-peening is a physical process used primarily to
increase fatigue life in metal parts. MIC provides shot-peening services to
jet engine manufacturers, landing gear suppliers and many other aerospace
manufacturers. Peen forming is a process used to form curvatures in panel
shape metal parts to very close tolerances. These panels are used as the "wing
skins" after assembly on many commercial, military and executive aircraft in
service today. Currently, MIC is peen forming wing skins for jet transports
manufactured by McDonnell Douglas. It also participates in the "Airbus"
commercial jet transport program as a supplier to British Aerospace.
MIC's marketing is accomplished through direct sales. While MIC competes
with a great many firms and often deals with customers which have the resources
to perform for themselves the same services as are provided by MIC, MIC
considers that its greater technical expertise and superior quality provide it
with a competitive advantage.
The Corporation also manufactures windshield wiper systems for marine and
aircraft use which are sold primarily by direct sales. It also extrudes
preforms for tactical missile motor cases.
The business of the Aerospace Segment would be materially affected by the
loss of any one of several important customers. A substantial portion of
segment sales are made to Lockheed Corporation and Boeing Company for F-22
engineering and design work and to the Boeing Company for commercial transport
aircraft. The loss of any of these important customers would have a material
adverse effect on this segment. Furthermore, the likelihood of future
reductions in military and commercial programs due to reduced spending and
problems in the airline industry continues to exist.
The backlog of the Aerospace segment as of January 31, 1995 was $79.0
million as compared with $104.3 million as of January 31, 1994. Of the January
31, 1995 amount, approximately 42% is expected to be shipped during 1995. None
of the business of this segment is seasonal. Raw materials, though not
significant to these operations, are available in adequate
quantities.
Industrial Segment
------------------
The MIC subsidiary of the Corporation is engaged in the business of
performing shot peening and heat treating for a broad spectrum of industrial
customers, principally in the automotive, agricultural equipment, construction
equipment and oil and gas industries. Heat treating is a metallurgical process
used primarily to harden metals in order to provide increased durability and
service life. MIC marketing and sales activity are done on a direct sales
basis.
Operations are conducted in facilities in the United States, Canada, England,
France and Germany. Although numerous companies compete in the shot-peening
field, and many customers for shot-peening services have the resources to
- 4 -
5
perform such services themselves, MIC believes that its greater technical know
how provides it with a competitive advantage. Substantial numbers of
industrial firms elect to perform shot-peening services for themselves. MIC
also competes on the basis of quality, service, price and delivery. MIC
experiences substantial competition from other companies in heat-treating metal
components.
MIC is also engaged in the business of precision stamping and finishing of
high strength steel reed valves used by various manufacturers of products such
as refrigerators, air compressors, and small engines.
The Corporation's Buffalo, New York extrusion facility is being offered
for sale. Its sales comprised 6% of the total revenue of the Corporation in
1994. This facility produces seamless pipe and extruded shapes on a 12,000 ton
horizontal extrusion press. These products are marketed by direct salesmen and
distributors for use primarily in the chemical, petrochemical and oil and gas
industries. Keen competition exists in these markets. It comes from foreign
sources and a small number of domestic competitors who use substantially the
same or other methods of manufacture. The Corporation competes in these
markets primarily on the basis of price, quality and delivery with quality and
delivery being the major factors. The extrusion press has been in operation
for thirty-eight years and is unique in its size and certain capabilities.
The Buffalo facility remains dependent on this press for its operations and
a failure resulting in a shutdown of the operation in the future for an
extended period could have adverse consequences.
Flight Systems' has designed and developed a commercial rescue tool using
its power hinge aerospace technology which is being marketed under the name
Power Hawk. The primary use for this tool is the extrication of automobile
accident victims. A distribution network for the United States market has been
completed and commercial sales are expected to commence in 1995.
The backlog of the Industrial segment (which has historically been low
relative to sales of the segment) as of January 31, 1995 was $6.2 million as
compared with $2.8 million as of January 31, 1994. Virtually all of the
January 31, 1995 backlog is expected to be shipped in 1995. None of the
business of this segment is seasonal. Raw materials, though not particularly
significant to these operations, are available in adequate quantities.
Flow Control and Marine Segment
-------------------------------
The Target Rock subsidiary of the Corporation manufactures and refurbishes
highly engineered valves of various types and sizes, such as hydraulically
operated, motor operated and solenoid operated globe, gate, control and safety
relief valves, which are used to control the flow of liquids and gases, and
provide safe relief in the event of system overpressure. They are used
primarily in United States Navy nuclear propulsion systems, in new and existing
commercial nuclear and fossil fuel power plants and in facilities for process
steam regeneration in the petroleum, paper and chemical industries. It also
supplies actuators and controllers for Target Rock manufactured valves as well
as for valves manufactured by others.
The Corporation's Buffalo, New York facility produces, on its extrusion
press, custom extruded shapes and seamless pipe of varying wall sizes from
various alloys for use in U.S. Navy ships, including the nuclear propulsion
systems utilized by such ships.
Sales to commercial users are accomplished through independent marketing
representatives and by direct sales. Sales for United States Government use
are made by responding directly to requests for proposals from customers and
through the use of marketing representatives.
- 5 -
6
Strong competition in valves is encountered primarily from a small number
of experienced domestic firms in the military market, and from a larger number
of domestic and foreign sources in the commercial market. Some firms,
competing with the Buffalo facility, employ processes different from the
extrusion process in the production of competing products. The products of the
Flow Control and Marine Segment are sold to customers who are sophisticated and
demanding. Performance, quality, technology, production methods, delivery and
price are the principal areas of competition.
Raw materials are generally available in adequate supply from a number of
suppliers. The business of this segment is not materially dependent upon any
single source of supply.
The dollar amount of the Flow Control and Marine segment backlog of orders
at January 31, 1995 was $33.8 million as compared with $43.4 million at January
31, 1994. Of the January 31, 1995 backlog, approximately 54% is expected to be
delivered during 1995. Despite a declining market, Target Rock has been able
to increase its market share and to maintain its sales volume. Target Rock's
business, especially the production of valves for the United States Navy, is
characterized by long lead times from order placement to delivery. The
business of this segment is not seasonal.
Target Rock offers its packless electronic control valve as a replacement
item for competitors' commercial valves containing packing. The success of
this valve is dependent upon the future application of stringent new Federal
standards limiting air pollution from "fugitive" emissions from valves now
widely in use.
A substantial amount of the sales in the Flow Control and Marine segment
are made to the Westinghouse Electric Corporation for United States Government
end use. The loss of this customer would have a material adverse effect on
this segment. U.S. Government direct and end use sales of this segment in
1994, 1993 and 1992 were $16.8, $16.9 and $20.6 million, respectively.
Other Information
-----------------
Government Sales
----------------
In 1994, 1993 and 1992, direct sales to the United States Government and
sales for United States Government end use aggregated 31%, 34% and 36%,
respectively, of total sales for all segments. United States Government sales,
both direct and subcontract, are generally made under one of the standard types
of government contracts, including fixed price and fixed price-redeterminable.
In accordance with normal practice in the case of United States Government
business, contracts and orders are subject to partial or complete termination
at any time, at the option of the customer. In the event of a termination for
convenience by the Government, there generally are provisions for recovery by
the Corporation of its allowable incurred costs and a proportionate share of
the profit or fee on the work done, consistent with regulations of the United
States Government. Subcontracts for Navy nuclear valves usually provide that
Target Rock must absorb most of any over-run of "target" costs. In the event
that there is a cost underrun, however, the customer is to recoup the larger
portion of the underrun.
It is the policy of the Corporation to seek customary progress payments on
certain of its contracts. Where such payments are obtained by the Corporation
under United States government prime contracts or subcontracts, they are
secured by a lien in favor of the government on the materials and work in
process allocable or chargeable to the respective contracts. (See Notes 1.C, 3
and 4 to the Consolidated Financial Statements, on pages 19 and 20 of the 1994
Annual Report to Stockholders, which is attached hereto as Exhibit 13 and
hereinafter referred to as the "Registrant's Annual Report".) In the case of
- 6 -
7
most Flow Control and Marine products for United States Government end use, the
subcontracts typically provide for the retention by the customer of stipulated
percentages of the contract price, pending completion of contract closeout
conditions.
Research and Development
------------------------
Research and development expenditures of the Corporation amounted to
approximately $1.2 million in 1994 as compared to about $1.4 million in 1993
and $1.6 million in 1992 for Corporation-sponsored activities. During 1994
Curtiss-Wright spent an additional $9.1 million for customer-sponsored
development work. The Corporation owns and is licensed under a number of
United States and foreign patents and patent applications which have been
obtained or filed over a period of years. The Corporation does not consider
that the successful conduct of its business is materially dependent upon the
protection of any one or more of these patents, patent applications or patent
license agreements under which it now operates.
Environmental Protection
------------------------
The effect of compliance upon the Corporation with present legal
requirements concerning protection of the environment is described in the
material in Note 13 to the Consolidated Financial Statements which appears on
page 23 of the Registrant's Annual Report and is incorporated by reference in
this Form 10-K Annual Report.
Employees
---------
At the end of 1994, the Corporation had approximately 1,500 employees.
Most production employees are represented by labor unions and are covered by
collective bargaining agreements.
Certain Financial Information
-----------------------------
The material in Note 20 to the Consolidated Financial Statements, which
appears on Pages 25 and 26 of the Registrant's Annual Report, is incorporated
by reference in this Form 10-K Annual Report. It should be noted that in
recent years a significant percentage of the pre-tax earnings from operations
of the Corporation has been derived from European operations of MIC. The
Corporation does not regard the risks attendant to these foreign operations to
be materially greater than those applicable to its business in the U.S.
- 7 -
8
Item 2. Properties.
--------------------
The principal physical properties of the Corporation and its subsidiaries
are described below:
Owned/
Location Description(1) Leased Principal Use
------------- --------------- ---------- ----------------------------------
Wood-Ridge, 2,322,000 Owned(2) Multi-tenant industrial
New Jersey sq. ft. on rental facility.
144 acres
Fairfield, 450,000 Owned(3) Manufacture of actuation
New Jersey sq. ft. on and control systems
39 acres (Aerospace segment).
Buffalo, 267,000 Owned Extrusion of shapes and
New York sq. ft. on pipe (Flow Control and Marine,
14 acres Industrial and Aerospace
segments).
Brampton, 87,000 Owned Shot-peening and peen-forming
Ontario, sq. ft. on operations (Aerospace segment).
Canada 8 acres
East 195,000 Owned(4) Manufacture of valves (Flow
Farmingdale, sq. ft. on Control and Marine segment).
New York 11 acres
Shelby, 56,000 Owned Manufacture of actuation and
No. Carolina sq. ft on control systems (Aerospace
29 acres segment).
Columbus, 75,000 Owned Heat-treating (Industrial
Ohio sq. ft. on segment).
9 acres
Deeside, 81,000 Owned Shot-peening and peen forming
Wales sq. ft. on (Aerospace segment).
United Kingdom 2.2 acres
(1) Sizes are approximate. Unless otherwise indicated, all properties are
owned in fee, are not subject to any major encumbrance and are occupied
primarily by factory and/or warehouse buildings.
(2) Approximately 1,991,000 square feet are leased to others and approximately
another 331,000 square feet are vacant and available for lease.
(3) Approximately 247,000 square feet are leased to other parties.
(4) Title to approximately six acres of land and the building located thereon
is held by the Suffolk County Industrial Development Agency in connection with
the issuance of an industrial revenue bond.
- 8 -
9
It is the policy of the Corporation to lease to others those portions of
its facilities that it does not fully utilize.
In addition to the properties listed above, MIC (Aerospace and Industrial
segments) leases an aggregate of approximately 346,000 square feet of space at
eighteen different locations in the United States and England and owns build-
ings encompassing about 326,000 square feet in fourteen different locations in
the United States, France, Germany, and England. Curtiss-Wright Flight
Systems/Shelby, Inc. leases a 25,000 square foot building in Lattimore, North
Carolina for warehouse purposes.
The Corporation leases approximately 14,000 square feet of office space in
Lyndhurst, New Jersey, for its corporate office.
It is the Corporation's opinion that the buildings on the properties
referred to in this Item generally are well maintained, in good condition, and
are suitable and adequate for the uses presently being made of them by the
Corporation. No examination of titles to properties owned by the Corporation
has been made for the purposes of this Form 10-K Report.
The following undeveloped tracts, owned by the Registrant, are not
attributable to a particular industry segment and are being held for sale:
Hardwick Township, New Jersey, 678 acres; Perico Island, Florida, 158 acres,
the bulk of which is below water; Washington Township, New Jersey, 33 acres;
and Nantucket, Massachusetts, 33 acres. Curtiss-Wright of Canada Inc. owns a
building containing approximately 44,000 square feet of commercial space
located in London, Ontario, Canada. Pursuant to the termination of manufac-
turing operations in 1992, this building is now being offered for sale. A
32,000 square foot building on 2.6 acres of land owned by MIC in Wyandanch, New
York and no longer needed for its shot-peening operations is also being offered
for sale. In addition, the Registrant owns approximately 7.4 acres of land in
Lyndhurst, New Jersey which is leased, on a long-term basis, to the owner of
the commercial building located on the land.
Item 3. Legal Proceedings.
--------------------------
1. In October 1989 a joint and several liability claim in an unspecified
amount was brought by the State of New Jersey Department of Environmental
Protection against the Registrant and a dozen or more other corporations under
the Comprehensive Environmental Response, Compensation and Liability Act for
reimbursement of costs incurred by the State in response to the release of
hazardous substances at Sharkey Landfill site in Parsippany, New Jersey, for a
future declaratory judgment in favor of the State with respect to all future
such costs and for penalties and costs of enforcement, including attorney fees.
The case was subsequently consolidated for all purposes with U.S. v. CMDG
Realty Co., et al., a parallel action by the U.S. Environmental Protection
Agency in which the Registrant was not a defendant. Both cases are pending in
the U.S. District Court for the District of New Jersey. A third-party
complaint in both cases has been filed against approximately thirty industrial
concerns, forty governmental instrumentalities and forty transporters, alleging
that each of them is liable in some measure for the costs related to the site.
Item 4. Submission of Matters to a Vote of Security Holders.
-------------------------------------------------------------
Not applicable.
- 9 -
10
Executive Officers of the Registrant.
-------------------------------------
The following table sets forth the names, ages, and principal occupations
and employment of all executive officers of Registrant. The period of service
is for at least the past five years and such occupations and employment are
with Curtiss-Wright Corporation, except as otherwise indicated:
Name Principal Occupation and Employment Age
------------------------- ---------------------------------------------- ----
Shirley D. Brinsfield Chairman (since March 1990) and President from
July 1991 to May 1993. 72
David Lasky President (since May 1993); previously Senior
Vice President, General Counsel and Secretary. 62
Robert E. Mutch Executive Vice President; President (since July
1991), Vice President and General Manager (since
1987) of Curtiss-Wright Flight Systems, Inc., a
wholly-owned subsidiary. 50
Gerald Nachman Executive Vice President; President of Metal
Improvement Company, Inc., a wholly-owned sub-
sidiary. 65
George J. Yohrling Vice President; Senior Vice President (since
July 1991); Vice President and General Manager
of Curtiss-Wright Flight Systems/Shelby, Inc.,
a wholly-owned subsidiary, (since 1985). 54
Robert A. Bosi Vice President-Finance (since January 1993);
Treasurer, 1989-1993. 39
Dana M. Taylor, Jr. Secretary, General Counsel (since May 1993);
Assistant General Counsel (July 1992 to May
1993); Senior Attorney (February 1979 -
July 1992). 62
Gary Benschip Treasurer (since January 1993); Assistant
Treasurer, 1991 to January 1993; 1989-1991
Financial Consultant. 47
Kenneth P. Slezak Controller (since July, 1990); Corporate
Director, Operational Analysis, March -
July, 1990. 43
The executive officers of the Registrant are elected annually by the Board
of Directors at its organization meeting in May and hold office until the
organization meeting in the next subsequent year and until their respective
successors are chosen and qualified.
There are no family relationships among these officers, or between any of
them and any director of Curtiss-Wright Corporation, nor any arrangements or
understandings between any officer and any other person pursuant to which the
officer was elected.
- 10 -
11
PART II
=========
Item 5. Market for Registrant's Common Stock and Related Stockholder Matters.
------------------------------------------------------------------------------
See the information contained in the Registrant's Annual Report on page 28
under the captions "Common Stock Price Range" and "Dividends," and on the in-
side back cover, under the captions "Stock Exchange Listing," and "Common
Stockholders," which information is incorporated herein by reference. The
approximate number of record holders of the Common Stock, $1.00 par value, of
Registrant was 6,300 as of March 10, 1995.
Item 6. Selected Financial Data.
---------------------------------
See the information contained in the Registrant's Annual Report on page 28
under the caption "Consolidated Selected Financial Data," which information is
incorporated herein by reference.
Item 7. Management's Discussion and Analysis of Financial Condition and
Results of Operations.
------------------------------------------------------------------------
See the information contained in the Registrant's Annual Report at pages 9
through 13, under the caption "Management's Discussion and Analysis of
Financial Condition and Results of Operations," which information is
incorporated herein by reference.
Item 8. Financial Statements and Supplementary Data.
-----------------------------------------------------
The following Consolidated Financial Statements of the Registrant and its
subsidiaries, and supplementary financial information, are included in the
Registrant's Annual Report, which information is incorporated herein by
reference.
Consolidated Statements of Earnings for the years ended December 31, 1994,
1993 and 1992, page 15.
Consolidated Balance Sheets at December 31, 1994 and 1993, page 16.
Consolidated Statements of Cash Flows for the years ended December 31,
1994, 1993 and 1992, page 17.
Consolidated Statements of Stockholders' Equity for the years ended
December 31, 1994, 1993 and 1992, page 18.
Notes to Consolidated Financial Statements, pages 19 through 26,
inclusive, and selected quarterly financial data on page 27.
The Report of Independent Accountants for the three years ended December
31, 1994, 1993 and 1992, page 14.
Item 9. Changes in and Disagreements with Accountants on Accounting and
Financial Disclosure.
------------------------------------------------------------------------
Not applicable.
- 11 -
12
PART III
==========
Item 10. Directors and Executive Officers of the Registrant.
-------------------------------------------------------------
Information required in connection with directors and executive officers
is set forth under the title "Executive Officers of the Registrant," in Part I
hereof, at pages 13 and 14, and under the caption "Election of Directors," in
the Registrant's Proxy Statement, which information is incorporated herein by
reference.
Item 11. Executive Compensation.
---------------------------------
Information required by this Item is included under the captions
"Executive Compensation" and in the "Summary Compensation Table" in the
Registrant's Proxy Statement, which information is incorporated herein by
reference.
Item 12. Security Ownership of Certain Beneficial Owners and Management.
-------------------------------------------------------------------------
See the following portions of the Registrant's Proxy Statement, all of
which information is incorporated herein by reference: (i) the material under
the caption "Security Ownership and Transactions with Certain Beneficial
Owners" and (ii) material included under the caption "Election of Directors."
Item 13. Certain Relationships and Related Transactions.
---------------------------------------------------------
Information required by this Item is included under the captions
"Executive Compensation" and "Security Ownership and Transactions with Certain
Beneficial Owners" in the Registrant's Proxy Statement, which information is
incorporated herein by reference.
PART IV
=========
Item 14. Exhibits, Financial Statement, Schedules and Reports on Form 8-K.
---------------------------------------------------------------------------
(a)(1) Financial Statements:
The following Consolidated Financial Statements of the Registrant and
supplementary financial information, included in Registrant's Annual
Report, are incorporated herein by reference in Item 8:
(i) Consolidated Statements of Earnings for the years ended December 31,
1994, 1993 and 1992.
(ii) Consolidated Balance Sheets at December 31, 1994 and 1993.
(iii) Consolidated Statements of Cash Flows for the years ended December
31, 1994, 1993 and 1992.
(iv) Consolidated Statements of Stockholders' Equity for the years ended
December 31, 1994, 1993 and 1992.
(v) Notes to Consolidated Financial Statements and selected quarterly
financial data.
(vi) The Report of Independent Accountants for the years ended December
31, 1994, 1993 and 1992.
- 12 -
13
(a)(2) Financial Statement Schedules:
The items listed below are presented herein on pages 16 through 17.
The Report of Independent Accountants on Financial Statement Schedules
Schedule II - Valuation and Qualifying Accounts
Schedules other than those listed above have been omitted since they
are not required, are not applicable, or because the required inform-
ation is included in the financial statements or notes thereto.
(a)(3) Exhibits:
(3)(i) Restated Certificate of Incorporation, as amended May 8, 1987
(incorporated by reference to Exhibit 3(a) to Registrant's
Form 10-Q Report for the quarter ended June 30, 1987).
(3)(ii) By-Laws as amended May 9, 1989 (incorporated by reference to
Exhibit 3(b) to Amendment No. 1 to Registrant's Form 10-Q
Report for the quarter ended March 31, 1989) and Amendment
dated May 11, 1993 (incorporated by reference to Exhibit 3(ii)
to Registrant's Annual Report on Form 10-K for the year ended
December 31, 1993).
(4)(i) Agreement to furnish to the Commission upon request, a copy of
any long term debt instrument where the amount of the
securities authorized thereunder does not exceed 10% of the
total assets of the Registrant and its subsidiaries on a
consolidated basis (incorporated by reference to Exhibit 4 to
Registrant's Annual Report on Form 10-K for the year ended
December 31, 1985).
(4)(ii) Revolving Credit Agreement dated October 29, 1991 between
Registrant, the Lenders parties thereto from time to time, the
Issuing Banks referred to therein and Mellon Bank, N.A.
Article I Definitions, Section 1.01 Certain Definitions;
Article VII Negative Covenants, Section 7.07, Limitation on
Dividends and Stock Acquisitions (incorporated by reference to
Exhibit 10(b), to Registrant's Form 10-Q Report for the
quarter ended September 30, 1991). Amendment No. 1 dated
January 7, 1992 and Amendment No. 2 dated October 1, 1992 to
said Agreement (incorporated by reference to Exhibit 4(ii) to
Registrant's Annual Report on Form 10-K for the year ended
December 31, 1993). Third Amendment to Credit Agreement dated
as of October 29, 1994.
(4)(iii) Short Term Credit Agreement dated as of October 29, 1994
among Curtiss-Wright Corporation, as Borrower, the Lenders
Parties and Mellon Bank, N.A., as Agent.
(10) Material Contracts:
(i) Modified Incentive Compensation Plan, as amended November 9, 1989
(incorporated by reference to Exhibit 10(a) to Registrant's
Form 10-Q Report for the quarter ended September 30, 1989).
- 13 -
14
(ii) Curtiss-Wright 1989 Restricted Stock Purchase Plan (incorporated
by reference to Exhibit 10(iii) to Registrant's Annual Report
on Form 10-K for the year ended December 31, 1988).
(iii) Curtiss-Wright Corporation 1985 Stock Option Plan, as amended
(incorporated by reference to Exhibit 4(iii) to Registrant's
Form S-8 Registration Statement and Exhibit 4(i) to post-
effective amendment No. 1 filed November 24, 1993, Registra-
tion No. 2-99113).
(iv) Standard Severance Agreement with Officers of Curtiss-Wright
(incorporated by reference to Exhibit 10(iv) to Registrant's
Annual Report on Form 10-K for the year ended December 31,
1991).
(v) Retirement Benefits Restoration Plan as amended May 9, 1989,
(incorporated by reference to Exhibit 10(b) to Registrant's
Form 10-Q Report for the quarter ended September 30, 1989).
(vi) Curtiss-Wright Corporation Retirement Plan dated September 1,
1994.
(vii) Curtiss-Wright Corporation Savings and Investment Plan dated
March 1, 1995
(13) Annual Report to Stockholders for the year ended December 31, 1994.
(21) Subsidiaries of the Registrant.
(23) Consents of Experts & Counsel-see Consent of Independent Accountants.
(27) Financial Data Schedule.
(b) Reports on Form 8-K
No report on Form 8-K was filed during the three months ended December 31,
1994.
- 14 -
15
SIGNATURES
==========
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Registrant has duly caused this report to be signed
on its behalf by the undersigned, thereunto duly authorized.
CURTISS-WRIGHT CORPORATION
(Registrant)
David Lasky
David Lasky, President
Date: March 31, 1995
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of the
Registrant and in the capacities and on the dates indicated.
Date: March 31, 1995 Robert A. Bosi
Robert A. Bosi,
Vice President - Finance
Date: March 31, 1995 Kenneth P. Slezak
Kenneth P. Slezak, Controller
Date: March 22, 1995 Thomas R. Berner
Thomas R. Berner, Director
Date: March 22, 1995 Shirley D. Brinsfield
Shirley D. Brinsfield, Director
Date: March 31, 1995 John S. Bull
John S. Bull, Director
Date: March 31, 1995 David Lasky
David Lasky, President
Date: March 22, 1995 William W. Sihler
William W. Sihler, Director
Date: March 31, 1995 J. McLain Stewart, Director
J. McLain Stewart, Director
- 15 -
16
REPORT OF INDEPENDENT ACCOUNTANTS ON
FINANCIAL STATEMENT SCHEDULE
To the Board of Directors
of Curtiss-Wright Corporation
Our audit of the consolidated financial statements referred to in our report
dated February 6, 1995, appearing on page 14 of the 1994 Curtiss-Wright
Corporation Annual Report (which report and consolidated financial statements
are incorporated by reference in this Annual Report on Form 10-K) also included
an audit of the Financial Statement Schedule listed in Item 14(a)(2) of this
Form 10-K. In our opinion, the Financial Statement Schedule presents fairly,
in all material respects, the information set forth therein when read in
conjunction with the related consolidated financial statements.
Price Waterhouse LLP
Price Waterhouse LLP
Morristown, NJ
February 6, 1995
- 16 -
17
CURTISS-WRIGHT CORPORATION and SUBSIDIARIES
SCHEDULE II - VALUATION and QUALIFYING ACCOUNTS
for the years ended December 31, 1994, 1993 and 1992
(In thousands)
Additions
--------------------
Balance at Charged to Other Balance at
Beginning Costs & Accounts- Deductions- End of
Description of Period Expenses Describe Describe Period
---------------------- ----------- ---------- --------- ----------- ----------
Deducted from assets
to which they apply:
Reserves for doubtful
accounts and notes:
Year-ended
December 31, 1994 $ 893 $ 32 $231(B) $ 694
Year-ended
December 31, 1993 $1,031 $ 16 $154(B) $ 893
Year-ended
December 31, 1992 $ 864 $ 194 $ 27(B) $1,031
Deferred tax asset
valuation allowance:
Year-ended
December 31, 1994 $5,861 $ 193 $594(C) $5,460
Year-ended
December 31, 1993 $ - $5,861(A) $ - $5,861
Notes:
(A) Includes a deferred tax benefit of an additional capital loss carry-
forward identified in the fourth quarter of 1993.
(B) Write off of bad debts.
(C) Utilization of tax benefits under capital loss carryforward.
- 17 -
18
EXHIBIT INDEX
===============
The following is an index of the exhibits included
in this report or incorporated herein by reference.
Exhibit No. Name Page
------------ --------------------------------------------------------- ------
(a)(3)(i) Restated Certificate of Incorporation, as amended May 8, *
1987 (incorporated by reference to Exhibit 3(a) to
Registrant's Form 10-Q Report for the quarter ended June
30, 1987).
(a)(3)(ii) By-Laws as amended May 9, 1989 (incorporated by reference *
to Exhibit 3(b) to Amendment No. 1 to Registrant's Form
10-Q Report for the quarter ended March 31, 1989) and
Amendment dated May 11, 1993 (incorporated by reference to
Exhibit 3(ii) to Registrant's Annual Report on Form 10-K
for the year ended December 31, 1993).
(a)(4)(i) Agreement to furnish to the Commission upon request, a *
copy of any long term debt instrument where the amount
of the securities authorized thereunder does not exceed
10% of the total assets of the Registrant and its sub-
sidiaries on a consolidated basis (incorporated by
reference to Exhibit 4 to Registrant's Annual Report on
Form 10-K for the year ended December 31, 1985).
(a)(4)(ii) Revolving Credit Agreement dated October 29, 1991 between *
Registrant, the Lenders parties thereto from time to time,
the Issuing Banks referred to therein and Mellon Bank, N.A.
Article I Definitions, Section 1.01 Certain Definitions;
Article VII Negative Covenants, Section 7.07, Limitation on
Dividends and Stock Acquisitions (incorporated by reference
to Exhibit 10(b), to Registrant's Form 10-Q Report for the
quarter ended September 30, 1991). Amendment No. 1 dated
January 7, 1992 and Amendment No. 2 dated October 1, 1992
to said Agreement (incorporated by reference to Exhibit 4(ii)
to Registrant's Annual Report on Form 10-K for the year
ended December 31, 1993).
Third Amendment to Credit Agreement
dated as of October 29, 1994. 20
(a)(4)(iii) Short Term Credit Agreement dated as of October 29, 1994
among Curtiss-Wright Corporation, as Borrower, the Lenders
parties and Mellon Bank, N.A. 25
- 18 -
19
Exhibit No. Name Page
------------ --------------------------------------------------------- ------
(10)(i)** Modified Incentive Compensation Plan, as amended November *
9, 1989 (incorporated by reference to Exhibit 10(a) to
Registrant's Form 10-Q Report for the quarter ended
September 30, 1989).
(10)(ii)** Curtiss-Wright 1989 Restricted Stock Purchase Plan (incor- *
porated by reference to Exhibit 10(iii) to Registrant's
Annual Report on Form 10-K for the year ended December 31,
1988).
(10)(iii)** Curtiss-Wright Corporation 1985 Stock Option Plan, as *
amended (incorporated by reference to Exhibit 4(iii) to
Registrant's Form S-8 Registration Statement and Exhibit
4(i) to post-effective amendment No. 1 filed November 24,
1993, Registration No. 2-99113).
(10)(iv)** Standard Severance Agreement with Officers of Curtiss- *
Wright (incorporated by reference to Exhibit 10(iv) to
Registrant's Annual Report on Form 10-K for the year ended
December 31, 1991).
(10)(v)** Retirement Benefits Restoration Plan as amended May 9, 1989, *
(incorporated by reference to Exhibit 10(b) to Registrant's
Form 10-Q Report for the quarter ended September 30, 1989).
(10)(vi)** Curtiss-Wright Corporation Retirement Plan dated September 79
1, 1994
(10)(vii)** Amended Curtiss-Wright Corporation Savings and Investment
Plan dated March 1, 1995. 162
(13) Annual Report to Stockholders for the year ended December
31, 1994 212
(21) Subsidiaries of the Registrant 255
(23) Consents of Experts and Counsel - see Consent of Independent
Accountants 256
(27) Financial Data Schedule 257
[FN]
* Incorporated by reference as noted.
** Management contract or compensatory plan or arrangement.
- 19 -
EX-4
2
INSTRUMENT DEFINING THE RIGHTS OF SECURITY HOLDERS.
20
THIRD AMENDMENT TO CREDIT AGREEMENT
-------------------------------------
THIS THIRD AMENDMENT TO CREDIT AGREEMENT, dated as of October 29, 1994
(this "Amendment"), by and between CURTISS-WRIGHT CORPORATION, a Delaware
corporation (the "Borrower"), the lenders parties hereto from time to time (the
"Lenders", as defined further below), the Issuing Banks referred to herein (the
"Issuing Banks") and MELLON BANK, N.A., a national banking association, as
agent for the Lenders and the Issuing Banks hereunder (in such capacity,
together with its successors in such capacity, the "Agent");
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Borrower, the Lenders, the Issuing Banks and the Agent
are parties to a Credit Agreement, dated as of October 29, 1991 (as amended,
the "Credit Agreement"), pursuant to which the Lenders have made Loans to the
Borrower and certain Issuing Banks have issued Letters of Credit on behalf of
the Borrower and its Subsidiaries; and
WHEREAS, the Borrower has requested the Lenders (i) to reduce the
Total Revolving Credit Commitments to $22,500,000 (ii) extend the Revolving
Credit Maturity Date to October 29, 1997 and (iii) make certain other changes
to the Credit Agreement; and
WHEREAS, the Lenders are willing to so amend the Credit Agreement upon
the terms and conditions hereinafter set forth; and
WHEREAS, capitalized terms used herein and not otherwise defined shall
have the meanings assigned to them in the Credit Agreement;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, and intending to be legally bound hereby, the
parties hereto agree as follows:
Amendments to Credit Agreement.
-------------------------------
The Credit Agreement is hereby amended as follows:
1a Section 1.01 is amended as follows:
11i The definition of the term "Revolving Credit Maturity Date" is
amended to substitute the date "October 29, 1997" for the date "October 29,
1994".
12i The definition of the term "Significant Subsidiary" is amended
by adding the words ",Target Rock Corporation" immediately following the words
"System/Shelby, Inc."
2a Section 2.04(d) is amended by substituting the following Allow-
able Aggregate Principal Amounts for the Allowable Aggregate Principal Amounts
set forth therein:
- 20 -
21
Portion or Funding Segment Allowable Aggregate Principal Amounts
-------------------------- --------------------------------------------------
Base Rate Portion $1,000,000 or an integral multiple of $500,000
thereof
Each Funding Segment of $5,000,000 or an integral multiple of
the CD Rate Portion $500,000 thereof
Each Funding Segment of $5,000,000 or an integral multiple of
the Euro-Rate Portion $500,000 thereof
3a Section 3.01(d) is amended by deleting the words "provided,
however, that Financial Guaranty Letters of Credit shall not be issued without
the written consent of the Agent, the Issuing Bank and the Required Lenders"
from the second sentence thereof.
4a Section 3.02(a) is hereby amended by deleting the words "in an
amount to be agreed upon between the Agent, the Borrower and each Lender" and
substituting therefor the words "0.625% per annum of the face amount of such
Financial Guaranty Letter of Credit".
5a Section 6.01(c) is amended by deleting the phrase ", together with
a statement of the net worth of Target Rock Corporation."
6a Section 7.02 is amended by deleting paragraph (f) in its entirety,
deleting the word "and" at the end of paragraph (e), inserting the word "and"
at the end of paragraph (d) and inserting a period after paragraph (e).
7a Section 7.09 is deleted in its entirety.
(h) The Initial Revolving Credit Committed Amount of each Lender
shall be reduced such that the Total Revolving Credit Committed Amount shall be
$22,500,000. The Revolving Credit Committed Amount of each Lender shall be as
follows:
Mellon Bank, N.A. $7,500,000
Nationsbank 5,000,000
Midlantic Bank, National Association 5,000,000
The Bank of Nova Scotia 5,000,000
Conditions Precedent.
---------------------
The effectiveness of this Amendment is subject to the accuracy as of the date
hereof of the representations and warranties herein contained, to the perform-
ance by the Borrower of its obligations to be performed hereunder on or before
the date hereof and to the satisfaction, on or before October 29, 1994 (the
date of such satisfaction being referred to herein as the "Effective Date"), of
the following further conditions precedent:
11a Amendment. Each Lender shall have received a counterpart of
this Amendment, duly executed by the Borrower.
12a Reduction of Outstanding Principal Amount of Loan. The
Borrower shall have reduced the aggregate principal amount
of Loans and Letters of Credit outstanding to less than
$22,500,000.
- 21 -
22
13a Representations and Warranties; Events of Default and
Potential Defaults.
The representations and warranties contained in Section 3 hereof shall be
true and correct on and as of the Effective Date with the same effect as though
made on and as of such date. On the Effective Date, no Event of Default and no
Potential Default shall have occurred and be continuing or shall exist or shall
occur or exist after giving effect to this Amendment and the transactions
contemplated hereby. On the Effective Date, there shall have been delivered to
the Agent a certificate, dated the Effective Date and signed on behalf of the
Borrower by the President, Treasurer or chief financial officer of the Bor-
rower, that (a) the representations and warranties set forth in Section 3
hereof are true and correct on and as of such date and (b) on such date no
Event of Default or Potential Default has occurred and is continuing or exists
or will occur or exist after giving effect to this Amendment and the
transactions contemplated hereby.
14a Proceedings and Incumbency.
On the Effective Date, there shall have been delivered the Agent with an
original counterpart for each Lender a certificate, dated the Effective Date
and signed on behalf of the Borrower by the Secretary or an Assistant Secretary
of the Borrower, certifying as to (i) true copies of the articles of incorpor-
ation and bylaws of the Borrower as in effect on such date (or a certificate of
the Secretary or Assistant Secretary of the Borrower to the effect that there
have been no changes in such articles of incorporation or bylaws from the forms
thereof previously delivered to the Agent and the Lenders or, if there have
been any such changes, attaching copies thereof), (ii) true copies of all
corporate action taken by the Borrower relative to this Amendment and (iii) the
names, true signatures and incumbency of the officer or officers of the Bor-
rower authorized to execute and deliver this Amendment and the other documents
and instruments to be executed and delivered under the Credit Agreement, as
amended hereby. The Agent shall be entitled to conclusively rely on such
certificate unless and until a later certificate revising the prior certificate
has been furnished to the Agent.
15a Opinions of Counsel.
On the Effective Date, there shall have been delivered to the Agent written
opinions, dated the Effective Date, of General Counsel to the Borrower in form
and substance satisfactory to the Agent and as to such matters incident to the
transactions contemplated hereby as the Agent may reasonably request.
16a Details, Proceedings and Documents.
All legal details and proceedings in connection with the transactions
contemplated by this Amendment shall be satisfactory to the Lenders, and, on
the Effective Date, the Agent shall have received all such counterpart
originals or certified or other copies of such documents and proceedings in
connection with such transactions, in form and substance satisfactory to the
Agent and the Lenders, as the Agent or any Lender may reasonably request.
Representations and Warranties.
The Borrower hereby represents and warrants to the Agent and the Lenders that
the representations and warranties set forth in the Credit Agreement, as
amended by this Amendment, are true and correct on and as of the date hereof as
if made on and as of the date hereof, and that no Event of Default or Potential
Default has occurred and is continuing or exists on and as of the date hereof;
provided, however, that, for purposes of the foregoing, all references in the
Credit Agreement to "this Agreement" shall be deemed to be references to this
Amendment and the Credit Agreement as amended by this Amendment.
- 22 -
23
In addition, the reference in Section 4.05 of the Credit Agreement to the
financial statements of the Borrower and its consolidated Subsidiaries as of
December 31, 1989 and December 31, 1990 shall be deemed to be a reference to
the financial statements of the Borrower and its consolidated Subsidiaries as
of December 31, 1992 and December 31, 1993, respectively, the reference in such
Section to the parallel interim consolidated financial statements for and as of
the end of the six months ended June 30, 1991 shall be deemed to be a reference
to the parallel interim consolidated financial statements for and as of the end
of the second fiscal quarter of the fiscal year beginning January 1, 1994, and
the references in the last sentence of Section 4.05 of the Credit Agreement to
June 30, 1991 and December 31, 1990 shall be deemed to be references to June
30, 1994 and December 31, 1993, respectively; and the reference in Section 4.10
of the Credit Agreement to December 31, 1990 shall be deemed to be a reference
to December 31, 1993.
Effectiveness of Amendment.
This Amendment shall be effective from and after the Effective Date upon
satisfaction of the conditions precedent referred to herein.
Effect of Amendment.
The Credit Agreement, as amended by this Amendment, is in all respects
ratified, approved and confirmed and shall, as so amended, remain in full force
and effect.
Governing Law.
This Amendment shall be deemed to be a contract under the laws of the State
of New York and for all purposes shall be governed by and construed and
enforced in accordance with the laws of said State.
Counterparts.
This Amendment may be executed in any number of counterparts and by the
different parties hereto on separate counterparts, each of which, when so
executed, shall be deemed an original, but all such counterparts shall
constitute but one and the same instrument.
- 21 -
24
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first above written.
CURTISS-WRIGHT CORPORATION
Gary Benschip
By Gary Benschip
Title: Treasurer
MELLON BANK, N.A., individually and as Agent
Joseph F. Bond, Jr
By Joseph F. Bond, Jr
Title: Vice President
MIDLANTIC BANK, NATIONAL ASSOCIATION
(formerly Midlantic National Bank)
Edward Tessalone
By Edward Tessalone
Title: Vice President
NATIONSBANK OF NORTH CAROLINA, N.A.
Moses James Sawney
By Moses James Sawney
Title: Vice President
THE BANK OF NOVA SCOTIA
Stephen Lockhart
By Stephen Lockhart
Title: Sr. Manager
- 22 -
25
EXHIBIT (4) (iii)
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
SHORT TERM CREDIT
AGREEMENT
dated as of October 29, 1994
among
CURTISS-WRIGHT CORPORATION,
as Borrower,
THE LENDERS PARTIES HERETO FROM TIME TO TIME
and
MELLON BANK, N.A.,
as Agent
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
26
Table of Contents
---------------------------------------------------
Section Title Page
----------- --------------------------------------------------- ----
ARTICLE I DEFINITIONS; CONSTRUCTION . . . . . . . . . . . . .
1.01 Certain Definitions . . . . . . . . . . . . . . . . 1
1.02 Construction. . . . . . . . . . . . . . . . . . . . 10
1.03 Accounting Principles . . . . . . . . . . . . . . . 10
ARTICLE II THE CREDITS . . . . . . . . . . . . . . . . . . . . 11
2.01 Revolving Credit Loans. . . . . . . . . . . . . . . 11
2.02 Fees; Reduction of the Committed Amounts. . . . . . 11
2.03 Making of Loans . . . . . . . . . . . . . . . . . . 12
2.04 Interest Rates. . . . . . . . . . . . . . . . . . . 13
2.05 Conversion or Renewal of Interest Rate Options. . . 19
2.06 Prepayments Generally . . . . . . . . . . . . . . . 20
2.07 Optional Prepayments. . . . . . . . . . . . . . . . 20
2.08 Interest Payment Dates. . . . . . . . . . . . . . . 20
2.09 Pro Rata Treatment; Payments Generally. . . . . . . 21
2.10 Additional Compensation in Certain Circumstances. . 22
2.11 HLT Classification. . . . . . . . . . . . . . . . . 24
2.12 Taxes . . . . . . . . . . . . . . . . . . . . . . . 25
2.13 Funding by Branch, Subsidiary or Affiliate. . . . . 27
2.14 Extension of Expiration Date. . . . . . . . . . . . 28
ARTICLE III REPRESENTATIONS AND WARRANTIES. . . . . . . . . . . 29
3.01 Incorporation by Reference. . . . . . . . . . . . . 29
ARTICLE IV CONDITIONS OF LENDING . . . . . . . . . . . . . . . 29
4.01 Conditions to Making of Initial Loans . . . . . . . 29
4.02 Conditions to All Loans . . . . . . . . . . . . . . 30
ARTICLE V COVENANTS . . . . . . . . . . . . . . . . . . . . . 31
5.01 Incorporation by Reference. . . . . . . . . . . . . 31
ARTICLE VI DEFAULTS. . . . . . . . . . . . . . . . . . . . . . 31
6.01 Events of Default . . . . . . . . . . . . . . . . . 31
6.02 Consequences of an Event of Default . . . . . . . . 34
ARTICLE VII THE AGENT. . . . . . . . . . . . . . . . . . . . . . 34
7.01 Appointment . . . . . . . . . . . . . . . . . . . . 34
7.02 General Nature of Agent's Duties. . . . . . . . . . 35
7.03 Exercise of Powers. . . . . . . . . . . . . . . . . 36
7.04 General Exculpatory Provisions. . . . . . . . . . . 36
7.05 Administration by the Agent . . . . . . . . . . . . 37
7.06 Lender Not Relying on Agent or Other Lenders. . . . 38
7.07 Indemnification . . . . . . . . . . . . . . . . . . 38
7.08 Agent in its Individual Capacity. . . . . . . . . . 39
7.09 Holders of Notes. . . . . . . . . . . . . . . . . . 39
7.10 Successor Agent . . . . . . . . . . . . . . . . . . 39
7.11 Additional Agents . . . . . . . . . . . . . . . . . 40
7.12 Calculations. . . . . . . . . . . . . . . . . . . . 40
7.13 Funding by Agent. . . . . . . . . . . . . . . . . . 40
27
ARTICLE VIII MISCELLANEOUS . . . . . . . . . . . . . . . . . . . 41
8.01 Holidays. . . . . . . . . . . . . . . . . . . . . . 41
8.02 Records . . . . . . . . . . . . . . . . . . . . . . 41
8.03 Amendments and Waivers. . . . . . . . . . . . . . . 41
8.04 No Implied Waiver; Cumulative Remedies. . . . . . . 42
8.05 Notices . . . . . . . . . . . . . . . . . . . . . . 42
8.06 Expenses; Taxes; Indemnity. . . . . . . . . . . . . 43
8.07 Severability. . . . . . . . . . . . . . . . . . . . 44
8.08 Prior Understandings. . . . . . . . . . . . . . . . 44
8.09 Duration; Survival. . . . . . . . . . . . . . . . . 45
8.10 Counterparts. . . . . . . . . . . . . . . . . . . . 45
8.11 Limitation on Payments. . . . . . . . . . . . . . . 45
8.12 Set-Off . . . . . . . . . . . . . . . . . . . . . . 45
8.13 Sharing of Collections. . . . . . . . . . . . . . . 46
8.14 Successors and Assigns; Participations; Assignments 47
8.15 Governing Law; Submission to Jurisdiction:
Limitation of Liability . . . . . . . . . . . . . 50
8.16 Confidentiality . . . . . . . . . . . . . . . . . . 50
Exhibit A--Form of Note
Exhibit B--Form of Opinion of Counsel
Exhibit C--Form of Transfer Supplement
28
SHORT TERM
CREDIT AGREEMENT
THIS SHORT TERM CREDIT AGREEMENT (this "Agreement"), dated as of
October 29, 1994, by and among CURTISS-WRIGHT CORPORATION, a Delaware
corporation (the "Borrower"), the lenders parties hereto from time to time (the
"Lenders", as defined further below) and MELLON BANK, N.A., a national banking
association, as agent for the Lenders hereunder (in such capacity, together
with its successors in such capacity, the "Agent").
The Borrower has requested the Agent and the Lenders to enter into
this Agreement and extend credit as herein provided. The proceeds of the
borrowings hereunder will be used by the Borrower for general working capital
purposes.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained and intending to be legally bound hereby, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS; CONSTRUCTION
1.01. Certain Definitions. In addition to other words and terms
defined elsewhere in this Agreement, as used herein the following words and
terms shall have the following meanings, respectively, unless the context
hereof otherwise clearly requires:
"Affected Lender" shall have the meaning set forth in Section 2.04(e) hereof.
"Affiliate" of the Borrower shall mean any Person which directly or
indirectly controls or is controlled by or is under common control with the
Borrower. For purpose of this definition "control" (including, with correla-
tive meanings, the terms "controlled by" and "under common control with") means
the possession, directly or indirectly, of the power to direct or cause the
direction of management policies, whether through ownership of voting
securities or by contract or otherwise.
"Applicable Funding Rate" shall have the meaning set forth in Section 2.10(b)
hereof.
"Applicable Margin" shall have the meaning set forth in Section 2.04(b)
hereof.
"Assessment Rate" shall have the meaning set forth in Section 2.04(a) hereof.
"Base Rate" shall have the meaning set forth in Section 2.04(a) hereof.
"Base Rate Option" shall have the meaning set forth in Section 2.04(a)
hereof.
"Base Rate Portion" of any Loan or Loans shall mean at any time the portion,
including the whole, of such Loan or Loans bearing interest at such time
(i) under the Base Rate Option or (ii) in accordance with Section 2.09(c)(ii)
hereof. If no Loan or Loans is specified, "Base Rate Portion" shall refer to
the Base Rate Portion of all Loans outstanding at such time.
"Business Day" shall mean any day other than a Saturday, Sunday, public
holiday under the laws of the Commonwealth of Pennsylvania or the State of
New York or other day on which banking institutions are authorized or obligated
to close in the city in which is located the Agent's Office.
- 1 -
29
"CD Rate" shall have the meaning set forth in Section 2.04(a) hereof.
"CD Rate Funding Period" shall have the meaning set forth in Section 2.04(c)
hereof.
"CD Rate Option" shall have the meaning set forth in Section 2.04(a) hereof.
"CD Rate Portion" of any Loan or Loans shall mean at any time the portion,
including the whole, of such Loan or Loans bearing interest at any time under
the CD Rate Option or at a rate calculated by reference to the CD Rate under
Section 2.09(c)(i) hereof. If no Loan or Loans is specified, "CD Rate Portion"
shall refer to the CD Rate Portion of all Loans outstanding at such time.
"CD Rate Reserve Percentage" shall have the meaning set forth in Section
2.04(a) hereof.
"Change of Control" shall mean that any Person or group of Persons (as used
in Sections 13 and 14 of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and the rules and regulations thereunder) shall have become
the beneficial owner (as defined in Rules 13d-3 and 13d-5 promulgated by the
Securities and Exchange Commission (the "SEC") under the Exchange Act) of 50%
or more of the combined voting power of all the outstanding voting securities
of the Borrower; provided, that none of Unitrin Corporation, Argonaut Insurance
Co. or any of their respective Subsidiaries shall be deemed to be a Person for
purposes of this definition.
"Closing Date" shall mean the date on which the last of the conditions set
forth in Section 4.01 hereof is satisfied.
"Code" means the Internal Revenue Code of 1986, as amended, and any successor
statute of similar import, and regulations thereunder, in each case as in
effect from time to time. References to sections of the Code shall be
construed also to refer to any successor sections.
"Commitment" of a Lender shall mean the Revolving Credit Commitment of such
Lender.
"Commitment Percentage" of a Lender at any time shall mean the Commitment
percentage for such Lender set forth below its name on the signature page
hereof, subject to adjustment as provided in Section 2.14 hereof and subject
to transfer to another Lender as provided in Section 8.14 hereof.
"Corresponding Source of Funds" shall mean:
(a) In the case of any Funding Segment of the CD Rate Portion, the proceeds
of hypothetical issuances by a Lender of one or more of its certificates
of deposit at the beginning of the CD Rate Funding Period corresponding
to such Funding Segment, having maturities approximately equal to such CD
Rate Funding Period and in an aggregate amount approximately equal to
such Lender's Pro Rata share of such Funding Segment; and
(b) In the case of any Funding Segment of the Euro-Rate Portion, the proceeds
of hypothetical receipts by a Notional Euro-Rate Funding Office or by a
Lender through a Notional Euro-Rate Funding Office of one or more Dollar
deposits in the interbank eurodollar market at the beginning of the
Euro-Rate Funding Period corresponding to such Funding Segment having
- 2 -
30
maturities approximately equal to such Euro-Rate Funding Period and in an
aggregate amount approximately equal to such Lender's Pro Rata share of
such Funding Segment.
"Credit Agreement" shall mean the Credit Agreement dated as of October 29,
1991 among the Borrower, certain Lenders named therein, and Mellon Bank, N.A.,
as Agent, as amended from time to time.
"Debt Instrument" shall have the meaning set forth in Section 6.01(e) hereof.
"Dollar," "Dollars" and the symbol "$" shall mean lawful money of the United
States of America.
"Euro-Rate" shall have the meaning set forth in Section 2.04(a) hereof.
"Euro-Rate Funding Period" shall have the meaning set forth in Section
2.04(c) hereof.
"Euro-Rate Option" shall have the meaning set forth in Section 2.04(a)
hereof.
"Euro-Rate Portion" of any Loan or Loans shall mean at any time the portion,
including the whole, of such Loan or Loans bearing interest at any time under
the Euro-Rate Option or at a rate calculated by reference to the Euro-Rate
under Section 2.09(c)(i) hereof. If no Loan or Loans is specified, "Euro-Rate
Portion" shall refer to the Euro-Rate Portion of all Loans outstanding at such
time.
"Euro-Rate Reserve Percentage" shall have the meaning set forth in Section
2.04(a) hereof.
"Event of Default" shall mean any of the Events of Default described in
Section 6.01 hereof.
"Expiration Date" shall mean October 29, 1995, or such later date to which
the Expiration Date may be extended pursuant to Section 2.14 hereof. Notwith-
standing the foregoing, the Commitment shall never have a remaining term of
more than 364 days, and if for any reason the Agent receives the consent of any
Lender to an extension of the Expiration Date pursuant to Section 2.14 hereof
more than 364 days before the requested new Expiration Date, such consent of
such Lender shall be considered absolutely revocable and in no manner binding
on such Lender until such date that is 364 days prior to such requested new
Expiration Date.
"Extension Request" shall have the meaning set forth in Section 2.14 hereof.
"Federal Funds Effective Rate" for any day shall mean the rate per annum
(rounded upward to the nearest 1/100 of 1%) determined by the Agent (which
determination shall be conclusive absent manifest error) to be the rate per
annum announced by the Federal Reserve Bank of New York (or any successor) on
such day as being the weighted average of the rates on overnight Federal funds
transactions arranged by Federal funds brokers on the previous trading day, as
computed and announced by such Federal Reserve Bank (or any successor) in
substantially the same manner as such Federal Reserve Bank computes and
announces the weighted average it refers to as the "Federal Funds Effective
Rate" as of the date of this Agreement; provided, that if such Federal Reserve
Bank (or its successor) does not announce such rate on any day, the "Federal
- 3 -
31
Funds Effective Rate" for such day shall be the Federal Funds Effective Rate
for the last day on which such rate was announced.
"Funding Breakage Date" shall have the meaning set forth in Section 2.10(b)
hereof.
"Funding Breakage Indemnity" shall have the meaning set forth in Section
2.10(b) hereof.
"Funding Periods" shall have the meaning set forth in Section 2.04(c) hereof.
"Funding Segment" of the CD Rate Portion or the Euro-Rate Portion, as the
case may be, of the Revolving Credit Loans at any time shall mean the entire
principal amount of such Portion to which at the time in question there is
applicable a particular Funding Period beginning on a particular day and ending
on a particular day. (By definition, each such Portion is at all times
composed of an integral number of discrete Funding Segments and the sum of the
principal amounts of all Funding Segments of any such Portion at any time
equals the principal amount of such Portion at such time.)
"GAAP" shall have the meaning set forth in Section 1.03 hereof.
"HLT Classification" shall have the meaning set forth in Section 2.11 hereof.
"Initial Revolving Credit Committed Amount" shall have the meaning set forth
in Section 2.01(a) hereof.
"Lender" shall mean any of the Lenders listed on the signature pages hereof,
subject to the provisions of Section 8.14 hereof pertaining to Persons becoming
or ceasing to be Lenders.
"Loan" shall mean any loan by a Lender to the Borrower under this Agreement,
and "Loans" shall mean all Loans made by the Lenders under this Agreement.
"Loan Documents" shall mean this Agreement, the Notes and the Transfer
Supplements, and all other agreements and instruments extending, renewing,
refinancing or refunding any indebtedness, obligation or liability arising
under any of the foregoing, in each case as the same may be amended, modified
or supplemented from time to time hereafter.
"London Business Day" shall mean a day for dealing in deposits in Dollars by
and among banks in the London interbank market and which is a Business Day.
"Material Adverse Effect" shall mean (a) a material adverse effect on the
business, operations or condition (financial or otherwise) of the Borrower and
its Subsidiaries taken as a whole or (b) a material adverse effect on the
ability of the Borrower to perform or comply with any of the terms and
conditions of any Loan Document.
"Nonextending Lender" shall have the meaning set forth in Section 2.14
hereof.
"Note" or "Notes" shall mean the Revolving Credit Note(s) of the Borrower
executed and delivered under this Agreement, together with all extensions,
renewals, refinancings or refundings of any thereof in whole or part.
"Notional Euro-Rate Funding Office" shall have the meaning given to that
term in Section 2.13(a) hereof.
- 4 -
32
"Office," when used in connection with the Agent, shall mean its office
located at One Mellon Bank Center, Pittsburgh, Pennsylvania 15258, or at such
other office or offices of the Agent or any branch, subsidiary or affiliate
thereof as may be designated in writing from time to time by the Agent to the
Borrower.
"Option" shall mean the Base Rate Option, the CD Rate Option or the Euro-
Rate Option, as the case may be.
"Participants" shall have the meaning set forth in Section 8.14(b) hereof.
"PBGC" means the Pension Benefit Guaranty Corporation established under
Title IV of ERISA or any other governmental agency, department or instrumen-
tality succeeding to the functions of said corporation.
"Pension-Related Event" shall mean any of the following events or conditions:
(a) Any action is taken by any Person (i) to terminate, or which would
result in the termination of, a Plan, either pursuant to its terms or by
operation of law (including, without limitation, any amendment of a Plan
which would result in a termination under Section 4041(e) of ERISA), or
(ii) to have a trustee appointed for a Plan pursuant to Section 4042 of
ERISA;
(b) PBGC notifies any Person of its determination that an event described in
Section 4042 of ERISA has occurred with respect to a Plan, that a Plan
should be terminated, or that a trustee should be appointed for a Plan;
(c) Any Reportable Event occurs with respect to a Plan;
(d) Any action occurs or is taken which could result in the Borrower becom-
ing subject to liability for a complete or partial withdrawal by any
Person from a Multiemployer Plan (including, without limitation, seller
liability incurred under Section 4204(a)(2) of ERISA), or the Borrower
or any Controlled Group Member receives from any Person a notice or
demand for payment on account of any such alleged or asserted liability;
or
(e) (i) There occurs any failure to meet the minimum funding standard under
Section 302 of ERISA or Section 412 of the Code with respect to a Plan,
or any tax return is filed showing any tax payable under Section 4971(a)
of the Code with respect to any such failure, or the Borrower or any
Controlled Group Member receives a notice of deficiency from the
Internal Revenue Service with respect to any alleged or asserted such
failure, or (ii) any request is made by any Person for a variance from
the minimum funding standard, or an extension of the period for amor-
tizing unfunded liabilities, with respect to a Plan.
"Person" shall mean an individual, corporation, partnership, trust,
unincorporated association, joint venture, joint-stock company, Governmental
Authority or any other entity.
"Plan" means any employee pension benefit plan within the meaning of Section
3(2) of ERISA (other than a Multiemployer Plan) covered by Title IV of ERISA
by reason of Section 4021 of ERISA, of which the Borrower or any Controlled
Group Member is or has been within the preceding five years a "contributing
sponsor" within the meaning of Section 4001(a)(13) of ERISA, or which is or has
been within the preceding five years maintained for employees of the Borrower
or any Controlled Group Member.
- 5 -
33
"Portion" shall mean the Base Rate Portion, the CD Rate Portion or the Euro-
Rate Portion, as the case may be.
"Postretirement Benefits" shall mean any benefits, other than retirement
income, provided by the Borrower to retired employees, or to their spouses,
dependents or beneficiaries, including, without limitation, group medical
insurance or benefits, or group life insurance or death benefits.
"Potential Default" shall mean any event or condition which with notice or
passage of time, or both, would constitute an Event of Default.
"Prime Rate" as used herein, shall mean the interest rate per annum announced
from time to time by Mellon Bank, N.A. as its prime rate.
"Pro Rata" shall mean from or to each Lender in proportion to its Commitment
Percentage.
"Purchasing Lender" shall have the meaning set forth in Section 8.14(c)
hereof.
"Register" shall have the meaning set forth in Section 8.14(d) hereof.
"Regular Payment Date" shall mean the first day of each December, March,
June and September after the date hereof.
"Replacement Lender" shall have the meaning set forth in Section 2.14 hereof.
"Reportable Event" means (i) a reportable event described in Section 4043 of
ERISA and regulations thereunder, (ii) a withdrawal by a substantial employer
from a Plan to which more than one employer contributes, as referred to in
Section 4063(b) of ERISA, (iii) a cessation of operations at a facility causing
more than twenty percent (20%) of Plan participants to be separated from
employment, as referred to in Section 4062(e) of ERISA, or (iv) a failure to
make a required installment or other payment with respect to a Plan when due in
accordance with Section 412 of the Code or Section 302 of ERISA which causes
the total unpaid balance of missed installments and payments (including unpaid
interest) to exceed $750,000.
"Required Lenders" shall mean, as of any date, Lenders which have made
Loans constituting, in the aggregate, at least 66 2/3% in principal amount
of Loans outstanding on such date or, if no Loans are outstanding on such date,
Lenders which have Commitments constituting, in the aggregate, at least 66 2/3%
of the total Commitments of all the Lenders.
"Responsible Officer" shall mean the Chairman, President, any Vice
President, the Controller or the Treasurer of the Borrower.
"Revolving Credit Commitment" shall have the meaning set forth in
Section 2.01(a) hereof.
"Revolving Credit Commitment Fee" shall have the meaning set forth in
Section 2.02(a) hereof.
"Revolving Credit Committed Amount" shall have the meaning set forth
in Section 2.01(a) hereof.
"Revolving Credit Loans" shall have the meaning set forth in Section
2.01(a) hereof.
- 6 -
34
"Revolving Credit Notes" shall mean the promissory notes of the
Borrower executed and delivered under Section 2.01(d) hereof and any promissory
note issued in substitution therefor pursuant to Sections 2.10(b) or 8.14(c)
hereof, together with all extensions, renewals, refinancings or refundings
thereof in whole or part.
"Significant Subsidiary" shall mean each of Curtiss-Wright Flight
Systems, Inc., Curtiss-Wright Flight System/Shelby, Inc., Target Rock
Corporation and Metal Improvement Company, Inc.
"Standard Notice" shall mean an irrevocable notice provided to the
Agent on a Business Day which is
(a) provided on the same Business Day in the case of selection of,
conversion to or renewal of the Base Rate Option or prepayment of any
Base Rate Portion;
(b) provided on the same Business Day in the case of selection of,
conversion to or renewal of the CD Rate Option or prepayment of any
CD Rate Portion; and
(c) provided at least three London Business Days in advance in the
case of selection of, conversion to or renewal of the Euro-Rate
Option or prepayment of any Euro-Rate Portion.
Standard Notice must be provided no later than 10:00 a.m., Pittsburgh
time, on the last day permitted for such notice.
"Subsidiary" of a Person at any time shall mean any corporation of
which a majority (by number of shares or number of votes) of any class of
outstanding capital stock normally entitled to vote for the election of one or
more directors (regardless of any contingency which does or may suspend or
dilute the voting rights of such class) is at such time owned directly or
indirectly, beneficially or of record, by such Person or one or more
Subsidiaries of such Person, and any trust of which a majority of the
beneficial interest is at such time owned directly or indirectly, beneficially
or of record, by such Person or one or more Subsidiaries of such Person.
"Taxes" shall have the meaning set forth in Section 2.12 hereof.
"Transfer Effective Date" shall have the meaning set forth in the
applicable Transfer Supplement.
"Transfer Supplement" shall have the meaning set forth in Section
8.14(c) hereof.
1.02. Construction. Unless the context of this Agreement otherwise
clearly requires, references to the plural include the singular, the singular
the plural and the part the whole; "or" has the inclusive meaning represented
by the phrase "and/or"; and "property" includes all properties and assets of
any kind or nature, tangible or intangible, real, personal or mixed.
References in this Agreement to "determination" (and similar terms) by the
Agent or by any Lender include good faith estimates by the Agent or by any
Lender (in the case of quantitative determinations) and good faith beliefs by
the Agent or by any Lender (in the case of qualitative determinations). The
words "hereof," "herein," "hereunder" and similar terms in this Agreement refer
to this Agreement as a whole and not to any particular provision of this
Agreement. The section and other headings contained in this Agreement and the
Table of Contents preceding this Agreement are for reference purposes only and
- 7 -
35
shall not control or affect the construction of this Agreement or the interpre-
tation thereof in any respect. Section, subsection and exhibit references are
to this Agreement unless otherwise specified.
1.03. Accounting Principles.
(a) As used herein, "GAAP" shall mean generally accepted accounting
principles in the United States, applied on a basis consistent with the
principles used in preparing the Borrower's financial statements as of December
31, 1993 and for the fiscal year then ended, as referred to in Section 4.05
hereof.
(b) Except as otherwise provided in this Agreement, all computations
and determinations as to accounting or financial matters shall be made, and all
financial statements to be delivered pursuant to this Agreement shall be
prepared, in accordance with GAAP (including principles of consolidation where
appropriate), and all accounting or financial terms shall have the meanings
ascribed to such terms by GAAP.
(c) If and to the extent that the financial statements generally
prepared by the Borrower apply accounting principles other than GAAP, all
financial statements referred to in this Agreement or any other Loan Document
shall be delivered in duplicate, one set based on the accounting principles
then generally applied by the Borrower and one set based on GAAP. To the
extent this Agreement or such other Loan Document requires financial statements
to be accompanied by an opinion of independent accountants, each set of
financial statements shall be accompanied by such an opinion.
ARTICLE II
THE CREDITS
2.01. Revolving Credit Loans.
(a) Revolving Credit Commitments. Subject to the terms and condi-
tions and relying upon the representations and warranties herein set forth,
each Lender, severally and not jointly, agrees (such agreement being herein
called such Lender's "Revolving Credit Commitment") to make loans (the
"Revolving Credit Loans") to the Borrower at any time or from time to time on
or after the date hereof and to but not including the Expiration Date. A Lender
shall have no obligation to make any Revolving Credit Loan to the extent that
the aggregate principal amount of such Lender's Pro Rata share of the total
Revolving Credit Loans at any time outstanding would exceed such Lender's
Revolving Credit Committed Amount at such time. Each Lender's "Revolving
Credit Committed Amount" at any time shall be equal to the amount set forth as
its "Initial Revolving Credit Committed Amount" below its name on the signature
pages hereof, as either such amount may have been reduced under Section 2.02
hereof at such time, and subject to transfer to another Lender as provided in
Section 8.14 hereof.
(b) Nature of Credit. Within the limits of time and amount set forth
in this Section 2.01, and subject to the provisions of this Agreement, the
Borrower may borrow, repay and reborrow Revolving Credit Loans hereunder.
(c) Revolving Credit Notes. The obligation of the Borrower to repay
the unpaid principal amount of the Revolving Credit Loans made to it by each
Lender and to pay interest thereon shall be evidenced in part by promissory
notes of the Borrower, one to each Lender, dated the Closing Date (the
- 8 -
36
"Revolving Credit Notes") in substantially the form attached hereto as Exhibit
A, with the blanks appropriately filled, payable to the order of such Lender in
a face amount equal to such Lender's Initial Revolving Credit Committed Amount.
(d) Maturity. To the extent not due and payable earlier, the Revolv-
ing Credit Loans shall be due and payable on the Expiration Date.
2.02. Fees; Reduction of the Committed Amounts.
(a) Commitment Fee. The Borrower shall pay to the Agent for the
account of each Lender a commitment fee (the "Commitment Fee") equal to 0.125%
per annum (based on a year of 365 or 366 days, as the case may be, and actual
days elapsed), for each day from and including the date hereof to but not
including the Expiration Date, on the amount (not less than zero) equal to (i)
such Lender's Revolving Credit Committed Amount on such day, minus (ii) the
aggregate principal amount of such Lender's Revolving Credit Loans outstanding
on such day. Such Commitment Fee shall be due and payable for the preceding
period for which such fee has not been paid (x) on each Regular Payment Date,
(y) on the date of each reduction of the Revolving Credit Committed Amount
(whether optional or mandatory) on the amount so reduced and (z) on the
Expiration Date.
(b) Reduction of the Revolving Credit Committed Amounts. The Bor-
rower may at any time or from time to time reduce Pro Rata the Revolving Credit
Committed Amounts of the Lenders to an aggregate amount (which may be zero) not
less than the sum of the unpaid principal amount of the Revolving Credit Loans
then outstanding plus the principal amount of all Revolving Credit Loans not
yet made as to which notice has been given by the Borrower under Section 2.03
hereof. Any reduction of the Revolving Credit Committed Amounts shall be in an
aggregate amount which is a minimum amount of $5,000,000 and integral multiples
of $1,000,000 thereof. Reduction of the Revolving Credit Committed Amounts
shall be made by providing not less than 30 days' notice (which notice shall be
irrevocable) to such effect to the Agent. After the date specified in such
notice the Revolving Credit Commitment Fee shall be calculated upon the
Revolving Credit Committed Amounts as so reduced. Upon reduction of the
Revolving Credit Committed Amounts to zero, payment in full of all Loans, this
Agreement shall be terminated. After the date specified in such notice the
Commitment Fee shall be calculated upon the Revolving Credit Committed Amounts
as so reduced.
2.03. Making of Loans. Whenever the Borrower desires that the
Lenders make Revolving Credit Loans, the Borrower shall provide Standard Notice
to the Agent setting forth the following information:
(a) The date, which shall be a Business Day, on which such proposed
Loans are to be made;
(b) The aggregate principal amount of such proposed Loans, which
shall be the sum of the principal amounts selected pursuant to clause
(c) of this Section 2.03;
(c) The interest rate Option or Options selected in accordance with
Section 2.04(a) hereof and the principal amounts selected in accor-
dance with Section 2.04(d) hereof of the Base Rate Portion and each
Funding Segment of the CD Rate Portion and the Euro-Rate Portion, as
the case may be, of such proposed Loans; and
- 9 -
37
(d) With respect to each such Funding Segment of such proposed Loans,
the Funding Period to apply to such Funding Segment, selected in
accordance with Section 2.04(c) hereof.
Standard Notice having been so provided, the Agent shall promptly notify
each Lender of the information contained therein and of the amount of such
Lender's Loan. Unless any applicable condition specified in Article V hereof
has not been satisfied, on the date specified in such Standard Notice each
Lender shall make the proceeds of its Loan available to the Agent at the
Agent's Office, no later than 12:00 o'clock Noon, Pittsburgh time, in funds
immediately available at such Office. The Agent will make the funds so
received available to the Borrower in funds immediately available at the
Agent's Office.
2.04. Interest Rates.
(a) Optional Bases of Borrowing. The unpaid principal amount of the
Loans shall bear interest for each day until due on one or more bases
selected by the Borrower from among the interest rate Options set
forth below. Subject to the provisions of this Agreement the Bor-
rower may select different Options to apply simultaneously to dif-
ferent Portions of the Loans and may select different Funding Seg-
ments to apply simultaneously to different parts of the CD Rate
Portion or the Euro-Rate Portion of the Loans. The aggregate number
of Funding Segments applicable to the CD Rate Portion and the Euro-
Rate Portion of the Revolving Credit Loans at any time shall not
exceed five.
(i) Base Rate Option: A rate per annum (computed on the basis of a
year of 365 or 366 days, as the case may be, and actual days elapsed) for each
day equal to the Base Rate for such day plus the Applicable Margin for such
day. The "Base Rate" for any day shall mean the greater of (A) the Prime Rate
for such day or (B) 0.625% plus the Federal Funds Effective Rate for such day,
such interest rate to change automatically from time to time effective as of
the effective date of each change in the Prime Rate or the Federal Funds
Effective Rate.
(ii) CD Rate Option: A rate per annum (based on a year of 360 days
and actual days elapsed) for each day equal to the CD Rate for such day plus
the Applicable Margin for such day. "CD Rate" for any day shall mean for each
Funding Segment of the CD Rate Portion corresponding to a proposed or existing
CD Rate Funding Period the rate per annum determined by the Agent by adding
(A) the rate per annum obtained by dividing (the resulting quotient
to be rounded upward to the nearest 1/100 of 1%) (1) the rate of
interest (which shall be the same for each day in such CD Rate
Funding Period) determined in good faith by the Agent in accordance
with its usual procedures (which determination shall be conclusive
absent manifest error) to be the average of the secondary market bid
rates at or about 11:00 a.m., Eastern time, on the first day of such
CD Rate Funding Period by dealers of recognized standing in negoti-
able certificates of deposit for the purchase at face value of
negotiable certificates of deposit of major money center banks
for delivery on such day in amounts comparable to such Funding
Segment and having maturities comparable to such CD Rate Funding
Period by (2) a number equal to 1.00 minus the CD Rate Reserve
Percentage for such CD Rate Funding Period plus
- 10 -
38
(B) the Assessment Rate.
The "CD Rate" may also be expressed by the following formula:
[average of the secondary market ]
[bid rates determined by the Agent]
CD Rate = [per subsection (A)(1) ] + Assessment Rate
-----------------------------------
[1.00 - CD Rate Reserve Percentage]
"CD Rate Reserve Percentage" for any day and for any CD Rate Funding
Period shall mean the percentage (expressed as a decimal, rounded upward to the
nearest 1/100 of 1%), as determined in good faith by the Agent (which determin-
ation shall be conclusive absent manifest error), which is in effect on such
day as prescribed by the Board of Governors of the Federal Reserve System (or
any successor) representing the maximum reserve requirement (including without
limitation supplemental, marginal and emergency reserve requirements) for a
member bank of such System in respect of nonpersonal time deposits in Dollars
in the United States having a maturity comparable to such CD Rate Funding
Period. The CD Rate shall be adjusted automatically as of the effective date
of each change in the CD Rate Reserve Percentage. The CD Rate Option shall be
calculated in accordance with the foregoing whether or not any Lender is
actually required to hold such reserves in connection with its funding hereof
or, if required to hold such reserves, is required to hold reserves at the "CD
Rate Reserve Percentage" as herein defined.
"Assessment Rate" for any day shall mean the rate per annum (rounded
upward to the nearest 1/100 of 1%) determined in good faith by the Agent in
accordance with its usual procedures (which determination shall be conclusive
absent manifest error) to be the maximum rate per annum payable by a depository
institution insured by the Federal Deposit Insurance Corporation (or any
successor) for such day as an assessment for insurance on Dollar time deposits,
exclusive of any credit that is or may be allowed against such assessment on
account of assessment payments made or to be made by such depository institu-
tion. The CD Rate shall be adjusted automatically as of the effective date of
each change in the Assessment Rate. The CD Rate Option shall be calculated in
accordance with the foregoing whether or not any Lender is actually required to
pay Federal Deposit Insurance Corporation assessments or, if required to pay
such assessments, is required to pay such assessments at the "Assessment Rate"
as herein defined.
The Agent shall give prompt notice to the Borrower and to the Lenders
of the CD Rate determined or adjusted in accordance with the definition of CD
Rate, which determination or adjustment shall be conclusive absent manifest
error.
(iii) Euro-Rate Option: A rate per annum (based on a year of 360 days
and actual days elapsed) for each day equal to the Euro-Rate for such day plus
the Applicable Margin for such day. "Euro-Rate" for any day, as used herein,
shall mean for each Funding Segment of the Euro-Rate Portion corresponding to a
proposed or existing Euro-Rate Funding Period the rate per annum determined by
the Agent by dividing (the resulting quotient to be rounded upward to the
nearest 1/100 of 1%) (A) the rate of interest (which shall be the same for each
day in such Euro-Rate Funding Period) determined in good faith by the Agent in
accordance with its usual procedures (which determination shall be conclusive
absent manifest error) to be the average of the rates per annum for deposits in
Dollars offered to major money center banks in the London interbank market at
approximately 11:00 a.m., London time, two London Business Days prior to the
- 11 -
39
first day of such Euro-Rate Funding Period for delivery on the first day of
such Euro-Rate Funding Period in amounts comparable to such Funding Segment and
having maturities comparable to such Funding Period by (B) a number equal to
1.00 minus the Euro-Rate Reserve Percentage.
The "Euro-Rate" may also be expressed by the following formula:
[average of the rates offered to major money ]
[center banks in the London interbank market ]
Euro-Rate = [determined by the Agent per subsection (A) ]
-----------------------------------------------
[1.00 - Euro-Rate Reserve Percentage ]
"Euro-Rate Reserve Percentage" for any day shall mean the percentage
(expressed as a decimal, rounded upward to the nearest 1/100 of 1%), as deter-
mined in good faith by the Agent (which determination shall be conclusive ab-
sent manifest error), which is in effect on such day as prescribed by the Board
of Governors of the Federal Reserve System (or any successor) representing the
maximum reserve requirement (including, without limitation, supplemental,
marginal and emergency reserve requirements) with respect to eurocurrency
funding (currently referred to as "Eurocurrency liabilities") of a member bank
in such System. The Euro-Rate shall be adjusted automatically as of the
effective date of each change in the Euro-Rate Reserve Percentage. The
Euro-Rate Option shall be calculated in accordance with the foregoing whether
or not any Lender is actually required to hold reserves in connection with its
eurocurrency funding or, if required to hold such reserves, is required to hold
reserves at the "Euro-Rate Reserve Percentage" as herein defined.
The Agent shall give prompt notice to the Borrower and to the Lenders
of the Euro-Rate determined or adjusted in accordance with the definition of
the Euro-Rate, which determination or adjustment shall be conclusive absent
manifest error.
(b) Applicable Margin. The "Applicable Margin" for each interest rate
Option for any day shall mean the percentage set forth below:
Interest Rate Option Applicable Margin
-------------------- -----------------
Base Rate Option 0
CD Rate Option 0.625%
Euro Rate Option 0.625%
(c) Funding Periods. At any time when the Borrower shall select,
convert to or renew the CD Rate Option or the Euro-Rate Option to apply to any
part of the Loans, the Borrower shall specify one or more periods (the "Funding
Periods") during which each such Option shall apply, such Funding Periods being
as set forth below:
Interest Rate Option Available Funding Periods
-------------------- -------------------------
CD Rate Option 30, 60, 90 or 180 days or such longer period
as may be offered by all of the Lenders in
their sole discretion ("CD Rate Funding
Period"); and
Euro-Rate Option One, two, three or six months or such longer
period as may be offered by all of the Lenders
in their sole discretion ("Euro-Rate Funding
Period");
- 12 -
40
provided, that:
--------
(i) Each CD Rate Funding Period which would otherwise end on a day
which is not a Business Day shall be extended to the next succeeding
Business Day;
(ii) Each Euro-Rate Funding Period shall begin on a London Business
Day, and the term "month", when used in connection with a Euro-Rate
Funding Period, shall be construed in accordance with prevailing
practices in the interbank eurodollar market at the commencement of such
Euro-Rate Funding Period, as determined in good faith by the Agent (which
determination shall be conclusive);
(iii) The Borrower may not select a Funding Period that would end after
the Expiration Date; and
(iv) The Borrower shall, in selecting any Funding Period, allow for
scheduled mandatory payments and foreseeable mandatory prepayments of the
Loans.
(d) Transactional Amounts. Every selection of, conversion from,
conversion to or renewal of an interest rate Option and every payment or pre-
payment of any Loans shall be in a principal amount such that after giving
effect thereto the aggregate principal amount of the Base Rate Portion of the
Revolving Credit Loans, or the aggregate principal amount of each Funding
Segment of the CD Rate Portion or the Euro-Rate Portion of the Revolving Credit
Loans, shall be as set forth below:
Portion or Funding Segment Allowable Aggregate Principal Amounts
-------------------------- -------------------------------------
Base Rate Portion $1,000,000 or an integral
multiple of $500,000 thereof;
Each Funding Segment $5,000,000 or an integral
of the CD Rate Portion multiple of $500,000 thereof; and
Each Funding Segment $5,000,000 or an integral
of the Euro-Rate Portion multiple of $500,000 thereof.
(e) CD Rate or Euro-Rate Unascertainable; Impracticability. If
(i) on any date on which a CD Rate or a Euro-Rate would otherwise be
set the Agent (in the case of clauses (A) or (B) below) or any Lender (in the
case of clause (C) below) shall have determined in good faith (which determin-
ation shall be conclusive absent manifest error) that:
(A) adequate and reasonable means do not exist for ascertaining such
CD Rate or Euro-Rate,
(B) a contingency has occurred which materially and adversely affects
the secondary market for negotiable certificates of deposit main-
tained by dealers of recognized standing or the interbank eurodollar
market, as the case may be, or
(C) the effective cost to such Lender of funding a proposed Funding
Segment of the CD Rate Portion or the Euro-Rate Portion from a
Corresponding Source of Funds shall exceed the CD Rate or the Euro-
Rate, as the case may be, applicable to such Funding Segment, or
- 13 -
41
(ii) at any time any Lender shall have determined in good faith (which
determination shall be conclusive absent manifest error) that the making,
maintenance or funding of any part of the CD Rate Portion or the Euro-Rate
Portion has been made impracticable or unlawful by compliance by such
Lender or a Notional Euro-Rate Funding Office in good faith with any Law
or guideline or interpretation or administration thereof by any Govern-
mental Authority charged with the interpretation or administration thereof
or with any request or directive of any such Governmental Authority
(whether or not having the force of law);
then, and in any such event, the Agent or such Lender, as the case may be, may
notify the Borrower of such determination (and any Lender giving such notice
shall notify the Agent). Upon such date as shall be specified in such notice
(which shall not be earlier than the date such notice is given), the obligation
of each of the Lenders to allow the Borrower to select, convert to or renew the
CD Rate Option or Euro-Rate Option, as the case may be, shall be suspended
until the Agent or such Lender, as the case may be, shall have later notified
the Borrower (and any Lender giving such notice shall notify the Agent) of the
Agent's or such Lender's determination in good faith (which determination shall
be conclusive absent manifest error) that the circumstance giving rise to such
previous determination no longer exist.
If any Lender notifies the Borrower of a determination under subsec-
tion (ii) of this Section 2.04(e), the CD Rate Portion or the Euro-Rate Por-
tion, as the case may be, of the Loans of such Lender (the "Affected Lender")
shall automatically be converted to the Base Rate Option as of the date
specified in such notice (and accrued interest thereon shall be due and payable
on such date).
If at the time the Agent or a Lender makes a determination under
subsection (i) or (ii) of this Section 2.04(e) the Borrower previously has
notified the Agent that it wishes to select, convert to or renew the CD Rate
Option or the Euro-Rate Option, as the case may be, with respect to any pro-
posed Loans but such Loans have not yet been made, such notification shall be
deemed to provide for selection of, conversion to or renewal of the Base Rate
Option instead of the CD Rate Option or the Euro-Rate Option, as the case may
be, with respect to such Loans or, in the case of a determination by a Lender,
such Loans of such Lender.
2.05. Conversion or Renewal of Interest Rate Options.
(a) Conversion or Renewal. Subject to the provisions of Sections
2.09(c) and 2.10(b) hereof, unless an Event of Default shall have occurred and
be continuing, the Borrower may convert any part of its Loans from any interest
rate Option or Options to one or more different interest rate Options and may
renew the CD Rate Option or the Euro-Rate Option as to any Funding Segment of
the CD Rate Portion or the Euro-Rate Portion:
(i) At any time with respect to conversion from the Base Rate Option; or
(ii) At the expiration of any Funding Period with respect to conver-
sions from or renewals of the CD Rate Option or the Euro-Rate Option, as the
case may be, as to the Funding Segment corresponding to such expiring Funding
Period.
- 14 -
42
Whenever the Borrower desires to convert or renew any interest rate Option
or Options, the Borrower shall provide to the Agent Standard Notice setting
forth the following information:
(w) The date, which shall be a Business Day, on which the proposed
conversion or renewal is to be made;
(x) The principal amounts selected in accordance with Section 2.04(d)
hereof of the Base Rate Portion and each Funding Segment of the CD Rate Portion
and the Euro-Rate Portion, as the case may be, to be converted from or renewed;
(y) The interest rate Option or Options selected in accordance with
Section 2.04(a) hereof and the principal amounts selected in accordance with
Section 2.04(d) hereof of the Base Rate Portion and each Funding Segment of the
CD Rate Portion and the Euro-Rate Portion, as the case may be, to be converted;
and
(z) With respect to each Funding Segment to be converted to or
renewed, the Funding Period selected in accordance with Section 2.04(c) hereof
to apply to such Funding Segment.
Standard Notice having been so provided, after the date specified in such
Standard Notice, interest shall be calculated upon the principal amount of the
Loans as so converted or renewed. Interest on the principal amount of any part
of the Loans converted or renewed (automatically or otherwise) shall be due and
payable on the conversion or renewal date.
(b) Failure to Convert or Renew. Absent due notice from the Borrower
of conversion or renewal in the circumstances described in Section 2.05(a)(ii)
hereof, any part of the CD Rate Portion or Euro-Rate Portion for which such
notice is not received shall be converted automatically to the Base Rate Option
on the last day of the expiring Funding Period.
2.06. Prepayments Generally. Whenever the Borrower desires or is
required to prepay any part of its Loans, it shall provide Standard Notice to
the Agent setting forth the following information:
(a) The date, which shall be a Business Day, on which the proposed
prepayment is to be made;
(b) The total principal amount of such prepayment, which shall be the
sum of the principal amounts selected pursuant to clause (c) of this
Section 2.06; and
(c) The principal amounts selected in accordance with Section 2.04(d)
hereof of the Base Rate Portion and each part of each Funding Segment
of the CD Rate Portion and the Euro-Rate Portion, as the case may be,
to be prepaid.
Standard Notice having been so provided, on the date specified in such
Standard Notice, the principal amounts of the Base Rate Portion and each
Funding Segment of the CD Rate Portion and the Euro-Rate Portion specified in
such notice, together with interest on each such principal amount to such date,
shall be due and payable.
2.07. Optional Prepayments. The Borrower shall have the right at its
option from time to time to prepay its Loans in whole or part without premium
or penalty (subject, however, to Section 2.10(b) hereof):
- 15 -
43
(a) At any time with respect to any part of the Base Rate Portion; or
(b) At the expiration of any Funding Period with respect to prepayment
of the CD Rate Portion or the Euro-Rate Portion, as the case may be,
with respect to any part of the Funding Segment corresponding to such
expiring Funding Period.
Any such prepayment shall be made in accordance with Section 2.06 hereof.
2.08. Interest Payment Dates. Interest on the Base Rate Portion
shall be due and payable on each Regular Payment Date. Interest on each
Funding Segment of the CD Rate Portion shall be due and payable on the last day
of the corresponding CD Rate Funding Period and, if such CD Rate Funding Period
is longer than 90 days, also every 90th day during such CD Rate Funding Period.
Interest on each Funding Segment of the Euro-Rate Portion shall be due and
payable on the last day of the corresponding Euro-Rate Funding Period and, if
such Euro-Rate Funding Period is longer than three months, also every third
month during such Funding Period. After maturity of any part of the Loans (by
acceleration or otherwise), interest on such part of the Loans shall be due
and payable on demand.
2.09. Pro Rata Treatment; Payments Generally.
(a) Pro Rata Treatment. Each borrowing and conversion and renewal of
interest rate Options hereunder shall be made, and all payments made in respect
of principal, interest and Revolving Credit Commitment Fees due from the
Borrower hereunder or under the Notes shall be applied, Pro Rata from and to
each Lender, except for payments of interest involving an Affected Lender as
provided in Section 2.04(e) hereof and payments to a Lender under Sections 2.10
or 2.12 hereof. The failure of any Lender to make a Loan shall not relieve any
other Lender of its obligation to lend hereunder, but neither the Agent nor any
Lender shall be responsible for the failure of any other Lender to make a Loan.
(b) Payments Generally. All payments and prepayments to be made by
the Borrower in respect of principal, interest, fees, indemnity, expenses or
other amounts due from the Borrower hereunder or under any Loan Document shall
be payable in Dollars at 12:00 o'clock Noon, Pittsburgh time, on the day when
due without presentment, demand, protest or notice of any kind, all of which
are hereby expressly waived, and an action therefor shall immediately accrue,
without setoff, counterclaim, withholding or other deduction of any kind or
nature, except for payments to a Lender subject to a withholding deduction
under Section 2.12(c) hereof. Except for payments under Sections 2.10 and 8.06
hereof, such payments shall be made to the Agent at its Office in Dollars in
funds immediately available at such Office, and payments under Sections 2.10
and 8.06 hereof shall be made to the applicable Lender at such domestic account
as it shall specify to the Borrower from time to time in funds immediately
available at such account. Any payment or prepayment received by the Agent or
such Lender after 12:00 o'clock Noon, Pittsburgh time, on any day shall be
deemed to have been received on the next succeeding Business Day. The Agent
shall distribute to the Lenders all such payments received by it from the Bor-
rower as promptly as practicable after receipt by the Agent.
(c) Default Interest. To the extent permitted by law, from and after
the date on which an Event of Default shall have occurred hereunder, and so
long as such Event of Default continues to exist, principal, interest, fees,
indemnity, expenses or any other amounts due from the Borrower hereunder or
under any other Loan Document, shall bear interest for each day (before and
- 16 -
44
after judgment), payable on demand, at a rate per annum (in each case based on
a year of 360 days and actual days elapsed) which for each day shall be equal
to the following:
(i) In the case of any part of the CD Rate Portion or Euro-Rate
Portion of any Loans, (A) until the end of the applicable then-current Funding
Period at a rate per annum 2% above the rate otherwise applicable to such part,
and (B) thereafter in accordance with the following clause (ii); and
(ii) In the case of any other amount due from the Borrower hereunder
or under any Loan Document, 2% above the then-current Base Rate Option.
To the extent permitted by law, interest accrued under this Section 2.09
on any amount shall compound on a day-by-day basis, and hence shall be added
daily to the overdue amount to which such interest relates.
2.10. Additional Compensation in Certain Circumstances.
(a) Increased Costs or Reduced Return Resulting From Taxes, Reserves,
Capital Adequacy Requirements, Expenses, Etc. If any Law or guideline or
interpretation or application thereof by any Governmental Authority charged
with the interpretation or administration thereof or compliance with any
request or directive of any Governmental Authority (whether or not having the
force of law) now existing or hereafter adopted:
(i) subjects any Lender or any Notional Euro-Rate Funding Office to
any tax or changes the basis of taxation with respect to this Agreement, the
Notes, the Loans or payments by the Borrower of principal, interest, commitment
fees or other amounts due from the Borrower hereunder or under the Notes
(except for taxes on the overall net income or overall gross receipts of such
Lender or such Notional Euro-Rate Funding Office imposed by the jurisdictions
(federal, state and local) in which the Lender's principal office or Notional
Euro-Rate Funding Office is located),
(ii) imposes, modifies or deems applicable any reserve, special deposit
or similar requirement against credits or commitments to extend credit extended
by, assets (funded or contingent) of, deposits with or for the account of,
other acquisitions of funds by, such Lender or any Notional Euro-Rate Funding
Office (other than requirements expressly included herein in the determination
of the CD Rate or the Euro-Rate, as the case may be, hereunder),
(iii) imposes, modifies or deems applicable any capital adequacy or
similar requirement (A) against assets (funded or contingent) of, or credits or
commitments to extend credit extended by, any Lender or any Notional Euro-Rate
Funding Office, or (B) otherwise applicable to the obligations of any Lender or
any Notional Euro-Rate Funding Office under this Agreement, or
(iv) imposes upon any Lender or any Notional Euro-Rate Funding Office
any other condition or expense with respect to this Agreement, the Notes or its
making, maintenance or funding of any Loan or any security therefor, and the
result of any of the foregoing is to increase the cost to, reduce the income
receivable by, or impose any expense (including loss of margin) upon any
Lender, any Notional Euro-Rate Funding Office or, in the case of clause (iii)
hereof, any Person controlling a Lender, with respect to this Agreement, the
Notes or the making, maintenance or funding of any Loan (or, in the case of any
capital adequacy or similar requirement, to have the effect of reducing the
rate of return on such Lender's or controlling Person's capital, taking into
consideration such Lender's or controlling Person's policies with respect to
- 17 -
45
capital adequacy) by an amount which such Lender deems to be material (such
Lender being deemed for this purpose to have made, maintained or funded each
Funding Segment of the CD Rate Portion and the Euro-Rate Portion from a
Corresponding Source of Funds), such Lender may from time to time notify the
Borrower of the amount determined in good faith (using any averaging and
attribution methods) by such Lender (which determination shall be conclusive)
to be necessary to compensate such Lender or such Notional Euro-Rate Funding
Office for such increase, reduction or imposition. Such amount shall be due
and payable by the Borrower to such Lender five Business Days after such notice
is given, together with an amount equal to interest on such amount from the
date two Business Days after the date demanded until such due date at the Base
Rate Option. A certificate by such Lender as to the amount due and payable
under this Section 2.10(a) from time to time and the method of calculating such
amount shall be conclusive absent manifest error.
(b) Funding Breakage. In addition to all other amounts payable here-
under, if and to the extent for any reason any part of any Funding Segment of
any CD Rate Portion or Euro-Rate Portion of the Loans becomes due (by acceler-
ation or otherwise), or is paid, prepaid or converted to another interest rate
Option (whether or not such payment, prepayment or conversion is mandatory or
automatic and whether or not such payment or prepayment is then due), on a day
other than the last day of the corresponding Funding Period (the date such
amount so becomes due, or is so paid, prepaid or converted, being referred to
as the "Funding Breakage Date"), the Borrower shall pay each Lender an amount
("Funding Breakage Indemnity") determined by such Lender as follows:
(i) first, calculate the following amount: (A) the principal amount of
such Funding Segment of the Loans owing to such Lender which so became due, or
which was so paid, prepaid or converted, times (B) the greater of (x) zero or
(y) the rate of interest applicable to such principal amount on the Funding
Breakage Date minus the Applicable Funding Rate as of the Funding Breakage
Date, times (C) the number of days from and including the Funding Breakage Date
to but not including the last day of such Funding Period, times (D) 1/360;
(ii) the Funding Breakage Indemnity to be paid by the Borrower to such
Lender shall be the amount equal to the present value as of the Funding Break-
age Date (discounted at the Applicable Funding Rate as of such Funding Breakage
Date, and calculated on the basis of a year of 365 or 366 days, as the case may
be, and actual days elapsed) of the amount described in the preceding clause
(i) (which amount described in the preceding clause (i) is assumed for purposes
of such present value calculation to be payable on the last day of the corres-
ponding Funding Period).
For purposes of this Section, the term "Applicable Funding Rate" shall mean (i)
in the case of any calculation of a Funding Breakage Indemnity payment with
respect to a particular Funding Segment for which the corresponding Funding
Period was originally one year or longer, the Treasury Rate, and (ii) in the
case of any calculation of a Funding Breakage Indemnity payment with respect to
a Funding Segment for which the corresponding Funding Period was originally
less than one year, the Euro-Rate.
Such Funding Breakage Indemnity shall be due and payable on demand, and
each Lender shall, upon making such demand, notify the Agent of the amount so
demanded. In addition, the Borrower shall, on the due date for payment of any
Funding Breakage Indemnity, pay to such Lender an additional amount equal to
interest on such Funding Breakage Indemnity from the Funding Breakage Date to
but not including such due date at the Base Rate Option applicable to the Loans
(calculated on the basis of a year of 360 days and actual days elapsed). The
amount payable to each Lender under this Section 2.10(b) shall be determined in
good faith by such Lender, and such determination shall be conclusive absent
manifest error.
- 18 -
46
2.11. HLT Classification. In the event that after the date hereof the
Loans hereunder are classified as a "highly leveraged transaction" (an "HLT
Classification") by any Governmental Authority having jurisdiction over any
Lender, such Lender may in its discretion from time to time so notify the
Agent, and upon receiving such notice the Agent shall promptly give notice of
such event to the Borrower and the Lenders. In such event the parties hereto
shall commence negotiations to agree on revised Revolving Credit Commitment
Fees, interest rates and Applicable Margins hereunder. If the parties hereto
fail to agree on such matters in their respective absolute discretion within 60
days of the notice given by the Agent referred to above, then the Required
Lenders may at any time or from time to time thereafter direct the Agent to (a)
by ten Business Days' notice to the Borrower, terminate the Revolving Credit
Commitments, and the Revolving Credit Commitments shall thereupon terminate,
or (b) by ten Business Days' notice to the Borrower, declare the Loans, toget-
her with (without duplication) accrued interest thereon, to be, and the Loans
shall thereupon become, immediately due and payable without presentment,
demand, protest or other notice of any kind, all of which are hereby waived,
and an action therefor shall immediately accrue. The Lenders acknowledge that
an HLT Classification is not an Event of Default or Potential Default
hereunder.
2.12. Taxes.
(a) Payments Net of Taxes. All payments made by the Borrower under
this Agreement or any other Loan Document shall be made free and clear of, and
without reduction or withholding for or on account of, any present or future
income, stamp or other taxes, levies, imposts, duties, charges, fees, deduc-
tions or withholdings, now or hereafter imposed, levied, collected, withheld or
assessed by any Governmental Authority, and all liabilities with respect
thereto, excluding
(i) in the case of the Agent and each Lender, income or franchise
taxes imposed on the Agent or such Lender by the jurisdiction under the laws of
which the Agent or such Lender is organized or any political subdivision or
taxing authority thereof or therein or as a result of a connection between such
Lender and any jurisdiction other than a connection resulting solely from this
Agreement and the transactions contemplated hereby, and
(ii) in the case of each Lender, income or franchise taxes imposed by
any jurisdiction in which such Lender's lending offices which make or book
Loans are located or any political subdivision or taxing authority thereof or
therein (all such non-excluded taxes, levies, imposts, deductions, charges or
withholdings being hereinafter called "Taxes"). If any Taxes are required to
be withheld or deducted from any amounts payable to the Agent or any Lender
under this Agreement or any other Loan Document, the Borrower shall pay the
relevant amount of such Taxes and the amounts so payable to the Agent or such
Lender shall be increased to the extent necessary to yield to the Agent or such
Lender (after payment of all Taxes) interest or any such other amounts payable
hereunder at the rates or in the amounts specified in this Agreement and the
other Loan Documents. Whenever any Taxes are paid by the Borrower with respect
to payments made in connection with this Agreement or any other Loan Document,
as promptly as possible thereafter, the Borrower shall send to the Agent for
its own account or for the account of such Lender, as the case may be, a
certified copy of an original official receipt received by the Borrower showing
payment thereof.
- 19 -
47
(b) Indemnity. The Borrower hereby indemnifies the Agent and each of
the Lenders for the full amount of such Taxes and any present or future claims,
liabilities or losses with respect to or resulting from any omission to pay or
delay in paying such Taxes (including any incremental Taxes, interest or
penalties that may become payable by the Agent or such Lender as a result of
any failure to pay such Taxes but excluding any claims, liabilities or losses
with respect to or arising from omissions to pay or delays in payment attri-
butable to the act or omission of the Agent or any Lender), whether or not such
Taxes were correctly or legally asserted. Such indemnification shall be made
within 30 days from the date such Lender or the Agent, as the case may be,
makes written demand therefor.
(c) Withholding and Backup Withholding. Each Lender that is incor-
porated or organized under the laws of any jurisdiction other than the United
States or any state thereof agrees that, on or prior to the date any payment is
due to be made to it hereunder or under any other Loan Document, it will
furnish to the Borrower and the Agent
(i) two valid, duly completed copies of United States Internal Revenue
Service Form 4224 or United States Internal Revenue Form 1001 or successor
applicable form, as the case may be, certifying in each case that such Lender
is entitled to receive payments under this Agreement and the other Loan
Documents without deduction or withholding of any United States federal income
taxes and
(ii) a valid, duly completed Internal Revenue Service Form W-8 or W-9
or successor applicable form, as the case may be, to establish an exemption
from United States backup withholding tax.
Each Lender which so delivers to the Borrower and the Agent a Form 1001 or 4224
and Form W-8 or W-9, or successor applicable forms agrees to deliver to the
Borrower and the Agent two further copies of the said Form 1001 or 4224 and
Form W-8 or W-9, or successor applicable forms, or other manner of certifica-
tion, as the case may be, on or before the date that any such form expires or
becomes obsolete or otherwise is required to be resubmitted as a condition to
obtaining an exemption from withholding tax, or after the occurrence of any
event requiring a change in the most recent form previously delivered by it,
and such extensions or renewals thereof as may reasonably be requested by the
Borrower and the Agent, certifying in the case of a Form 1001 or Form 4224 that
such Lender is entitled to receive payments under this Agreement or any other
Loan Document without deduction or withholding of any United States federal
income taxes, unless in any such cases an event (including any changes in Law)
has occurred prior to the date on which any such delivery would otherwise be
required which renders all such forms inapplicable or which would prevent such
Lender from duly completing and delivering any such letter or form with
respect to it and such Lender advises the Borrower and the Agent that it is not
capable of receiving payments without any deduction or withholding of United
States federal income tax, and in the case of a Form W-8 or W-9, establishing
an exemption from United States backup withholding tax.
2.13. Funding by Branch, Subsidiary or Affiliate.
(a) Notional Funding. Each Lender shall have the right from time to
time, prospectively or retrospectively, without notice to the Borrower, to deem
any branch, subsidiary or affiliate of such Lender to have made, maintained or
funded any part of the Euro-Rate Portion at any time. Any branch, subsidiary
or affiliate so deemed shall be known as a "Notional Euro-Rate Funding Office."
Such Lender shall deem any part of the Euro-Rate Portion of the Loans or the
- 20 -
48
funding therefor to have been transferred to a different Notional Euro-Rate
Funding Office if such transfer would avoid or cure an event or condition
described in Section 2.04(e)(ii) hereof or would lessen compensation payable by
the Borrower under Section 2.10(a) hereof, and if such Lender determines in its
sole discretion that such transfer would be practicable and would not have a
Material Adverse Effect on such part of the Loans, such Lender or any Notional
Euro-Rate Funding Office (it being assumed for purposes of such determination
that each part of the Euro-Rate Portion is actually made or maintained by or
funded through the corresponding Notional Euro-Rate Funding Office). Notional
Euro-Rate Funding Offices may be selected by such Lender without regard to such
Lender's actual methods of making, maintaining or funding Loans or any sources
of funding actually used by or available to such Lender.
(b) Actual Funding. Each Lender shall have the right from time to
time to make or maintain any part of the Euro-Rate Portion by arranging for a
branch, subsidiary or affiliate of such Lender to make or maintain such part of
the Euro-Rate Portion. Such Lender shall have the right to (i) hold any
applicable Note payable to its order for the benefit and account of such
branch, subsidiary or affiliate or (ii) request the Borrower to issue one or
more substitute promissory notes in the principal amount of such Euro-Rate
Portion, in substantially the form attached hereto as Exhibit A, with the
blanks appropriately filled, payable to such branch, subsidiary or affiliate
and with appropriate changes reflecting that the holder thereof is not
obligated to make any additional Loans to the Borrower; provided, that if a
Lender requests the Borrower to issue one or more substitute promissory notes
in accordance with clause (ii) above, the amount of the Note payable to such
Lender shall automatically be reduced accordingly. The Borrower agrees to
comply promptly with any request under subsection (ii) of this Section 2.13(b).
If any Lender causes a branch, subsidiary or affiliate to make or maintain any
part of the Euro-Rate Portion hereunder, all terms and conditions of this
Agreement shall, except where the context clearly requires otherwise, be
applicable to such part of the Euro-Rate Portion and to any note payable to the
order of such branch, subsidiary or affiliate to the same extent as if such
part of the Euro-Rate Portion were made or maintained and such note were a
Revolving Credit Note payable to such Lender's order.
2.14. Extension of Expiration Date.
(a) Extension of Expiration Date. The Revolving Credit Commitment of
the Lenders shall expire and shall be automatically reduced to zero on the
Expiration Date. Not later than 45 days and not sooner than 60 days
immediately preceding the Expiration Date then in effect, if the Borrower
wishes the Lenders to extend the Expiration Date for an additional period (not
to exceed 300 days) beyond the Expiration Date then in effect, the Borrower
shall so advise the Agent in writing (an "Extension Request"). The Agent shall
thereupon promptly notify each of the Lenders of such Extension Request of the
Borrower. Within 20 days of its receipt of such Extension Request from the
Borrower, the Agent shall notify the Borrower as to whether the Lenders have
agreed so to extend the Expiration Date and, if so, as to any additional or
different terms on which such extension is conditioned (the determination of
the Lenders as to whether to agree to such extension and upon what terms being
in the sole, absolute and unconditional discretion of each Lender). If such
notice contains any such additional or different terms, the Borrower shall
advise the Agent in writing within 5 days next following receipt of such notice
from the Agent as to whether the Borrower agrees to such terms. If the Bor-
rower notifies the Agent that it so agrees, or if the Agent's notice that the
Lenders have agreed to extend the Expiration Date contains no such additional
- 21 -
49
or different terms, the Expiration Date shall automatically be extended for the
additional period requested by the Borrower. If the Agent fails to notify the
Borrower within 20 days of the Agent's receipt of any Extension Request from
the Borrower as specified above as to whether the Lenders have agreed to such
Extension Request, the Lenders shall be deemed not to have agreed to such
Extension Request.
(b) If (i) any Lender notifies the Agent in writing that it will not
consent to such Extension Request or (ii) all of the Lenders have not in
writing expressly consented to any such Extension Request as provided in the
preceding paragraph, then the Agent shall so notify the Borrower and the
Borrower, at its option, may replace each Lender which has not agreed to such
Extension Request (a "Nonextending Lender") with another commercial lending
institution reasonably satisfactory to the Agent (a "Replacement Lender") by
giving notice of the name of such Replacement Lender to the Agent. Unless the
Agent shall object to the identity of such proposed Replacement Lender prior to
the date 5 days prior to the then current Expiration Date, upon notice from the
Agent, each Nonextending Lender shall promptly (but in no event later than the
then current Expiration Date) assign all of its interests hereunder to such
Replacement Lender in accordance with the provisions of Section 8.14(c) hereof.
If, immediately prior to the Expiration Date some, but not all, of the Lenders
have agreed to such Extension Request, and each Nonextending Lender has not
been replaced by the Borrower in accordance with the terms of this Section
2.14(b), the Expiration Date shall be extended in accordance with such Exten-
sion Request; provided, however, that on the original Expiration Date (as such
date may have been previously extended), the total Revolving Credit Commitment
shall be irrevocably reduced by an amount equal to the Commitment of each
Nonextending Lender. If all Lenders consent to any such Extension Request (or,
if any Nonextending Lenders are replaced in accordance with this Section), then
as of 5:00 pm. New York time on the then current Expiration Date, such
Expiration Date shall be deemed to have been extended for the period requested
by the Borrower in the related Extension Request.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.01. Incorporation by Reference. The representations and warranties
contained in the Credit Agreement are incorporated herein by reference as if
set forth in full. The Borrower hereby represents and warrants to the Agent
and each Lender that such representations and warranties of the Borrower
contained therein are true and correct.
ARTICLE IV
CONDITIONS OF LENDING
4.01. Conditions to Making of Initial Loans. The obligation of each
Lender to make Loans on the Closing Date are subject to the satisfaction,
immediately prior to or concurrently with the making of such Loan of the
following conditions precedent, in addition to the conditions precedent set
forth in Section 4.02 hereof:
11a Agreement; Notes. The Agent shall have received an executed
counterpart of this Agreement for each Lender, duly executed by the Borrower,
and an executed Revolving Credit Note for each Lender, conforming to the
requirements hereof, duly executed on behalf of the Borrower.
12a Opinion of Counsel. There shall have been delivered to the Agent
an opinion of the General Counsel of the Borrower, dated the Closing Date in
substantially the form set forth as Exhibit B attached hereto.
- 22 -
50
13a No Default. On the Closing Date there shall exist no Potential
Default or Event of Default.
14a Representations and Warranties. On the Closing Date, all
representations and warranties of the Borrower contained herein or otherwise
made in writing in connection herewith shall be true and correct with the same
force and effect as though such representations and warranties had been made on
and as of such time.
15a Proceedings. All corporate and other proceedings in connection
with the transactions contemplated by this Agreement shall be reasonably
satisfactory in substance and form to the Agent, the Lenders and their counsel,
and the Agent, each Lender and their counsel shall have received all such
counterpart originals or certified or other copies of such documents as the
Agent or such counsel may reasonably request.
16a Corporate Proceedings. The Agent shall have received, with a
counterpart for each Lender, certificates by the Secretary or Assistant
Secretary of the Borrower dated as of the Closing Date as to (i) true copies of
the articles of incorporation and by-laws (or other constituent documents) of
the Borrower in effect on such date, (ii) true copies of all corporate action
taken by the Borrower relative to this Agreement and the other Loan Documents
and (iii) the incumbency and signature of the respective officers of the
Borrower executing this Agreement and the other Loan Documents to which the
Borrower is a party, together with satisfactory evidence of the incumbency of
such Secretary or Assistant Secretary. The Agent shall have received, with a
copy for each Lender, certificates from the appropriate Secretaries of State or
other applicable Governmental Authorities dated not more than 30 days before
the Closing Date showing the good standing of the Borrower in its state of
incorporation.
17a Fees, Expenses, etc. All fees and other compensation required to
be paid to the Agent or the Lenders pursuant hereto or pursuant to any other
written agreement on or prior to the Closing Date shall have been paid or
received.
4.02. Conditions to All Loans. The obligation of each Lender to make
any Loan (including the initial Loans) are subject to performance by the Bor-
rower of its obligations to be performed hereunder or under the other Loan
Documents on or before the date of such Loan, satisfaction of the conditions
precedent set forth herein and in the other Loan Documents and to satisfaction
of the following further conditions precedent:
(a) Notice. Appropriate notice of such Loan shall have been given by
the Borrower as provided in Article II hereof.
(b) Representations and Warranties. On the date of the making of
such Loan, all representations and warranties of the Borrower contained herein
or otherwise made in writing in connection herewith shall be true and correct
(except with respect to representations and warranties which specifically refer
to an earlier date, which shall be true and correct in all material respects as
of such earlier date) with the same force and effect as though such representa-
tions and warranties had been made on and as of such time.
(c) No Defaults. No Event of Default or Potential Default shall have
occurred and be continuing on such date or after giving effect to the Loans
requested to be made on such date.
- 23 -
51
(d) No Violations of Law, etc. Neither the making nor use of the
Loans shall cause any Lender to violate or conflict with any Law.
Each request by the Borrower for any Loan (including the initial Loans)
shall constitute a representation and warranty by the Borrower that the
conditions set forth in this Section 4.02 have been satisfied as of the date of
such request. Failure of the Agent to receive notice from the Borrower to the
contrary before such Loan is made shall constitute a further representation and
warranty by the Borrower that the conditions referred to in this Section 4.02
have been satisfied as of the date such Loan is made.
ARTICLE V
COVENANTS
5.01. Incorporation by Reference. Each of the covenants set forth in
Article VI and Article VII of the Credit Agreement are hereby incorporated by
reference as if set forth in full.
ARTICLE VI
DEFAULTS
6.01. Events of Default. An Event of Default shall mean the occur-
rence or existence of one or more of the following events or conditions (for
any reason, whether voluntary, involuntary or effected or required by Law):
(a) The Borrower shall fail to pay when due principal of any Loan.
(b) The Borrower shall fail to pay when due interest on any Loan, or
any fees, indemnity or expenses, or any other amount due hereunder or under any
other Loan Document and such failure shall have continued for a period of five
days.
(c) Any representation or warranty made or deemed made by the Bor-
rower in or pursuant to any Loan Document or in any certificate delivered
thereunder, or any statement made by the Borrower in any financial statement,
certificate, report, exhibit or document furnished by the Borrower to either
the Agent or any Lender pursuant to or in connection with any Loan Document,
shall prove to have been false or misleading in any material respect as of the
time when made or deemed made (including by omission of material information
necessary to make such representation, warranty or statement not misleading).
(d) An Event of Default shall have occurred and be continuing under
the Credit Agreement.
(e) (i) The Borrower shall fail to perform or observe any term,
condition or covenant of any bond, note, debenture, loan agreement, indenture,
guaranty, trust agreement, mortgage or similar instrument (other than a
non-recourse obligation) to which the Borrower is a party or by which it is
bound, or to which any of its properties or assets is subject (a "Debt
Instrument"), so that, as a result of any such failure to perform, the
Indebtedness included therein or secured or covered thereby may at the time be
declared due and payable prior to the date on which such Indebtedness would
otherwise become due and payable; or (ii) any event or condition referred to in
any Debt Instrument shall occur or fail to occur, so that, as a result thereof,
the Indebtedness included therein or secured or covered thereby may at such
time be declared due and payable prior to the date on which such Indebtedness
would otherwise become due and payable; or (iii) the Borrower shall fail to pay
any Indebtedness when due, pursuant to demand under any Debt Instrument or
- 24 -
52
otherwise; provided, however, that each of clauses (i), (ii) and (iii) above
shall be subject to any applicable grace period provided in the relevant Debt
Instrument; and provided, further, that the provisions of this Section 6.01(e)
shall be applicable only if the aggregate principal amount of such Indebtedness
exceeds $5,000,000.
(f) One or more final judgments for the payment of money shall have
been entered against the Borrower, which judgment or judgments exceed
$5,000,000 in the aggregate, and such judgment or judgments shall have remained
undischarged, in effect, and unstayed or unbonded for a period of thirty
consecutive days.
(g) One or more writs or warrants of attachment, garnishment,
execution, distraint or similar process exceeding in value the aggregate amount
of $5,000,000 shall have been issued against the Borrower or any of its
properties and shall have remained undischarged, in effect and unstayed or
unbonded for a period of thirty consecutive days.
(h) A Change in Control shall have occurred.
(i) This Agreement or term or provision hereof shall cease to be in
full force and effect, or the Borrower shall, or shall purport to, terminate
(other than termination in accordance with the last sentence of Section 2.02(b)
hereof), repudiate, declare voidable or void or otherwise contest, this
Agreement or term or provision thereof or any obligation or liability of the
Borrower hereunder.
(j) Any one or more Pension-Related Events referred to in subsection
(a)(ii), (b) or (e)(i) of the definition of "Pension-Related Event" shall have
occurred; or any one or more other Pension-Related Events shall have occurred
which individually or in the aggregate, have a Material Adverse Effect.
(k) A proceeding shall have been instituted in respect of the Bor-
rower or any Significant Subsidiary of the Borrower
(i) seeking to have an order for relief entered in respect of such
Person, or seeking a declaration or entailing a finding that such
Person is insolvent or a similar declaration or finding, or seeking
dissolution, winding-up, charter revocation or forfeiture,
liquidation, reorganization, arrangement, adjustment, composition or
other similar relief with respect to such Person, its assets or its
debts under any Law relating to bankruptcy, insolvency, relief of
debtors or protection of creditors, termination of legal entities or
any other similar Law now or hereafter in effect, or
(ii) seeking appointment of a receiver, trustee, liquidator,
assignee, sequestrator or other custodian for such Person or for all
or any substantial part of its property
and such proceeding shall result in the entry, making or grant of any
such order for relief, declaration, finding, relief or appointment, or such
proceeding shall remain undismissed, unstayed and unbonded for a period of 60
consecutive days.
(l) The Borrower or any Significant Subsidiary shall become insol-
vent; shall fail to pay, become unable to pay, or state that it is or will be
unable to pay, its debts as they become due; shall voluntarily suspend trans-
action of its business; shall make a general assignment for the benefit of
creditors;
- 25 -
53
shall institute (or fail to controvert in a timely and appropriate manner) a
proceeding described in Section 6.01(k)(i) hereof, or (whether or not any such
proceeding has been instituted) shall consent to or acquiesce in any such order
for relief, declaration, finding or relief described therein; shall institute
(or fail to controvert in a timely and appropriate manner) a proceeding
described in Section 6.01(k)(ii) hereof, or (whether or not any such proceeding
has been instituted) shall consent to or acquiesce in any such appointment or
to the taking of possession by any such custodian of all or any substantial
part of its property; shall dissolve, wind-up, revoke or forfeit its charter
(or other constituent documents) or liquidate itself or any substantial part of
its property; or shall take any action in furtherance of any of the foregoing.
6.02. Consequences of an Event of Default.
(a) If an Event of Default specified in subsections (a) through (j)
of Section 6.01 hereof shall occur and be continuing or shall exist, then, in
addition to all other rights and remedies which the Agent or any Lender may
have hereunder or under any other Loan Document, at law, in equity or other-
wise, the Lenders shall be under no further obligation to make Loans hereunder
and the Agent, upon the written request of the Required Lenders shall, by
notice to the Borrower, from time to time do any or all of the following:
(i) Declare the Revolving Credit Commitments terminated, whereupon the
Commitments will terminate and any fees accrued but unpaid hereunder
shall be immediately due and payable without presentment, demand,
protest or further notice of any kind, all of which are hereby waived,
and an action therefor shall immediately accrue.
(ii) Declare the unpaid principal amount of the Loans and interest
accrued thereon to be immediately due and payable without presentment,
demand, protest or further notice of any kind, all of which are hereby
waived, and an action therefor shall immediately accrue.
(b) If an Event of Default specified in subsection (k) or (l) of
Section 6.01 hereof shall occur or exist, then, in addition to all other rights
and remedies which the Agent or any Lender may have hereunder or under any
other Loan Document, at law, in equity or otherwise, the Revolving Credit
Commitments shall automatically terminate and the Lenders shall be under no
further obligation to make Loans and the unpaid principal amount of the Loans,
interest accrued thereon and all other Loans shall become immediately due and
payable without presentment, demand, protest or notice of any kind, all of
which are hereby waived, and an action therefor shall immediately accrue.
ARTICLE VII
THE AGENT
7.01. Appointment. Each Lender hereby irrevocably appoints Mellon
Bank, N.A. ("Mellon") to act as Agent for such Lender under this Agreement and
the other Loan Documents. Each Lender hereby irrevocably authorizes the Agent
to take such action on behalf of such Lender under the provisions of this
Agreement and the other Loan Documents, and to exercise such powers and to
perform such duties, as are expressly delegated to or required of the Agent by
the terms hereof or thereof, together with such powers as are reasonably
incidental thereto. Mellon hereby agrees to act as Agent on behalf of the
Lenders on the terms and conditions set forth in this Agreement and the other
Loan Documents, subject to its right to resign as provided in Section 7.10
hereof. Each Lender hereby irrevocably authorizes the Agent to execute and
- 26 -
54
deliver each of the Loan Documents and to accept delivery of such of the other
Loan Documents as may not require execution by the Agent. Each Lender agrees
that the rights and remedies granted to the Agent under the Loan Documents
shall be exercised exclusively by the Agent, and that no Lender shall have any
right individually to exercise any such right or remedy, except to the extent
expressly provided herein or therein.
7.02. General Nature of Agent's Duties. Notwithstanding anything to
the contrary elsewhere in this Agreement or in any other Loan Document:
(a) The Agent shall have no duties or responsibilities except those
expressly set forth in this Agreement and the other Loan Documents, and no
implied duties or responsibilities on the part of the Agent shall be read into
this Agreement or any Loan Document or shall otherwise exist; provided, how-
ever, that nothing contained in this Article VII shall affect the express
duties and responsibilities of the Agent to the Borrower under this Agreement
and the other Loan Documents.
(b) The duties and responsibilities of the Agent under this Agreement
and the other Loan Documents shall be mechanical and administrative in nature,
and the Agent shall not have a fiduciary relationship in respect of any Lender.
(c) The Agent is and shall be solely the agent of the Lenders. The
Agent does not assume, and shall not at any time be deemed to have, any
relationship of agency or trust with or for, or any other duty or responsibil-
ity to, the Borrower or any other Person (except only for its relationship as
agent for the Lenders, and its express duties and responsibilities to the
Lenders and the Borrower, as provided in this Agreement and the other Loan
Documents).
(d) The Agent shall be under no obligation to take any action here-
under or under any other Loan Document if the Agent believes in good faith that
taking such action may conflict with any Law or any provision of this Agreement
or any other Loan Document, or may require the Agent to qualify to do business
in any jurisdiction where it is not then so qualified.
7.03. Exercise of Powers. The Agent shall take any action of the type
specified in this Agreement or any other Loan Document as being within the
Agent's rights, powers or discretion in accordance with directions from the
Required Lenders (or, to the extent this Agreement or such Loan Document
expressly requires the direction or consent of some other Person or set of
Persons, then instead in accordance with the directions of such other Person or
set of Persons). In the absence of such directions, the Agent shall have the
authority (but under no circumstances shall be obligated), in its sole
discretion, to take any such action, except to the extent this Agreement or
such Loan Document expressly requires the direction or consent of the Required
Lenders (or some other Person or set of Persons), in which case the Agent shall
not take such action absent such direction or consent. Any action or inaction
pursuant to such direction, discretion or consent shall be binding on all the
Lenders. Subject to Section 7.04(a) hereof, the Agent shall not have any
liability to any Person as a result of (x) the Agent acting or refraining from
acting in accordance with the directions of the Required Lenders (or other
applicable Person or set of Persons), (y) the Agent refraining from acting in
the absence of instructions to act from the Required Lenders (or other
applicable Person or set of Persons), whether or not the Agent has discretion-
ary power to take such action, or (z) the Agent taking discretionary action it
is authorized to take under this Section.
- 27 -
55
7.04. General Exculpatory Provisions. Notwithstanding anything to the
contrary elsewhere in this Agreement or any other Loan Document:
(a) The Agent shall not be liable for any action taken or omitted to
be taken by it under or in connection with this Agreement or any other Loan
Document, unless caused by its own gross negligence or willful misconduct.
(b) The Agent shall not be responsible for (i) the execution,
delivery, effectiveness, enforceability, genuineness, validity or adequacy of
this Agreement or any other Loan Document, (ii) any recital, representation,
warranty, document, certificate, report or statement in, provided for in, or
received under or in connection with, this Agreement or any other Loan
Document, or (iii) any failure of any Lender to perform any of its obligations
under this Agreement or any other Loan Document.
(c) The Agent shall not be under any obligation to ascertain, inquire
or give any notice relating to (i) the performance or observance of any of the
terms or conditions of this Agreement or any other Loan Document on the part of
the Borrower or its Subsidiaries, (ii) the business, operations, condition
(financial or otherwise) or prospects of the Borrower or its Subsidiaries, or
any other Person, or (iii) except to the extent set forth in Section 7.05(f)
hereof, the existence of any Event of Default or Potential Default.
(d) The Agent shall not be under any obligation, either initially or
on a continuing basis, to provide any Lender with any notices, reports or
information of any nature, whether in its possession presently or hereafter,
except for such notices, reports and other information expressly required by
this Agreement or any other Loan Document to be furnished by the Agent to such
Lender.
7.05. Administration by the Agent.
(a) The Agent may rely upon any notice or other communication of any
nature (written or oral, including but not limited to telephone conversations,
whether or not such notice or other communication is made in a manner permitted
or required by this Agreement or any Loan Document) purportedly made by or on
behalf of the proper party or parties, and the Agent shall not have any duty to
verify the identity or authority of any Person giving such notice or other
communication.
(b) The Agent may consult with legal counsel (including, without
limitation, in-house counsel for the Agent, or in-house or other counsel for
the Borrower), independent public accountants and any other experts selected by
it from time to time, and the Agent shall not be liable for any action taken or
omitted to be taken in good faith by it in accordance with the advice of such
counsel, accountants or experts.
(c) The Agent may conclusively rely upon the truth of the statements
and the correctness of the opinions expressed in any certificates or opinions
furnished to the Agent in accordance with the requirements of this Agreement or
any other Loan Document. Whenever the Agent shall deem it necessary or desir-
able that a matter be proved or established with respect to the Borrower or any
Lender, such matter may be established by a certificate of the Borrower or such
Lender, as the case may be, and the Agent may conclusively rely upon such
certificate (unless other evidence with respect to such matter is specifically
prescribed in this Agreement or another Loan Document).
- 28 -
56
(d) The Agent may fail or refuse to take any action unless it shall
be indemnified to its satisfaction from time to time against any and all
amounts, liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature which
may be imposed on, incurred by or asserted against the Agent by reason of
taking or continuing to take any such action.
(e) The Agent may perform any of its duties under this Agreement or
any other Loan Document by or through agents or attorneys-in-fact. The Agent
shall not be responsible for the negligence or misconduct of any agents or
attorneys-in fact selected and supervised by it with reasonable care.
(f) The Agent shall not be deemed to have any knowledge or notice of
the occurrence of any Event of Default or Potential Default unless the Agent
has received notice from a Lender or the Borrower referring to this Agreement,
describing such Event of Default or Potential Default. If the Agent receives
such a notice, the Agent shall give prompt notice thereof to each Lender.
7.06. Lender Not Relying on Agent or Other Lenders. Each Lender
acknowledges as follows: (a) Neither the Agent nor any other Lender has made
any representations or warranties to it, and no act taken hereafter by the
Agent or any other Lender shall be deemed to constitute any representation or
warranty by the Agent or such other Lender to it. (b) It has, independently
and without reliance upon the Agent or any other Lender, and based upon such
documents and information as it has deemed appropriate, made its own credit and
legal analysis and decision to enter into this Agreement and the other Loan
Documents. (c) It will, independently and without reliance upon the Agent or
any other Lender, and based upon such documents and information as it shall
deem appropriate at the time, make its own decisions to take or not take action
under or in connection with this Agreement and the other Loan Documents.
7.07. Indemnification. Each Lender agrees to reimburse and indemnify
the Agent and its directors, officers, employees and agents (to the extent not
reimbursed by the Borrower and without limitation of the obligations of the
Borrower to do so), Pro Rata, from and against any and all amounts, losses,
liabilities, claims, damages, expenses, obligations, penalties, actions,
judgments, suits, costs or disbursements of any kind or nature (including,
without limitation, the fees and disbursements of counsel for the Agent or such
other Person in connection with any investigative, administrative or judicial
proceeding commenced or threatened, whether or not the Agent or such other
Person shall be designated a party thereto) that may at any time be imposed on,
incurred by or asserted against the Agent or such other Person as a result of,
or arising out of, or in any way related to or by reason of, this Agreement,
any other Loan Document, any transaction from time to time contemplated hereby
or thereby, or any transaction financed in whole or in part or directly or
indirectly with the proceeds of any Loan, provided that no Lender shall be
liable for any portion of such amounts, losses, liabilities, claims, damages,
expenses, obligations, penalties, actions, judgments, suits, costs or
disbursements resulting solely from the gross negligence or willful misconduct
of the Agent or such other Person, as finally determined by a court of
competent jurisdiction. Payments under this Section 7.07 shall be due and
payable on demand, and to the extent that any Lender fails to pay any such
amount on demand, such amount shall bear interest for each day from the date of
demand until paid (before and after judgment) at a rate per annum (calculated
on the basis of a year of 365 or 366 days, as the case may be, and actual days
elapsed) which for each day shall be equal to the Prime Rate. Any amounts
recovered by the Agent from the Borrower subsequent to reimbursement by the
Lenders in accordance with this Section shall be promptly remitted to the
Lenders on a Pro Rata basis.
- 29 -
57
7.08. Agent in its Individual Capacity. With respect to its Revolving
Credit Commitments owing to it, the Agent shall have the same rights and powers
under this Agreement and each other Loan Document as any other Lender and may
exercise the same as though it were not the Agent, and the terms "Lenders,"
"holders of Notes" and like terms shall include the Agent in its individual
capacity as such. The Agent and its affiliates may, without liability to
account, make loans to, accept deposits from, acquire debt or equity interests
in, act as trustee under indentures of, and engage in any other business with,
the Borrower and any stockholder, subsidiary or affiliate of the Borrower, as
though the Agent were not the Agent hereunder.
7.09. Holders of Notes. The Agent may deem and treat the Lender which
is payee of a Note as the owner and holder of such Note for all purposes hereof
unless and until a Transfer Supplement with respect to the assignment or
transfer thereof shall have been filed with the Agent in accordance with
Section 8.14 hereof. Any authority, direction or consent of any Person who at
the time of giving such authority, direction or consent is shown in the
Register as being a Lender shall be conclusive and binding on each present and
subsequent holder, transferee or assignee of any Note or Notes payable to such
Lender or of any Note or Notes issued in exchange therefor.
7.10. Successor Agent. The Agent may resign at any time by giving 10
days' prior written notice thereof to the Lenders and the Borrower. The Agent
may be removed by the Required Lenders at any time by giving 10 days' prior
written notice thereof to the Agent, the other Lenders and the Borrower. Upon
any such resignation or removal, the Required Lenders shall have the right to
appoint a successor Agent. If no successor Agent shall have been so appointed
and consented to, and shall have accepted such appointment, within 30 days
after such notice of resignation or removal, then the retiring Agent may, on
behalf of the Lenders, appoint a successor Agent. Each successor Agent shall
be a commercial bank or trust company organized or licensed under the laws of
the United States of America or any State thereof and having a combined capital
and surplus of at least $1,000,000,000. Upon the acceptance by a successor
Agent of its appointment as Agent hereunder, such successor Agent shall
thereupon succeed to and become vested with all the properties, rights, powers,
privileges and duties of the former Agent, without further act, deed or
conveyance. Upon the effective date of resignation or removal of a retiring
Agent, such Agent shall be discharged from its duties under this Agreement and
the other Loan Documents, but the provisions of this Agreement shall inure to
its benefit as to any actions taken or omitted by it while it was Agent under
this Agreement. If and so long as no successor Agent shall have been appointed
then any notice or other communication required or permitted to be given by the
Agent shall be sufficiently given if given by the Required Lenders, all notices
or other communications required or permitted to be given to the Agent shall be
given to each Lender, and all payments to be made to the Agent shall be made
directly to the Borrower or Lender for whose account such payment is made.
7.11. Additional Agents. If the Agent shall from time to time deem it
necessary or advisable, for its own protection in the performance of its duties
hereunder or in the interest of the Lenders and if the Borrower and the
Required Lenders shall consent (which consent shall not be unreasonably
withheld), the Agent and the Borrower shall execute and deliver a supplemental
agreement and all other instruments and agreements necessary or advisable, in
the opinion of the Agent, to constitute another commercial bank or trust
company, or one or more other Persons approved by the Agent, to act as co-
Agent, with such powers of the Agent as may be provided in such supplemental
agreement, and to vest in such bank, trust company or Person as such co-Agent
- 30 -
58
or separate agent, as the case may be, any properties, rights, powers,
privileges and duties of the Agent under this Agreement or any other Loan
Document.
7.12. Calculations. The Agent shall not be liable for any calcula-
tion, apportionment or distribution of payments made by it in good faith. If
such calculation, apportionment or distribution is subsequently determined to
have been made in error, the sole recourse of any Lender to whom payment was
due but not made shall be to recover from the other Lenders any payment in
excess of the amount to which they are determined to be entitled.
7.13. Funding by Agent. Unless the Agent shall have been notified in
writing by any Lender not later than the close of business on the day before
the day on which Loans are requested by the Borrower to be made that such
Lender will not make its ratable share of such Loans, the Agent may assume that
such Lender will make its ratable share of the Loans, and in reliance upon such
assumption the Agent may (but in no circumstances shall be required to) make
available to the Borrower a corresponding amount. If and to the extent that
any Lender fails to make such payment to the Agent on such date, such Lender
shall pay such amount on demand (or, if such Lender fails to pay such amount on
demand, the Borrower shall pay such amount on demand), together with interest,
for the Agent's own account, for each day from and including the date of the
Agent's payment to and including the date of repayment to the Agent (before and
after judgment) at the rate per annum applicable to such Loans. All payments
to the Agent under this Section shall be made to the Agent at its Office in
Dollars in funds immediately available at such Office, without set-off,
withholding, counterclaim or other deduction of any nature.
ARTICLE VIII
MISCELLANEOUS
8.01. Holidays. Whenever any payment or action to be made or taken
hereunder or under any other Loan Document shall be stated to be due on a day
which is not a Business Day, such payment or action shall be made or taken on
the next following Business Day and such extension of time shall be included in
computing interest or fees, if any, in connection with such payment or action.
8.02. Records. The unpaid principal amount of the Loans owing to each
Lender, the unpaid interest accrued thereon, the interest rate or rates
applicable to such unpaid principal amount, the duration of such applicability,
each Lender's Revolving Credit Committed Amount and the accrued and unpaid
Commitment Fees shall at all times be ascertained from the records of the
Agent, which shall be conclusive absent manifest error.
8.03. Amendments and Waivers. Neither this Agreement nor any Loan
Document may be amended, modified or supplemented except in accordance with the
provisions of this Section. The Required Lenders and the Borrower may from
time to time amend, modify or supplement the provisions of this Agreement or
any other Loan Document for the purpose of amending, adding to, or waiving any
provisions or changing in any manner the rights and duties of the Borrower, the
Agent or any Lender. Any such amendment, modification or supplement made in
accordance with the provisions of this Section shall be binding upon the
Borrower, each Lender and the Agent. The Agent shall enter into such amend-
ments, modifications or supplements from time to time as directed by the
Required Lenders, and only as so directed, provided, that no such amendment,
modification or supplement may be made which will:
- 31 -
59
(a) Increase the Committed Amount of any Lender over the amount
thereof then in effect, or extend the Expiration Date, without the written
consent of each Lender affected thereby;
(b) Reduce the principal amount of or extend the time for any payment
of any Loan, or reduce the amount of or rate of interest or extend the time for
payment of interest borne by any Loan or extend the time for payment of or
reduce the amount of any Commitment Fee or reduce or postpone the date for
payment of any other fees, expenses, indemnities or amounts payable under any
Loan Document, without the written consent of each Lender affected thereby;
(c) Change the definition of "Required Lenders" or amend this Section
8.03, without the written consent of all the Lenders; or
(d) Amend or waive any of the provisions of Article VII hereof, or
impose additional duties upon the Agent or otherwise adversely affect the
rights, interests or obligations of the Agent, without the written consent of
the Agent;
and provided further, that Transfer Supplements may be entered into in the
manner provided in Section 8.14 hereof. Any such amendment, modification or
supplement must be in writing and shall be effective only to the extent set
forth in such writing. Any Event of Default or Potential Default waived or
consented to in any such amendment, modification or supplement shall be deemed
to be cured and not continuing to the extent and for the period set forth in
such waiver or consent, but no such waiver or consent shall extend to any other
or subsequent Event of Default or Potential Default or impair any right
consequent thereto.
8.04. No Implied Waiver; Cumulative Remedies. No course of dealing
and no delay or failure of the Agent or any Lender in exercising any right,
power or privilege under this Agreement or any other Loan Document shall affect
any other or future exercise thereof or exercise of any other right, power or
privilege; nor shall any single or partial exercise of any such right, power or
privilege or any abandonment or discontinuance of steps to enforce such a
right, power or privilege preclude any further exercise thereof or of any other
right, power or privilege. The rights and remedies of the Agent and the
Lenders under this Agreement and any other Loan Document are cumulative and not
exclusive of any rights or remedies which either the Agent or any Lender would
otherwise have hereunder or thereunder, at law, in equity or otherwise.
8.05. Notices.
(a) Except to the extent otherwise expressly permitted hereunder or
thereunder, all notices, requests, demands, directions and other communications
(collectively "notices") under this Agreement or any Loan Document shall be in
writing (including telexed and telecopied communication) and shall be sent by
first-class mail, or by nationally-recognized overnight courier, or by telex or
telecopier (with confirmation in writing mailed first-class or sent by such an
overnight courier), or by personal delivery. All notices shall be sent to the
applicable party at the address stated on the signature pages hereof or in
accordance with the last unrevoked written direction from such party to the
other parties hereto, in all cases with postage or other charges prepaid. Any
such properly given notice shall be effective on the earliest to occur of
receipt, telephone confirmation of receipt of telex or telecopy communication,
one Business Day after delivery to a nationally-recognized overnight courier,
or three Business Days after deposit in the mail.
- 32 -
60
(b) Any Lender giving any notice to the Borrower shall simultaneously
send a copy thereof to the Agent, and the Agent shall promptly notify the other
Lenders of the receipt by it of any such notice.
(c) The Agent and each Lender may rely on any notice (whether or not
such notice is made in a manner permitted or required by this Agreement or any
Loan Document) purportedly made by or on behalf of the Borrower, and neither
the Agent nor any Lender shall have any duty to verify the identity or
authority of any Person giving such notice.
8.06. Expenses; Taxes; Indemnity.
(a) The Borrower agrees to pay or cause to be paid and to save the
Agent and each of the Lenders harmless against liability for the payment of all
reasonable out-of-pocket costs and expenses (including but not limited to
reasonable fees and expenses of counsel to the Agent and, with respect to costs
incurred by the Agent, or any Lender pursuant to clause (iii) below, such
counsel and local counsel) incurred by the Agent or, in the case of clause
(iii) below any Lender from time to time arising from or relating to (i) the
negotiation, preparation, execution, delivery, administration and performance
of this Agreement and the other Loan Documents, (ii) any requested amendments,
modifications, supplements, waivers or consents (whether or not ultimately
entered into or granted) to this Agreement or any Loan Document, and (iii)
except as to costs and expenses made necessary by reason of the gross
negligence or wilful misconduct of the Agent or any Lender, the enforcement or
preservation of rights under this Agreement or any Loan Document (including but
not limited to any such costs or expenses arising from or relating to (A)
collection or enforcement of an outstanding Loan or any other amount owing
hereunder or thereunder by either the Agent or any Lender, (B) any litigation
brought by the Agent, any Lender or the Borrower and related in any way to this
Agreement or the Loan Documents (other than the costs and expenses incurred by
the Agent, or any Lender, respectively, in connection with any litigation which
results in a final, non-appealable judgment against the Agent or such Lender)
and (C) any proceeding, dispute, work-out, restructuring or rescheduling
related in any way to this Agreement or the Loan Documents).
(b) The Borrower hereby agrees to pay all stamp, document, transfer,
recording, filing, registration, search, sales and excise fees and taxes and
all similar impositions now or hereafter determined by the Agent or any Lender
to be payable in connection with this Agreement or any other Loan Documents or
any other documents, instruments or transactions pursuant to or in connection
herewith or therewith, and the Borrower agrees to save the Agent and each
Lender harmless from and against any and all present or future claims,
liabilities or losses with respect to or resulting from any omission
to pay or delay in paying any such fees, taxes or impositions other than those
resulting from omissions to pay or delays in payment attributable to the acts
or omissions of the Agent or any Lender.
(c) The Borrower hereby agrees to reimburse and indemnify each of the
Indemnified Parties from and against any and all losses, liabilities, claims,
damages, expenses, obligations, penalties, actions, judgments, suits, costs or
disbursements of any kind or nature whatsoever (including, without limitation,
the reasonable fees and disbursements of counsel for such Indemnified Party in
connection with any investigative, administrative or judicial proceeding
commenced or threatened, whether or not such Indemnified Party shall be
designated a party thereto) that may at any time be imposed on,
asserted against or incurred by such Indemnified Party as a result of, or
- 33 -
61
arising out of, or in any way related to or by reason of, any act or conduct of
the Borrower with respect to or in connection with the transactions described
in this Agreement or any other Loan Document, or any transaction financed in
whole or in part or directly or indirectly with the proceeds of any Loan (and
without in any way limiting the generality of the foregoing, including any
violation or breach of any requirement of Law or any other Law by the
Borrower or any Subsidiary of the Borrower); or any exercise by either the
Agent or any Lender of any of its rights or remedies under this Agreement or
any other Loan Document); but excluding any such losses, liabilities, claims,
damages, expenses, obligations, penalties, actions, judgments, suits, costs or
disbursements resulting solely from the gross negligence or willful misconduct
of such Indemnified Party, as finally determined by a court of competent
jurisdiction. If and to the extent that the foregoing obligations of the
Borrower under this subsection (c), or any other indemnification obligation of
the Borrower hereunder or under any other Loan Document, are unenforceable for
any reason, the Borrower hereby agrees to make the maximum contribution to the
payment and satisfaction of such obligations which is permissible under
applicable Law.
8.07. Severability. The provisions of this Agreement are intended to
be severable. If any provision of this Agreement shall be held invalid or
unenforceable in whole or in part in any jurisdiction such provision shall, as
to such jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without in any manner affecting the validity or enforceability
thereof in any other jurisdiction or the remaining provisions hereof in any
jurisdiction.
8.08. Prior Understandings. This Agreement and the other Loan
Documents supersede all prior and contemporaneous understandings and agree-
ments, whether written or oral, among the parties hereto relating to the
transactions provided for herein and therein.
8.09. Duration; Survival. All representations and warranties of the
Borrower contained herein or in any other Loan Document or made in connection
herewith shall survive the making of, and shall not be waived by the execution
and delivery, of this Agreement or any other Loan Document, any investigation
by the Agent or any Lender, the making of any Loan, or any other event or
condition whatever. All covenants and agreements of the Borrower contained
herein or in any other Loan Document shall continue in full force and effect
from and after the date hereof so long as any Borrower may borrow hereunder and
until payment in full of all Loans. Without limitation, all obligations of the
Borrower hereunder or under any other Loan Document to make payments to or
indemnify the Agent or any Lender shall survive the payment in full of all
other Loans, termination of the Borrower's right to borrow hereunder, and all
other events and conditions whatever. In addition, all obligations of each
Lender to make payments to or indemnify the Agent shall survive the payment in
full by the Borrower of all Loans, termination of the Borrower's right to
borrow hereunder, and all other events or conditions whatever.
8.10. Counterparts. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts each
of which, when so executed, shall be deemed an original, but all such
counterparts shall constitute but one and the same instrument.
8.11. Limitation on Payments. The parties hereto intend to conform to
all applicable Laws in effect from time to time limiting the maximum rate of
interest that may be charged or collected. Accordingly, notwithstanding any
- 34 -
62
other provision hereof or of any other Loan Document, the Borrower shall not be
required to make any payment to or for the account of any Lender, and each
Lender shall refund any payment made by the Borrower, to the extent that such
requirement or such failure to refund would violate or conflict with nonwaiv-
able provisions of applicable Laws limiting the maximum amount of interest
which may be charged or collected by such Lender.
8.12. Set-Off. The Borrower hereby agrees that, to the fullest extent
permitted by law, if any Obligation of the Borrower shall be due and payable
(by acceleration or otherwise), each Lender shall have the right, without
notice to the Borrower, to set-off against and to appropriate and apply to the
Obligation any indebtedness, liability or obligation of any nature owing to the
Borrower by such Lender, including but not limited to all deposits (whether
time or demand, general or special, provisionally credited or finally credited,
whether or not evidenced by a certificate of deposit) now or hereafter main-
tained by the Borrower with such Lender. Such right shall be absolute and
unconditional in all circumstances and, without limitation, shall exist
whether or not such Lender or any other Person shall have given notice or made
any demand to the Borrower or any other Person, whether such indebtedness,
obligation or liability owed to the Borrower is contingent, absolute, matured
or unmatured, and regardless of the existence or adequacy of any collateral,
guaranty or any other security, right or remedy available to any Lender or any
other Person. The Borrower hereby agrees that, to the fullest extent permitted
by law, any Participant and any branch, subsidiary or affiliate of any Lender
or any Participant shall have the same rights of set-off as a Lender as
provided in this Section (regardless of whether such Participant, branch,
subsidiary or affiliate would otherwise be deemed in privity with or a direct
creditor of such Borrower). The rights provided by this Section are in
addition to all other rights of set-off and banker's lien and all other rights
and remedies which any Lender (or any such Participant, branch, subsidiary or
affiliate) may otherwise have under this Agreement, any other Loan Document, at
law or in equity, or otherwise, and nothing in this Agreement or any Loan
Document shall be deemed a waiver or prohibition of or restriction on the
rights of set-off or bankers' lien of any such Person.
8.13. Sharing of Collections. The Lenders hereby agree among them-
selves that if any Lender shall receive (by voluntary payment, realization upon
security, set-off or from any other source) any amount on account of the Loans,
interest thereon, or any other Obligation contemplated by this Agreement or the
other Loan Documents to be made by the Borrower pro rata to all Lenders in
greater proportion than any such amount received by any other Lender, then the
Lender receiving such proportionately greater payment shall notify each other
Lender and the Agent of such receipt, and equitable adjustment will be made in
the manner stated in this Section so that, in effect, all such excess amounts
will be shared ratably among all of the Lenders. The Lender receiving such
excess amount shall purchase (which it shall be deemed to have done simultane-
ously upon the receipt of such excess amount) for cash from the other Lenders a
participation in the applicable Loans owed to such other Lenders in such amount
as shall result in a ratable sharing by all Lenders of such excess amount (and
to such extent the receiving Lender shall be a Participant). If all or any
portion of such excess amount is thereafter recovered from the Lender making
such purchase, such purchase shall be rescinded and the purchase price restored
to the extent of such recovery, together with interest or other amounts, if
any, required by Law to be paid by the Lender making such purchase. The
Borrower hereby consents to and confirms the foregoing arrangements. Each
Participant shall be bound by this Section as fully as if it were a Lender
hereunder.
- 35 -
63
8.14. Successors and Assigns; Participations; Assignments.
(a) Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the Borrower, the Lenders, all future holders of the
Notes, the Agent and their respective successors and assigns, except that the
Borrower may not assign or transfer any of its rights hereunder or interests
herein without the prior written consent of all the Lenders and the Agent, and
any purported assignment without such consent shall be void.
(b) Participations. Any Lender may, in the ordinary course of its
commercial banking business and in accordance with applicable Law, at any time
sell participations to one or more commercial banks or other Persons (each a
"Participant") in all or a portion of its rights and obligations under this
Agreement and the other Loan Documents (including, without limitation, all or a
portion of its Commitments and the Loans owing to it and any Note held by it);
provided, that
(i) any such Lender's obligations under this Agreement and the other
Loan Documents shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations,
(iii) the parties hereto shall continue to deal solely and directly
with such Lender in connection with such Lender's rights and
obligations under this Agreement and each of the other Loan
Documents,
(iv) such Participant shall be bound by the provisions of Section 8.13
hereof, and the Lender selling such participation shall obtain from
such Participant a written confirmation of its agreement to be so
bound,
(v) no Participant (unless such Participant is an affiliate of such
Lender, or is itself a Lender) shall be entitled to require such
Lender to take or refrain from taking action under this Agreement or
under any other Loan Document, except that such Lender may agree with
such Participant that such Lender will not, without such Partici-
pant's consent, take action of the type described in subsections (a),
(b), (c) or (d) of Section 8.03 hereof; notwithstanding the fore-
going, in no event shall any participation by an Lender have the
effect of releasing such Lenders from its obligations hereunder, and
(vi) no Participant shall be an Affiliate of the Borrower.
The Borrower agrees that any such Participant shall be entitled to the
benefits of Sections 2.10, 2.12 and 8.06 with respect to its participation in
the Commitments and the Loans outstanding from time to time but only to the
extent such Participant sustains such losses; provided, that no such Partici-
pant shall be entitled to receive any greater amount pursuant to such Sections
than the transferor Lender would have been entitled to receive in respect of
the amount of the participation transferred to such Participant had no such
transfer occurred and provided, further, that any such Participant, as a
condition precedent to receiving the benefits of Sections 2.10, 2.12 and 8.06,
shall agree in writing to indemnify the Borrower and hold it harmless as
against any and all claims or demands by or liabilities to the transferor
Lender or Lenders or any other Person for an amount which in whole or in part
duplicates, but only to the extent of such duplication, the amount or amounts
to be paid to the Participant under this Section.
- 36 -
64
(c) Assignments. Any Lender may, in the ordinary course of its
commercial banking business and in accordance with applicable Law, at any time
assign all or a portion of its rights and obligations under this Agreement and
the other Loan Documents (including, without limitation, all or any portion of
its Commitments and Loans owing to it and any Note held by it) to any Lender,
any affiliate of a Lender or to one or more additional commercial banks or
other Persons (each a "Purchasing Lender"); provided, that
(i) any such assignment to a Purchasing Lender which is not a Lender
shall be made only with the consent of the Borrower and the Agent
which with respect to the Agent shall not be unreasonably withheld,
(ii) if a Lender makes such an assignment of less than all of its then
remaining rights and obligations under this Agreement and the other
Loan Documents, such transferor Lender shall retain, after such
assignment, a minimum principal amount of $5,000,000 of the Commit-
ments and Loans then outstanding, and such assignment shall be in a
minimum aggregate principal amount of $5,000,000 of the Commitments
and Loans then outstanding,
(iii) each such assignment shall be of a constant, and not a varying,
percentage of each Commitment of the transferor Lender and of all of
the transferor Lender's rights and obligations under this Agreement
and the other Loan Documents, and
(iv) each such assignment shall be made pursuant to a Transfer
Supplement in substantially the form of Exhibit C to this Agreement,
duly completed (a "Transfer Supplement").
In order to effect any such assignment, the transferor Lender and the
Purchasing Lender shall execute and deliver to the Agent a duly completed
Transfer Supplement (including the consents required by clause (i) of the
preceding sentence) with respect to such assignment, together with any Note or
Notes subject to such assignment (the "Transferor Lender Notes") and a proces-
sing and recording fee of $2,500; and, upon receipt thereof, the Agent shall
accept such Transfer Supplement. Upon receipt of the Purchase Price Receipt
Notice pursuant to such Transfer Supplement, the Agent shall record such
acceptance in the Register. Upon such execution, delivery, acceptance and
recording, from and after the Transfer Effective Date specified in such Trans-
fer Supplement
(x) the Purchasing Lender shall be a party hereto and, to the extent
provided in such Transfer Supplement, shall have the rights and obligations of
a Lender hereunder, and
(y) the transferor Lender thereunder shall be released from its
obligations under this Agreement to the extent so transferred (and, in the case
of an Transfer Supplement covering all or the remaining portion of a transferor
Lender's rights and obligations under this Agreement, such transferor Lender
shall cease to be a party to this Agreement) from and after the Transfer
Effective Date.
On or prior to the Transfer Effective Date specified in an Transfer Supple-
ment, the Borrower, at its expense, shall execute and deliver to the Agent (for
delivery to the Purchasing Lender) new Notes evidencing such Purchasing
Lender's assigned Commitments or Loans and (for delivery to the transferor
Lender) replacement Notes in the principal amount of the Loans or Commitments
- 37 -
65
retained by the transferor Lender (such Notes to be in exchange for, but not in
payment of, those Notes then held by such transferor Lender). Each such Note
shall be dated the date and be substantially in the form of the predecessor
Note. The Agent shall mark the predecessor Notes "exchanged" and deliver them
to the Borrower. Accrued interest and accrued fees shall be paid to the
Purchasing Lender at the same time or times provided in the predecessor Notes
and this Agreement.
(d) Register. The Agent shall maintain at its office a copy of each
Transfer Supplement delivered to it and a register (the "Register") for the
recordation of the names and addresses of the Lenders and the Revolving Credit
Commitment of, and principal amount of the Loans owing to, each Lender from
time to time. The entries in the Register shall be conclusive absent manifest
error and the Borrower, the Agent and the Lenders may treat each person whose
name is recorded in the Register as a Lender hereunder for all purposes of the
Agreement. The Register shall be available for inspection by the Borrower or
any Lender at any reasonable time and from time to time upon reasonable prior
notice.
(e) Financial and Other Information. The Borrower authorizes the
Agent and each Lender to disclose to any Participant or Purchasing Lender
(each, a "transferee") and any prospective transferee any and all financial and
other information in such Person's possession concerning the Borrower and its
Subsidiaries and Affiliates which has been or may be delivered to such Person
by or on behalf of the Borrower in connection with this Agreement or any other
Loan Document or such Person's credit evaluation of the Borrower and its
Subsidiaries and Affiliates; subject, however, to the provisions of Section
8.16 hereof.
8.15. Governing Law; Submission to Jurisdiction; Limitation of
Liability.
(a) Governing Law. THIS AGREEMENT AND ALL OTHER LOAN DOCUMENTS
(EXCEPT TO THE EXTENT, IF ANY, OTHERWISE EXPRESSLY STATED IN SUCH OTHER LOAN
DOCUMENTS) SHALL BE GOVERNED BY, CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CHOICE OF LAW PRINCIPLES.
(b) Certain Waivers. EACH OF THE BORROWER, THE AGENT AND THE LENDERS
HEREBY IRREVOCABLY AND UNCONDITIONALLY:
(i) AGREES THAT ANY ACTION, SUIT OR PROCEEDING BY ANY PERSON ARISING
FROM OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR ANY
STATEMENT, COURSE OF CONDUCT, ACT, OMISSION, OR EVENT OCCURRING IN
CONNECTION HEREWITH OR THEREWITH (COLLECTIVELY, "RELATED LITIGATION") MAY
BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION SITTING
IN THE CITY AND COUNTY OF NEW YORK, NEW YORK, SUBMITS TO THE JURISDICTION
OF SUCH COURTS, AND TO THE FULLEST EXTENT PERMITTED BY LAW AGREES THAT IT
WILL NOT BRING ANY RELATED LITIGATION IN ANY OTHER FORUM;
(ii) WAIVES ANY OBJECTION WHICH IT MAY HAVE AT ANY TIME TO THE LAYING
OF VENUE OF ANY RELATED LITIGATION BROUGHT IN ANY SUCH COURT, WAIVES ANY
CLAIM THAT ANY SUCH RELATED LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM, AND WAIVES ANY RIGHT TO OBJECT, WITH RESPECT TO ANY RELATED LITIGA-
TION BROUGHT IN ANY SUCH COURT, THAT SUCH COURT DOES NOT HAVE JURISDIC-
TION; AND
- 38 -
66
(iii) CONSENTS AND AGREES TO SERVICE OF ANY SUMMONS, COMPLAINT OR
OTHER LEGAL PROCESS IN ANY RELATED LITIGATION BY REGISTERED OR CERTIFIED
U.S. MAIL, POSTAGE PREPAID, AT THE ADDRESS FOR NOTICES DESCRIBED IN SEC-
TION 8.05 HEREOF, AND CONSENTS AND AGREES THAT SUCH SERVICE SHALL
CONSTITUTE IN EVERY RESPECT VALID AND EFFECTIVE SERVICE (BUT NOTHING
HEREIN SHALL AFFECT THE VALIDITY OR EFFECTIVENESS OF PROCESS SERVED IN ANY
OTHER MANNER PERMITTED BY LAW).
8.16. Confidentiality. Each party hereto agrees to keep confidential
any information concerning the business and financial activities of the other
party hereto obtained in connection with this Agreement except information
which (a) is lawfully in the public domain, (b) is obtained from a third party
who is not bound by an obligation of confidentiality with respect to such
information, (c) is required to be disclosed to any Governmental Authority
having jurisdiction over such person but only to the extent of such require-
ment, or (d) is disclosed by the Agent or any Lender in accordance with Section
8.14 hereof.
- 39 -
67
IN WITNESS WHEREOF, the parties hereto, by their officers thereunto duly
authorized, have executed and delivered this Agreement as of the date first
above written.
ATTEST: CURTISS-WRIGHT CORPORATION
Gary Benschip
By _______________ By Gary Benschip
Title: Title: Treasurer
[Corporate Seal]
Address for Notices:
1200 Wall Street West
Lyndhurst, NJ 07071
Attn: Mr. Robert Bosi, Treasurer
Telephone: 201-896-8439
Telecopier: 201-438-5680
MELLON BANK, N.A., individually
and as Agent
Joseph F Bond, Jr
By Joseph F Bond, Jr
Vice President
Initial Revolving Credit
Committed Amount: $7,500,000
Initial Additional
Committed Amount: $7,500,000
Commitment Percentage: 33.3333%
Address for Notices:
Corporate Banking Department
Mellon Financial Center
551 Madison Avenue
New York, NY 10022-3217
Attn: Joseph F. Bond, Jr.
Vice President
Telephone: 212-702-4017
Telecopier: 212-702-5269
68
MIDLANTIC BANK, NATIONAL ASSOCIATION (formerly
Midlantic National Bank)
Edward Tessalone
By Edward Tessalone
Title: Vice President
Initial Revolving Credit
Committed Amount: $5,000,000
Initial Additional
Committed Amount: $5,000,000
Commitment Percentage: 22.2222%
Address for Notices:
P.O. Box 600
499 Thornall Street
Edison, NJ 08818
Attn: Edward M. Tessalone
Vice President
Telephone: 908-321-8188
Telecopier: 908-321-2144
NATIONSBANK OF NORTH CAROLINA, N.A.
Moses James Sawney
By Moses James Sawney
Title: Vice President
Initial Revolving Credit
Committed Amount: $5,000,000
Initial Additional
Committed Amount: $5,000,000
Commitment Percentage: 22.2222%
Address for Notices:
767 Fifth Avenue - 5th Floor
New York, NY 10153
Attn: Moses James Sawney
Vice President
Telephone: 212-407-5328
Telecopier: 212-593-1083
69
THE BANK OF NOVA SCOTIA
Stephen Lockhart
By Stephen Lockhart
Title: Sr. Manager
Initial Revolving Credit
Committed Amount: $5,000,000
Initial Additional
Committed Amount: $5,000,000
Commitment Percentage: 22.2222%
Address for Notices:
One Liberty Plaza
New York, NY 10006
Attn: Mr. Brian Allen
Representative
Telephone: 212-225-5000
Telecopier: 212-225-5090
70
Exhibit A to Credit Agreement
CURTISS-WRIGHT CORPORATION
Revolving Credit Note
$ ________________ Pittsburgh, Pennsylvania
____________, 1994
FOR VALUE RECEIVED, the undersigned, CURTISS-WRIGHT CORPORATION, a
Delaware corporation (the "Borrower"), promises to pay to the order of [INSERT
PROPER NAME OF THE LENDER] (the "Lender") on or before the Expiration Date (as
defined in the Agreement referred to below), and at such earlier dates as may
be required by such Agreement, the lesser of (i) the principal sum of
__________________________ ($______________) or (ii) the aggregate unpaid
principal amount of all Revolving Credit Loans made by the Lender to the
Borrower from time to time pursuant to the Agreement. The Borrower further
promises to pay to the order of the Lender interest on the unpaid principal
amount hereof from time to time outstanding at the rate or rates per annum
determined pursuant to the Agreement, payable on the dates set forth in the
Agreement.
This Note is one of the "Revolving Credit Notes" as referred to in, and is
entitled to the benefits of, the Short Term Credit Agreement, dated as of
October 29, 1994 by and among the Borrower, the Lenders parties thereto from
time to time, and Mellon Bank, N.A., as Agent (as the same may be amended,
modified or supplemented from time to time, the "Agreement"), which among other
things provides for the acceleration of the maturity hereof upon the occurrence
of certain events and for prepayments in certain circumstances and upon certain
terms and conditions. Terms defined in the Agreement have the same meanings
herein.
The Borrower hereby expressly waives presentment, demand, notice, protest
and all other demands and notices in connection with the delivery, acceptance,
9performance, default or enforcement of this Note and the Agreement, and an
action for amounts due hereunder or thereunder shall immediately accrue.
This Note shall be governed by, construed and enforced in accordance with
the laws of the State of New York, without regard to principles of conflicts of
law.
CURTISS-WRIGHT CORPORATION
By ____________________________
Name: ____________________________
Title: ____________________________
71
Exhibit B to Credit Agreement
[Opinion of Counsel]
[To follow]
72
Exhibit C to Credit Agreement
Transfer Supplement
THIS TRANSFER SUPPLEMENT, dated as of the date specified in Item 1 of
Schedule I hereto, among the Transfer or Lender specified in Item 2 of Schedule
I hereto (the "Transferor Lender"), each Purchasing Lender specified in Item 3
of Schedule I hereto (each a "Purchasing Lender") and Mellon Bank, N.A., as
Agent for the Lenders under the Agreement described below.
Recitals:
A. This Transfer Supplement is being executed and delivered in accor-
dance with Section 8.14(c) of the Short Term Credit Agreement, dated as of
October 29, 1994 by and among Curtiss-Wright Corporation, a Delaware corpora-
tion (the "Borrower"), the Lenders parties thereto from time to time, and
Mellon Bank, N.A., a national banking association, as Agent for the Lenders (as
the same may be amended, modified or supplemented from time to time, the
"Agreement"). Capitalized terms used herein without definition have the
meaning specified in the Agreement.
B. Each Purchasing Lender (if it is not already a Lender) wishes to
become a Lender party to the Agreement.
C. The Transferor Lender is selling and assigning to each Purchasing
Lender, and each Purchasing Lender is purchasing and assuming, a certain por-
tion of the Transfer or Lender's rights and obligations under the Agreement,
including, without limitation, the Transferor Lender's Commitments and Loans
owing to it and any Notes held by it (the "Transferor Lender's Interests").
NOW, THEREFORE, the parties hereto, intending to be legally bound,
hereby agree as follows:
Section 111 Transfer Effective Notice. Upon receipt by the Agent of
five counterparts of this Transfer Supplement (to each of which is attached a
fully completed Schedule I and Schedule II), and each of which has been
executed by the Transferor Lender, by each Purchasing Lender and by any other
Person required by Section 8.14(c) of the Agreement to execute this Transfer
Supplement, the Agent will transmit to the Borrower, the Transferor Lender and
each Purchasing Lender a transfer effective notice, substantially in the form
of Schedule III to this Transfer Supplement (a "Transfer Effective Notice").
The date specified in such Transfer Effective Notice as the date on which the
transfer effected by this Transfer Supplement shall become effective (the
"Transfer Effective Date") shall be the fifth Business Day following the date
of such Transfer Effective Notice or such other date as shall be agreed upon
among the Transferor Lender, the Purchasing Lender, the Agent and the Borrower.
From and after the close of business at the Agent's Office on the Transfer
Effective Date each Purchasing Lender (if not already a Lender party to the
Agreement) shall be a Lender party to the Agreement for all purposes thereof
having the respective interests in the Transferor Lender's interests reflected
in this Transfer Supplement.
Section 121 Purchase Price; Sale. At or before 12:00 Noon, local
time at the Transferor Lender's office specified in Schedule III, on the
Transfer Effective Date, each Purchasing Lender shall pay to the Transferor
Lender, in immediately available funds, an amount equal to the purchase price,
as agreed between the Transferor Lender and such Purchasing Lender (the
"Purchase Price"), of the portion being purchased by such Purchasing Lender
- 1 -
73
(such Purchasing Lender's "Purchased Percentage") of the Transferor
Lender's Interests. Effective upon receipt by the Transferor Lender of the
Purchase Price from a Purchasing Lender, the Transferor Lender hereby
irrevocably sells, assigns and transfers to such Purchasing Lender, without
recourse, representation or warranty (express or implied) except as set forth
in Section 6 hereof, and each Purchasing Lender hereby irrevocably purchases,
takes and assumes from the Transferor Lender such Purchasing Lender's Purchased
Percentage of the Transferor Lender's Interests. The Transferor Lender shall
promptly notify the Agent of the receipt of the Purchase Price from a
Purchasing Lender ("Purchase Price Receipt Notice"). Upon receipt by the Agent
of such Purchase Price Receipt Notice, the Agent shall record in the Register
the information with respect to such sale and purchase as contemplated by
Section 8.14(d) of the Agreement.
Section 131 Principal, Interest and Fees. All principal payments,
interest, fees and other amounts that would otherwise be payable from and after
the Transfer Effective Date to or for the account of the Transferor Lender in
respect of the Transferor Lender's Interests shall, instead, be payable to or
for the account of the Transferor Lender and the Purchasing Lenders, as the
case may be, in accordance with their respective interests as reflected in this
Transfer Supplement.
Section 141 Closing Documents. Concurrently with the execution and
delivery hereof, the Transferor Lender will request that the Borrower provide
to each Purchasing Lender (if it is not already a Lender party to the Agree-
ment) conformed copies of all documents delivered to such Transferor Lender on
the Closing Date in satisfaction of conditions precedent set forth in the
Agreement.
Section 151 Further Assurances. Each of the parties to this Transfer
Supplement agrees that at any time and from time to time upon the written
request of any ther party, it will execute and deliver such further documents
and do such further acts and things as such other party may reasonably request
in order to effect the purposes of this Transfer Supplement.
Section 161 Certain Representations and Agreements. By executing and
delivering this Transfer Supplement, the Transferor Lender and each Purchasing
Lender confirm to and agree with each other and the Agent and the Lenders as
follows:
11a Other than the representation and warranty that it is the legal
and beneficial owner of the interest being assigned hereby free and clear of
any adverse claim, the Transferor Lender makes no representation or warranty
and assumes no responsibility with respect to (i) the execution, delivery,
effectiveness, enforceability, genuineness, validity or adequacy of the
Agreement or any other Loan Document, (ii) any recital, representation,
warranty, document, certificate, report or statement in, provided for in,
received under or in connection with, the Agreement or any other Loan Document,
or (iii) the existence, validity, enforceability, perfection, recordation,
priority, adequacy or value, now or hereafter, of any Lien or other direct or
indirect security afforded or purported to be afforded by any of the Loan
Documents or otherwise from time to time.
12a The Transferor Lender makes no representation or warranty and
assumes no responsibility with respect to (i) the performance or observance of
any of the terms or conditions of the Agreement or any other Loan Document on
the part of the Borrower, (ii) the business, operations, condition (financial
or otherwise) or prospects of the Borrower or any other Person, or (iii) the
- 2 -
74
existence of any Event of Default or Potential Default.
13a Each Purchasing Lender confirms that it has received a copy of
the Agreement and each of the other Loan Documents, together with copies of the
financial statements referred to in Section 4.05 thereof, the most recent
financial statements delivered pursuant to Section 6.01 thereof, if any, and
such other documents and information as it has deemed appropriate to make its
own credit and legal analysis and decision to enter into this Transfer
Supplement. Each Purchasing Lender confirms that it has made such analysis and
decision independently and without reliance upon the Agent, the Transferor
Lender or any other Lender.
14a Each Purchasing Lender, independently and without reliance upon
the Agent, the Transferor Lender or any other Lender, and based on such
documents and information as it shall deem appropriate at the time, will make
its own decisions to take or not take action under or in connection with the
Agreement or any other Loan Document.
15a Each Purchasing Lender that is not a Lender and that is not
chartered under the laws of the United States or a state thereof shall provide
the Borrower and the Agent with any documentation either of them may reasonably
request pertaining to withholding taxes and backup withholding.
16a Each Purchasing Lender irrevocably appoints the Agent to act as
Agent for such Purchasing Lender under the Agreement and the other Loan
Documents, all in accordance with Article IX of the Agreement and the other
provisions of the Agreement and the other Loan Documents.
17a Each Purchasing Lender agrees that it will perform in accordance
with their terms all of the obligations which by the terms of the Agreement and
the other Loan Documents are required to be performed by it as a Lender.
Section 171 Schedule II. Schedule II hereto sets forth the revised
Commitments of the Transferor Lender and each Purchasing Lender as well as
administrative information with respect to each Purchasing Lender.
Section 181 Governing Law. This Transfer Supplement shall be governed
by, construed and enforced in accordance with the laws of the State of New
York, without regard to principles of conflicts of law.
Section 191 Counterparts. This Transfer Supplement may be executed on
any number of counterparts and by the different parties hereto on separate
counterparts each of which, when so executed, shall be deemed an original, but
all such counterparts shall constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Transfer
Supplement to be executed by their respective duly authorized officers on
Schedule I hereto as of the date set forth in Item 1 of Schedule I hereto.
- 3 -
75
Schedule I to Transfer Supplement
COMPLETION OF INFORMATION AND
SIGNATURES FOR TRANSFER SUPPLEMENT
Re: Short Term Credit Agreement, dated as of October 29, 1994, by and among
Curtiss-Wright Corporation, a Delaware corporation (the "Borrower"), the
Lenders parties thereto from time to time, and Mellon Bank, N.A., a national
banking association, as Agent for the Lenders (as amended, modified or supple-
mented from time to time, the "Agreement")
Item 1 (Date of Transfer Supplement): [Insert date of Transfer Supplement]
Item 2 (Transferor Lender): [Insert name of Transferor Lender]
Item 3 (Purchasing Lender[s]): [Insert name[s] of Purchasing Lender[s]]
Item 4 (Signatures of Parties
to Transfer Supplement):
[Name of Transferor Lender],
as Transferor Lender
By : ______________________
Name: _____________________________
Title: _____________________________
[Name of Purchasing Lender],
as Purchasing Lender
By : ______________________
Name: _____________________________
Title: _____________________________
[Name of Purchasing Lender],
as Purchasing Lender
By : ______________________
Name: _____________________________
Title: _____________________________
76
[Following consents required only when Purchasing Lender is not a Lender]
CONSENTED TO AND ACKNOWLEDGED:
MELLON BANK, N.A., as Agent
By: _______________________
Name: _______________________
Title _______________________
CONSENTED TO AND ACKNOWLEDGED:
CURTISS-WRIGHT CORPORATION
By: _______________________
Name: _______________________
Title _______________________
ACCEPTED FOR RECORDATION IN REGISTER:
MELLON BANK, N.A., as Agent
By: _______________________
Name: _______________________
Title _______________________
77
Schedule II to Transfer Supplement
LIST OF LENDING OFFICES, ADDRESSES
FOR NOTICES AND COMMITTED AMOUNTS
[Name of Transferor Lender,
Lending Office and Address] Revised Commitment and Loan Amounts:
------------------------------------
Revolving Credit
Committed Amount: $__________
Commitment Percentage of
Total Commitment: _________%
[Name of Purchasing
Lender] New Commitment and Loan Amounts:
Revolving Credit
Committed Amount: $__________
Commitment Percentage of
Total Commitment: _________%
Administrative Information
for Purchasing Lender:
Address: _____________________
_____________________
Attention: _____________________
Telephone: _____________________
Telex: _____________________
(Answerback:_____________________)
Telecopier: _____________________
78
Schedule III to Transfer Supplement
Transfer Effective Notice
To: Curtiss-Wright Corporation
[Insert Name of Transferor
Lender and each Purchasing Lender]
The undersigned, as Agent under the Short Term Credit Agreement, dated
as of October 29, 1994, by and among Curtiss-Wright Corporation, a Delaware
corporation, the Lenders parties thereto from time to time, and Mellon Bank,
N.A., a national banking association, as Agent for the Lenders (as the same may
be amended, modified or supplemented from time to time, the "Credit Agree-
ment"), acknowledges receipt of five executed counterparts of a completed
Transfer Supplement, dated , 199 , from [name of Transferor Lender]
to [name of each Purchasing Lender] (the "Transfer Supplement"). Terms defined
in the Transfer Supplement are used herein as therein defined.
1. Pursuant to the Transfer Supplement, you are advised that the
Transfer Effective Date will be , 199 . [Insert fifth Business Day
following date of Transfer Effective Notice or other date agreed to among the
Transferor Lender, the Purchasing Lender, the Agent and the Borrower.]
2. Pursuant to Section 8.14(c) of the Credit Agreement, the Trans-
feror Lender has delivered to the Agent the Transferor Lender Notes.
3. Section 8.14(c) of the Credit Agreement provides that the Borrower
is to deliver to the Agent on or before the Transfer Effective Date the follow-
ing Notes, each dated the date of the Note it replaces.
[Describe each new Revolving Credit Note for Transferor Lender and
Purchasing Lender as to date (as required by the Credit Agreement), principal
amount and payee.]
4. The Transfer Supplement provides that each Purchasing Lender is to
pay its Purchase Price to the Transferor Lender at or before 12:00 o'clock
Noon, local time at the Transferor Lender's lending office specified in
Schedule II to the Transfer Supplement, on the Transfer Effective Date in
immediately available funds.
Very truly yours,
MELLON BANK, N.A., as Agent
By: _________________________
Name: _________________________
Title: _________________________
EX-10
3
MATERIAL CONTRACT
79
Exhibit (10) (vi)
CURTISS-WRIGHT CORPORATION
RETIREMENT PLAN
80
CURTISS-WRIGHT CORPORATION RETIREMENT PLAN
------------------------------------------
TABLE OF CONTENTS
-----------------
ARTICLE 1 - DEFINITIONS ................................................ 1
ARTICLE 2 - ELIGIBILITY ................................................ 13
ARTICLE 3 - COMPANY CONTRIBUTIONS ...................................... 14
ARTICLE 4 - CASH BALANCE CONTRIBUTION & CREDITS TO ACCOUNTS ............ 15
ARTICLE 5 - VESTING .................................................... 17
ARTICLE 6 - AMOUNT & COMMENCEMENT OF RETIREMENT BENEFIT ................ 20
ARTICLE 7 - FORM OF BENEFIT PAYMENT .................................... 36
ARTICLE 8 - DEATH BENEFIT .............................................. 41
ARTICLE 9 - RETIREMENT BENEFITS UNDER COLLECTIVE BARGAINING AGREEMENT .. 46
ARTICLE 10 - MERGER OF METAL IMPROVEMENT COMPANY, INC. & CURTISS-WRIGHT
FLIGHT SYSTEMS/SHELBY, INC. CONTRIBUTORY RETIREMENT PLANS .. 64
ARTICEL 11 - ADMINISTRATION ............................................. 66
ARTICLE 12 - AMENDMENT & TERMINATION OF PLAN ............................ 68
ARTICLE 13 - MERGER OF PLAN & TRANSFER OF ASSETS OR LIABILITIES ......... 72
ARTICLE 14 - SPECIAL PROVISIONS FOR NON-KEY EMPLOYEES ................... 73
ARTICLE 15 - GENERAL PROVISIONS ......................................... 78
81
CURTISS-WRIGHT CORPORATION RETIREMENT PLAN
WITNESSETH:
WHEREAS, the CURTISS-WRIGHT CONTRIBUTORY RETIREMENT PLAN, a defined
benefit retirement plan, was established for eligible non-union Employees
of the Company. The benefits under the retirement plan were also available
to the Company's union employees whose collective bargaining units
negotiated for these benefits. The Plan, as amended, and as restated from
time to time, had been approved by the Internal Revenue Service as a
qualified plan under the applicable Federal income tax laws.
WHEREAS, effective December 31, 1991, the CURTISS-WRIGHT PENSION PLAN
was merged into the CURTISS-WRIGHT CONTRIBUTORY RETIREMENT PLAN.
WHEREAS, wherever the words "Prior Plan" are used below, they shall
refer to the CURTISS-WRIGHT CONTRIBUTORY RETIREMENT PLAN, established on
May 1, 1953, and which was in full force and operation through August 31,
1994.
WHEREAS, effective September 1, 1994, the METAL IMPROVEMENT COMPANY,
INC. RETIREMENT INCOME PLAN and the CURTISS-WRIGHT FLIGHT SYSTEMS/SHELBY,
INC. CONTRIBUTORY RETIREMENT PLAN were merged into the CURTISS-WRIGHT
CONTRIBUTORY RETIREMENT PLAN.
NOW, THEREFORE, the CURTISS-WRIGHT CONTRIBUTORY RETIREMENT PLAN, the
Prior Plan, is hereby renamed and amended by restating it in its entirety
and shall hereafter be known and referred to as the CURTISS-WRIGHT
CORPORATION RETIREMENT PLAN (hereinafter referred to as the "Restated Plan"
or the "Plan").
ARTICLE 1
DEFINITIONS
Wherever used herein, the following terms shall have the following
meanings unless the context otherwise requires:
1.01 "Actuarial Equivalent" means the value determined on the basis of
applicable factors set forth below or as otherwise specifically set forth
in the Plan.
For calculating Joint & Survivor reduction factors which are applied
to a Life Annuity benefit, the UP 84 mortality table with a one (1) year
setback for participant and a four (4) year setback for beneficiaries at an
interest rate of seven (7%) percent, effective January 1, 1992. The factor
will consider years and months. For calculating lump sum factors,
converting the Cash Balance Account into an immediate annuity, deriving the
employee annuity based upon the cashout of employee contributions with
interest at a specified date, the UP 84 mortality table with no setback for
the participant and a three (3) year setback for beneficiaries, using the
IRC Section 417(e)(3)(A)(i) interest rates. All lump sums that are paid to
participants after age fifty-five (55), regardless of whether the
participant terminated prior to age fifty-five (55), will use an immediate
annuity factor times the early retirement factor at that age. All lump
sums paid before age fifty-five (55) will use a deferred annuity factor
deferred to age sixty-five (65).
- 1 -
82
For an annuity that commences prior to Early Retirement Date, the 1983
GAM for Males and Females with an eighty (80%) percent weighting on the
male table's q and a twenty (20%) percent weighting on the female table's
q. The interest rate is six (6%) percent. The early retirement reduction
factor will be based on benefit payments that would have commenced at age
sixty-five (65), reduced without subsidy to an age below fifty-five (55).
1.02 "Age" means the years and months attained by a Participant.
1.03 "Affiliated Service Group" or "Controlled Group" means the Company and
all corporations, partnerships or other organizations, the Employees of
which are treated as employed by the Company pursuant to Section 414(b),
(c), (m), (n) or (o) of the Code, as modified, where applicable, by Section
415(h) of the Code.
1.04 "Annuity Starting Date" means the first day of the period for which an
amount is payable as an annuity. If a benefit is not payable in the form
of an annuity, the first day on which all events have occurred which
entitle the Participant to such benefit.
1.05 "Average Compensation" means the average of a Participant's
Compensation over the sixty (60) consecutive months within the last one
hundred twenty (120) months which produces the highest average. If the
Participant has less than sixty (60) months of Service, Compensation is
averaged over the Participant's months of Service from the date of his
employment to his date of termination of employment.
1.06 "Beneficiary" means the individual or entity designated as such by a
Participant pursuant to the Plan or otherwise entitled to receive any
payment pursuant to the Plan upon the death of the Participant. If with
respect to any payment no individual or entity has been designated by a
Participant, or no designated Beneficiary survives the Participant, the
Participant's Beneficiary shall be (a) the Participant's surviving Spouse,
if living at the time of such payment; or in default thereof (b) the
Participant's surviving issue, per stirpes; or in default thereof (c) the
Participant's estate.
1.07 "Board of Directors" means the Board of Directors of the Company.
1.08 "Code" means the Internal Revenue Code of 1986, as amended from time
to time, and the corresponding provisions of any subsequently enacted
Federal tax laws.
1.09 "Committee" means the Committee appointed by the President to
administer the Plan as agent of the Company.
1.10 "Company" or "Employer" means CURTISS-WRIGHT CORPORATION, including
any affiliate or subsidiary of the Company which shall adopt this Plan for
its Employees, with the approval of the Company, and any other corporation,
partnership, business association or proprietorship which shall have
assumed in writing the obligations of the Plan and Trust, with the approval
of the Company, including any successor to an Employer as a result of a
statutory merger, purchase of assets or any other form of reorganization of
the business of the Company.
1.11 "Compensation" means all of each Participant's regular or base salary
or wages, including overtime pay, commissions and payments under the
Company's incentive compensation plan or bonus plans.
- 2 -
83
Compensation shall include only that Compensation which is actually
paid to the Participant during the applicable period. Except as provided
elsewhere in this Plan, the applicable period shall be the Plan Year.
Notwithstanding the above, Compensation shall include any amount which
is contributed by the Company pursuant to a salary reduction agreement and
which is not includable in the gross income of the Employee under Sections
125, 402(a)(8), 402(h) or 403(b) of the Code.
In addition to other applicable limitations set forth in the Plan, and
notwithstanding any other provision of the Plan to the contrary, for Plan
Years beginning on or after January 1, 1994, the annual Compensation of
each Employee taken into account under the Plan shall not exceed the OBRA '93
annual compensation limit. The OBRA '93 annual compensation limit is
$150,000, as adjusted by the Commissioner for increases in the cost of
living in accordance with Section 401(a)(17)(B) of the Code. The cost-of-
living adjustment in effect for a calendar year applies to any period, not
exceeding twelve (12) months, over which compensation is determined
(determination period) beginning in such calendar year. If a determination
period consists of fewer than twelve (12) months, the OBRA '93 annual
compensation limit will be multiplied by a fraction, the numerator of which
is the number of months in the determination period, and the denominator of
which is twelve (12).
For Plan Years beginning on or after January 1, 1994, any reference in
this Plan to the limitation under Section 401(a)(17) of the Code shall mean
the OBRA '93 annual compensation limit set forth in this provision.
If Compensation for any prior determination period is taken into
account in determining an Employee's benefits accruing in the current Plan
Year, the Compensation for that prior determination period is subject to
the OBRA '93 annual compensation limit in effect for that prior
determination period. For this purpose, for determination periods
beginning before the first day of the first Plan Year beginning on or after
January 1, 1994, the OBRA '93 annual compensation limit is $150,000.
If Compensation for any Plan Year beginning before January 1, 1994 is
taken into account in determining an Employee's contributions or benefits
for the current year, the compensation for such prior year is subject to
the applicable annual compensation limit in effect for that prior year.
Notwithstanding any provision in this Plan to the contrary, however,
subject to any limitations imposed under Code Section 417, effective for
periods prior to September 1, 1994, Compensation shall mean:
(a) for each calendar month prior to July 1, 1970, 1/12th of his
basic salary (on an annual basis) in effect at the beginning of each Plan
Year; and
(b) for each calendar month after June 30, 1970, 1/12th of the sum of
his basic salary (on an annual basis) in effect at the beginning of each
Plan Year, plus any cash payments he received in the prior Plan Year under
the Company's Modified Incentive Compensation Plan;
and shall remain constant throughout each particular Plan Year (except for
the effect on the last half of the 1970 Plan Year of cash payments received
in 1969 under the Company's Modified Incentive Compensation Plan)
regardless of increases or decreases in actual salary. In the case of an
Employee not eligible to participate under the Plan at the beginning of a
- 3 -
84
Plan Year, his Compensation for the remaining months of that Plan Year
shall be 1/12th of his basic salary (on an annual basis) in effect on his
eligibility date. For purposes only of subparagraphs 3(c)(i)(B) of Article
III of the Prior Plan, Compensation means:
(c) prior to July 1, 1970, the basic salary or basic wages actually
paid to the Employee in the particular Plan Year;
(d) after June 30, 1970, the basic salary or basic wages plus cash
payments under the Company's Modified Incentive Compensation Plan actually
paid to the Employee in the particular Plan Year; and
(e) after July 1, 1982, basic salary, basic wages or compensation
received under either the Company's Modified Incentive Compensation Plan or
the Metal Improvement Company bonus plan shall not be considered under this
Plan as reduced on account of any deferral or contribution which is made
pursuant to the CURTISS-WRIGHT CORPORATION DEFERRED COMPENSATION PLAN.
Basic salary, basic wages or Compensation received under either the
Company's Modified Incentive Compensation Plan or the Metal Improvement
Company bonus plan shall be calculated as if no deferral or contributions
were made to the CURTISS-WRIGHT CORPORATION DEFERRED COMPENSATION PLAN.
"Basic salary or basic wages" of an Employee means his basic salary or
basic wages only, and shall in no case include any amounts paid to him as
overtime, bonuses, deferred compensation or additional compensation of any
sort.
1.12 "Covered Compensation" means with respect to any Participant for Plan
Years beginning after December 31, 1994 the average (without indexing) of
the Taxable Wage Bases in effect for each calendar year during the thirty-
five (35) year period ending with the last day of the current calendar
year, and for Plan Years beginning prior to January 1, 1995, the thirty-
five (35) year period ending with the last day of the calendar year prior
to the current calendar year. The determination of Covered Compensation
shall be made with reference to Section 1.401(l)-1(c)(7) of the Treasury
Regulations. A Participant's Covered Compensation shall be adjusted each
Plan Year and no increase in Covered Compensation shall decrease a Partic-
ipant's retirement benefit. In determining the Covered Compensation for a
Plan Year, the Taxable Wage Base for all calendar years beginning after the
first day of the Plan Year is assumed to be the same as the Taxable Wage
Base in effect as of the beginning of the Plan Year. Any change in a
Participant's Covered Compensation shall not cause any reduction in his
retirement benefit.
1.13 "Credited Service" means completed years and calendar months of
employment and shall include the following:
(a) The periods of employment of an Employee with the Company or with
a member of the Controlled Group while eligible to participate under the
Plan following his most recent date of hire and prior to the earlier of his
retirement.
(b) Any periods of Leave of Absence approved by the Company in
writing, or military leave during the period in Subsection (a) above.
(c) For periods on or after May 1, 1966 and before December 31, 1991,
Credited Service of an Employee eligible to participate in this Plan shall
include Service which would be creditable under the CURTISS-WRIGHT PENSION
PLAN for any periods of his employment not included as Credited Service
under Subsections (a) and (b) above.
- 4 -
85
For purposes of determining Credited Service for the Prior Plan, the
following provisions shall apply:
(i) Only Employees who were Participants under the terms of the
Prior Plan shall be entitled to Credited Service.
(ii) Credited Service shall mean completed years and calendar
months of employment, including periods of employment with the Company or a
member of the Controlled Group following his most recent date of hire
preceding December 31, 1991.
Notwithstanding any provision in this Plan to the contrary, a
Participant who elects Disability Retirement shall continue to receive
credit for Years of Credited Service and Vesting Years of Service until his
Normal Retirement Date and shall be deemed to receive Compensation in each
such year in an amount equal to his Compensation on the date on which
payment of his Long Term Disability Benefits commenced.
Notwithstanding any provision in this Plan to the contrary, for
purposes of determining Credited Service, an Employee shall be credited
with a calendar month of Service for a month in which such Participant
completes one (1) Hour of Service. This provision shall apply only in the
month of hire and the month of separation of Service.
1.14 "Disability" means a physical or mental impairment that, in the
opinion of the Committee, is of such permanence and degree that the
Participant is unable, because of such impairment, to perform any gainful
activity for which the Participant is entitled by virtue of experience,
training, or education. The permanence and degree of such impairment shall
be supported by medical evidence.
1.15 "Disability Retirement Date" means the date that a Participant who is
totally and permanently disabled elects to retire and commence to receive
his Disability Retirement Benefits.
1.16 "Early Retirement Date" means the date on which a Participant has
attained at least age fifty-five (55) and completed at least five (5) Years
of Credited Service.
1.17 (a) "Effective Date" means September 1, 1994.
(b) "Original Effective Date" means May 1, 1953.
1.18 "Employee" means any Employee of the Company maintaining the Plan or
of any other Employer required to be aggregated with such Company under
Section 414(b), (c), (m) or (o) of the Code.
The term Employee shall also include any leased Employee deemed to be
an Employee of any Employer described in the previous paragraph as provided
in Section 414(n) or (o) of the Code.
1.19 "Entry Date" means the first day of every January, April, July and
October.
1.20 "ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the corresponding provisions of any
subsequently enacted pension laws.
- 5 -
86
1.21 "Fiduciary" means any Person that exercises any discretionary
authority or discretionary control respecting the management or disposition
of Plan assets or renders any investment advice for a fee or other
compensation or exercises any discretionary authority or responsibility for
the administration of the Plan.
1.22 "Highly Compensated Employee" means any highly compensated active
employees and highly compensated former employees.
A highly compensated active employee includes any Employee who
performs Service for the Company during the determination year and who,
during the look-back year: (i) received Compensation from the Company in
excess of $75,000 (as adjusted pursuant to Section 415(d) of the Code);
(ii) received Compensation from the Company in excess of $50,000 (as
adjusted pursuant to Section 415(d) of the Code) and was a member of the
top-paid group for such year; or (iii) was an officer of the Company and
received Compensation during such year that is greater than fifty (50%)
percent of the dollar limitation in effect under Section 415(b)(1)(A) of
the Code. The term Highly Compensated Employee also includes: (i)
Employees who are both described in the preceding sentence if the term
"determination year" is substituted for the term "look-back year" and the
Employee is one of the one hundred (100) Employees who received the most
Compensation from the Company during the determination year; and (ii)
Employees who are five (5%) percent owners at any time during the look-back
year or determination year.
If no officer has satisfied the Compensation requirement of (iii)
above during either a determination year or look-back year, the highest
paid officer for such year shall be treated as a Highly Compensated
Employee.
For this purpose, the determination year shall be the Plan Year. The
look-back year shall be the twelve (12) month period immediately preceding
the determination year.
A highly compensated former employee includes any Employee who
separated from service (or was deemed to have separated) prior to the
determination year, performs no service for the Company during the
determination year, and was a highly compensated active employee for either
the separation year or any determination year ending on or after the
Employee's fifty-fifth (55th) birthday.
If an Employee is, during a determination year or look-back year, a
family member of either a five (5%) percent owner who is an active or
former Employee or a Highly Compensated Employee who is one of the ten (10)
most Highly Compensated Employees ranked on the basis of Compensation paid
by the Company during such year, then the family member and the five (5%)
percent owner or top ten (10) Highly Compensated Employee shall be
aggregated. In such case, the family member and five (5%) percent owner or
top ten (10) Highly Compensated Employee shall be treated as a single
Employee receiving Compensation and Plan contributions or benefits equal to
the sum of such Compensation and contributions or benefits of the family
member and five (5%) percent owner or top ten (10) Highly Compensated
Employee. For purposes of this Section, family member includes the spouse,
lineal ascendants and descendants of the Employee or former Employee and
the spouses of such lineal ascendants and descendants.
- 6 -
87
The determination of who is a Highly Compensated Employee, including
the determinations of the number and identity of Employees in the top-paid
group, the top one hundred (100) Employees, the number of Employees treated
as officers and the Compensation that is considered, will be made in
accordance with Section 414(q) of the Code and the regulations thereunder.
1.23 "Hour of Service" means:
(a) Each hour for which an Employee is paid, or entitled to payment,
for the performance of duties for the Company. These hours will be
credited to the Employee for the computation period in which the duties are
performed; and
(b) Each hour for which an Employee is paid, or entitled to payment,
by the Company on account of a period of time during which no duties are
performed (irrespective of whether the employment relationship has
terminated) due to vacation, holiday, illness, incapacity (including
disability), layoff, jury duty, military duty or Leave of Absence. No more
than five hundred one (501) Hours of Service will be credited under this
paragraph for any single continuous period (whether or not such period
occurs in a single computation period). Hours under this paragraph will be
calculated and credited pursuant to Section 2530.200b-2 of the Department
of Labor Regulations, which is incorporated herein by this reference; and
(c) Each hour for which back pay, irrespective of mitigation of
damages, is either awarded or agreed to by the Company. The same Hours of
Service will not be credited both under paragraph (a) or paragraph (b), as
the case may be, and under this paragraph (c). These hours will be
credited to the Employee for the computation period or periods to which the
award or agreement pertains rather than the computation period in which the
award, agreement or payment is made.
Hours of Service will be credited for employment with other members of
an Affiliated Service Group (under Section 414(m) of the Code), a
Controlled Group (under Section 414(b) of the Code), or a group of trades
or businesses under common control (under Section 414(c) of the Code) of
which the adopting Employer is a member, and any other entity required to
be aggregated with the Company pursuant to Section 414(o) of the Code and
the regulations thereunder.
Hours of Service will also be credited for any individual considered
an Employee for purposes of this Plan under Section 414(n) or (o) of the
Code and the regulations thereunder.
Notwithstanding any provision in this Plan to the contrary, Hours of
Service shall not be credited for severance pay.
1.24 "Leased Employee" means any person (other than an Employee of the
recipient) who pursuant to an agreement between the recipient and any other
person ("leasing organization") has performed services for the recipient
(or for the recipient and related persons determined in accordance with
Section 414(n)(6) of the Code) on a substantially full-time basis for a
period of at least one year, and such services are of a type historically
performed by Employees in the business field of the recipient Employer.
Contributions or benefits provided a Leased Employee by the leasing
organization which are attributable to services performed for the recipient
Employer shall be treated as provided by the recipient Employer.
A Leased Employee shall not be considered an Employee of the recipient
if: (i) such Employee is covered by a money purchase pension plan
- 7 -
88
providing: (1) a nonintegrated employer contribution rate of at least ten
(10%) percent of Compensation, as defined in Section 415(c)(3) of the Code,
but including amounts contributed by the Company pursuant to a salary
reduction agreement which are excludable from the Employee's gross income
under Section 125, Section 402(a)(8), Section 402(h) or Section 403(b) of
the Code, (2) immediate participation, and (3) full and immediate vesting;
and (ii) Leased Employees do not constitute more than twenty (20%) percent
of the recipient's nonhighly compensated workforce.
1.25 "Leave of Absence" means any leave of absence which may be granted by
the Company in accordance with reasonable standards and policies uniformly
observed and consistently applied and may include, by way of illustration
and not limitation, leaves of absence granted because of illness of the
Employee or of his family members, vacations without pay, and pursuit of
educational or vocational studies.
1.26 "Life Annuity" means a benefit payable in equal monthly amounts for
the life of the annuitant and ceasing with the payment made on the first
day of the month in which the annuitant dies.
1.27 "Limitation Year" means, for purposes of complying with Section 415 of
the Code, a Plan Year.
1.28 "Maternity/Paternity Leave" means a temporary cessation from active
employment with the Company or with any member of the Controlled Group
which begins on or after the first day of the first Plan Year beginning
after December 31, 1984, for any of the following reasons:
(a) the pregnancy of the Employee;
(b) the birth of a child of the Employee;
(c) the placement of a child with the Employee in connection with the
adoption of such child by the Employee; or
(d) the caring for such child for a period beginning immediately
following such birth or placement; provided, however, that in order for an
Employee's absence to qualify as a Maternity/ Paternity Leave of Absence,
the Employee must furnish the Committee in a timely manner, with such
information and documentation as the Committee may reasonably request to
establish that the absence from work is for reasons referred to above and
the number of days for which there was such absence.
1.29 "Named Fiduciary" means the Company.
1.30 "Normal Retirement Age" means the later of:
(a) the date a Participant attains age sixty-five (65); or
(b) the fifth (5th) anniversary of the date as of which the
Participant commenced employment.
1.31 "Normal Retirement Date" means the first day of the month coinciding
with or next following the Participant's Normal Retirement Age.
1.32 "OBRA '93" means the Omnibus Reconciliation Act of 1993.
- 8 -
89
1.33 "Participant" means a person who meets the requirements of Article 2,
9 or 10 for participation in the Plan, including a former Participant.
1.34 "Plan" means the CURTISS-WRIGHT CORPORATION RETIREMENT PLAN, as set
forth herein and as it may be amended.
1.35 "Plan Year" means:
(a) prior to May 1, 1966, a twelve (12) month period starting May 1
and ending April 30 of the succeeding year; and
(b) the eight (8) month period starting May 1, 1966 and ending
December 31, 1966; and
(c) commencing with January 1, 1967, a twelve (12) month period
starting January 1 and ending December 31 of the same calendar year.
1.36 "Present Value" means the Actuarial Equivalent, as defined in Section
1.01, of the Normal Form of Benefit.
1.37 "Qualified Joint and Survivor Annuity" means an immediate annuity for
the life of the Participant with a survivor annuity for the life of the
Spouse, which is not less than fifty (50%) percent and not more than one
hundred (100%) percent of the amount of the annuity, which is payable
during the joint lives of the Participant and the Spouse, and which is the
amount of benefit which can be purchased with the actuarial equivalent of
the Participant's vested retirement benefit.
1.38 "Service" means all periods of employment with the Company. The
period of employment begins when a Participant first completes one (1) Hour
of Service and ends on the earlier of the date the Employee resigns, is
discharged, retires, dies or, if the Employee is absent for any other
reason, on the first anniversary of the first day of such absence (with or
without pay) from the Company. If an Employee is absent for any reason and
returns to the employ of the Company before incurring a One-Year Break in
Service, he will receive credit for his period of absence up to a maximum
of twelve (12) months. Service subsequent to a One-Year Break in Service
will be credited as a separate period of employment.
1.39 "Severance From Service Date" means the earliest of the date on which
an Employee (a) resigns, retires, is discharged or dies, or (b) the first
anniversary of the first date of absence for any reason.
1.40 "Spouse" means the person to whom the Participant is legally married
at the earlier of the Participant's death or the date on which payment of
the Participant's benefits commence, and any former Spouse to the extent
provided under a qualified domestic relations order as described in Section
414(p) of the Code ("QDRO"). Except as otherwise required pursuant to a
QDRO, an individual shall not be considered to be a Spouse eligible to
receive the Spouse's Survivor Annuity pursuant to Section 8.01, unless such
individual was married to the Participant for the one-year period ending on
the Participant's death.
1.41 "Taxable Wage Base" means the maximum amount of earnings which may be
considered wages with respect to any Plan Year under Code Section
3121(a)(1) and determined as of the first day of each such Plan Year.
1.42 "Trust" means the trust created by the Trust Agreement.
1.43 "Trust Agreement" means the agreement entered into with a bank or
trust company establishing the Trust under the Plan for the purpose of
- 9 -
90
holding contributions under the Plan and for the payment of benefits under
the Plan, as such agreement may be amended from time to time.
1.44 "Trust Fund" means the assets of the Trust.
1.45 "Trustee" means the person or persons acting as trustee or trustees
hereunder at any time or from time to time. A Trustee shall be deemed to
be a "named fiduciary" pursuant to Section 402(a)(1) of ERISA.
1.46 "Vesting Year of Service" means any Plan Year during which the
Employee is credited with at least one thousand (1,000) Hours of Service.
Vesting Years of Service shall include all Years of Service prior to this
restatement for which such Employee received a Year of Service for vesting
purposes under the terms of the Prior Plan or under the terms of either the
METAL IMPROVEMENT COMPANY, INC. RETIREMENT INCOME PLAN or the CURTISS-
WRIGHT FLIGHT SYSTEMS/SHELBY, INC. CONTRIBUTORY RETIREMENT PLAN. If the
Company maintains the Plan of a predecessor Employer, Service with such
Employer will be treated as Service for the Company.
1.47 "Year of Eligibility Service" means the completion of a twelve (12)
consecutive month period of Service which commences on the date the
Employee first completes one (1) Hour of Service.
1.48 "Year of Credited Service" means each year with the Company with
respect to which benefits are treated as accruing on behalf of the
Participant for such year pursuant to Section 1.13 of the Plan.
1.49 "Year of Service" means, unless otherwise indicated, twelve (12)
consecutive months of Service.
- 10 -
91
ARTICLE 2
ELIGIBILITY
2.01 Eligibility for Participation.
(a) Any non-union Employee and any union Employee (whose union has
negotiated a benefit under this Plan), employed by the Company as of the
Effective Date, shall become a Participant under this Plan as of the
Effective Date.
(b) Any future non-union Employee and union Employee (whose union has
negotiated a benefit under this Plan), shall be eligible to participate in
the Plan as of the Entry Date coinciding with or next following the date he
completes his Year of Eligibility Service, provided that he satisfies the
following eligibility requirements:
(i) He shall be a salaried or hourly Employee;
(ii) He shall either be employed by the Company in the United
States, or, if he is in the employ of a participating subsidiary and/or
constituent corporation now or hereafter organized under the laws of a
country, or political subdivision thereof, foreign to the United States of
America, he shall be a citizen of the United States of America.
2.02 Break in Service. There are no Breaks in Service under the terms of
this Plan.
- 1 -
92
ARTICLE 3
COMPANY CONTRIBUTIONS
3.01 Amount. Effective September 1, 1994, no contribution shall be
required of any Participant as a condition of his participation in the
Plan. The Company shall contribute to the Plan, for each Plan Year at
least the amount, if any, necessary to satisfy the minimum funding
requirements of the Code for such Plan Year.
3.02 Payment. Company contributions for any Plan Year shall be paid in
cash to the Trustee no later than the date prescribed by Section 412 of the
Code (and the regulations thereunder) for meeting the minimum funding
requirements for such Plan Year.
3.03 Forfeitures. Any forfeitures arising under the Plan shall be used to
reduce the Company's contribution.
3.04 Return of Company Contributions. A contribution made by the Company
may be returned to the Company if:
(a) the contribution is made by the reason of a mistake of fact,
provided such contribution is returned within one year of the mistaken
payment, or
(b) the contribution is conditioned on its deductibility for Federal
income tax purposes (each contribution shall be deemed to be so conditioned
unless otherwise stated in writing by the Company) and such deduction is
disallowed; provided such contribution is returned within one year of the
disallowance of the deduction for Federal income tax purposes, or
(c) the contribution is made prior to the receipt of a determination
letter of the Internal Revenue Service as to the initial qualification of
the Plan under Section 401(a) of the Code and no favorable determination
letter is received; provided that any contribution made incident to that
initial qualification must be returned to the Company within one year after
the initial qualification is denied, but only if the application for
qualification is made by the time prescribed by law for filing the
Company's return for the taxable year in which the Plan is adopted, or such
later date as the Secretary of the Treasury may prescribe.
The amount of any contribution which may be returned shall be reduced
to reflect its proportionate share of any net investment loss in the Trust
Fund. In the event Subsection (c) applies, the returned contribution may
include any net investment earnings or gains in the Trust Fund.
- 1 -
93
ARTICLE 4
CASH BALANCE CONTRIBUTIONS
AND CREDITS TO ACCOUNTS
4.01 Accounts. A Cash Balance Account shall be established and maintained
for each Participant to which credits shall be made pursuant to the
provisions of this Article 4. The Cash Balance Accounts established and
maintained pursuant to this Article 4 are intended to be only bookkeeping
accounts and neither the maintenance nor the making of credits to such
Accounts shall be construed as an allocation of assets of the Plan to, or a
segregation of such assets in, any such Account, or otherwise as creating a
right in any person to receive specific assets of the Plan. Benefits
provided under the Plan shall be paid from the general assets of the Trust
in the amounts, in the forms and at the times provided under the terms of
the Plan.
4.02 Pay Based Credits. On the last day of each Plan Year, there shall be
credited to the Cash Balance Account of each Participant three percent (3%)
of such Participant's Compensation earned during that Plan Year.
For the Plan Year ending December 31, 1994, Compensation shall only
include that Compensation earned during the period from September 1, 1994
through December 31, 1994.
4.03 Interest Credits. Each Participant's Cash Balance Account shall be
increased in the manner described in Subsection (b) below by an Interest
Credit ("Interest Credit") determined in accordance with Subsection (a)
below:
(a) The Interest Credits for a Plan Year shall, to the nearest .01%,
be the greater of either (i) or (ii) below:
(i) One hundred twenty (120%) percent of the rate on Treasury
Constant Maturities, 1-YEAR, as published in the Federal Reserve
Statistical Release, or its replacement publication, for the first week
ending in January during such year.
(ii) The current annual effective yield on the Guaranteed
Investment Contract (GIC) portfolio under the CURTISS-WRIGHT CORPORATION
SAVINGS AND INVESTMENT PLAN on the first day of the Plan Year.
(b) Until payment of a Participant's benefit begins, his Cash Balance
Account shall be increased at the end of the Plan Year by an amount equal
to the Interest Credits for such year multiplied by the balance of the Cash
Balance Account as of the end of the Plan Year.
4.04 Vesting. The interest of a Participant in his Cash Balance Account
shall be vested in accordance with Article 5 of this Plan.
4.05 Distribution of Cash Balance Account.
(a) A Participant shall be entitled to commence distribution of the
vested portion of his Cash Balance Account upon the earlier of: (i) his
attainment of Normal Retirement Age, (ii) his Early Retirement Date,
(iii) his Disability Retirement Date or (iv) the date he separates from
Service with the Company.
- 1 -
94
(b) A Participant's Cash Balance Account shall be distributable
pursuant to a form of payment permissible under Article 7 as elected by the
Participant.
4.06 Death Benefit.
(a) Subject to the form of distribution requirements of Section 8.01
of the Plan, if a Participant who has a vested Cash Balance Account dies
before commencement of the payment of such vested Cash Balance Account, a
death benefit shall be payable to the Participant's Beneficiary pursuant to
a form of payment permissible under Article 7 of the Plan as elected by the
Beneficiary. If the Participant dies after payment of the Participant's
vested Cash Balance Account has commenced, any death benefit shall be
determined and payable according to the form of payment applicable under
Article 7 of the Plan as elected by the Participant.
(b) Subject to the spousal consent requirements of Section 8.01 of
the Plan, the Participant may, by written designation filed with the
Committee, designate one or more Beneficiaries to receive payment under
this Article and may rescind or change any such designation.
- 2 -
95
ARTICLE 5
VESTING
5.01 Vesting Schedule.
(a) Normal Retirement Benefit. Upon termination of Service prior to
Normal Retirement Date, the interest of a Participant in his Normal
Retirement Benefit shall be vested in accordance with the following
schedule based on the number of Vesting Years of Service of the Participant
on the date of termination of employment:
IF VESTING YEARS OF THE PARTICIPANT'S
SERVICE AS OF THE DATE NONFORFEITABLE
OF TERMINATION EQUAL: PERCENTAGE IS:
---------------------- -----------------
4 or less 0%
5 or more 100%
(b) Cash Balance Account. Upon termination of Service prior to
attaining his Normal Retirement Age, the interest of a Participant in his
Cash Balance Account shall be vested in accordance with the following
schedule based on the number of Vesting Years of Service of the Participant
on the date of his termination of Service:
IF VESTING YEARS OF THE PARTICIPANT'S
SERVICE AS OF THE DATE NONFORFEITABLE
OF TERMINATION EQUAL: PERCENTAGE IS:
---------------------- -----------------
1 20%
2 40%
3 60%
4 80%
5 100%
5.02 Break in Service. There are no Breaks in Service under the terms of
this Plan.
5.03 Forfeitures.
(a) In the case of a termination of a Participant's employment for
any reason, if as of the date of such termination the Participant was not
fully vested in his retirement benefit, the Participant may elect, subject
to the limitations of Articles 4, 6 and 7 of the Plan, to receive a
distribution of the entire vested portion of such retirement benefit and
the nonvested portion will be treated as a forfeiture.
(b) If a Participant receives or is deemed to receive a distribution
pursuant to this Section and the Participant resumes covered employment
under the Plan, he or she shall have the right to restore his or her
Company-derived retirement benefit (including all optional forms of
benefits and subsidies relating to such benefits) to the extent forfeited
upon the repayment to the Plan of the full amount of the distribution plus
interest, compounded annually from the date of distribution at the rate
determined for purposes of Section 411(c)(2)(C) of the Code. Such
repayment must be made before the earlier of five (5) years after the first
date on which the Participant is subsequently reemployed by the Company.
- 1 -
96
If a Participant is deemed to receive a distribution pursuant to this
Section, and the Participant resumes employment covered under this Plan,
upon the reemployment of such Participant, the Company-derived retirement
benefit will be restored to the amount of such retirement benefit on the
date of such deemed distribution.
(c) If the present value of a Participant's vested retirement benefit
derived from Company and Participant contributions exceeds (or at the time
of any prior distribution exceeds) $3,500, and the retirement benefit is
immediately distributable, the Participant and the Participant's Spouse (or
where either the Participant or the Spouse has died, the survivor) must
consent to any distribution of such retirement benefit. The consent of the
Participant and the Participant's Spouse shall be obtained in writing
within the ninety (90) day period ending on the Annuity Starting Date. The
Plan Administrator shall notify the Participant and the Participant's
Spouse of the right to defer any distribution until the Participant's
retirement benefit is no longer immediately distributable. Such
notification shall include a general description of the material features,
and an explanation of the relative values of, the optional forms of benefit
available under the Plan in a manner that would satisfy the notice require-
ments of Section 417(a)(3) of the Code, and shall be provided no less than
thirty (30) days and no more than ninety (90) days prior to the Annuity
Starting Date.
Notwithstanding the foregoing, only the Participant need consent to
the commencement of a distribution in the form of a Qualified Joint and
Survivor Annuity while the retirement benefit is immediately distributable.
Neither the consent of the Participant nor the Participant's Spouse shall
be required to the extent that a distribution is required to satisfy
Section 401(a)(9) or Section 415 of the Code.
A retirement benefit is immediately distributable if any part of the
retirement benefit could be distributed to the Participant (or surviving
Spouse) before the Participant attains (or would have attained if not
deceased) the Normal Retirement Age.
5.04 Prior Vesting Schedule.
(a) Notwithstanding the vesting schedule hereinabove, the vested
percentage of a Participant's retirement benefit shall not be less than the
vested percentage attained as of the Effective Date.
(b) A Participant with at least three (3) Years of Service as of the
Effective Date may elect to have his nonforfeitable percentage computed
under the Prior Plan. Notwithstanding the foregoing, for Plan Years
beginning before December 31, 1988, or with respect to Participants who
fail to complete at least one Hour of Service in a Plan Year beginning
after December 31, 1988, five (5) shall be substituted for three (3) in the
preceding sentence. If a Participant fails to make such election, then
such Participant shall be subject to the new vesting schedule. The
Participant's election period shall commence on the Effective Date of the
amendment and shall end sixty (60) days after the latest of:
- 2 -
97
(i) the adoption date of the amendment,
(ii) the effective date of the amendment, or
(iii) the date the Participant receives written notice of the
amendment from the Company or Plan Administrator.
Except, however, any Employee who was a Participant as of the
Effective Date of this restatement and who completed three (3) Years of
Service shall be subject to the pre-amendment vesting schedule provided
such schedule is more liberal than the new vesting schedule.
Notwithstanding the foregoing, for Plan Years beginning before December 31,
1988, or with respect to Employees who fail to complete at least one Hour
of Service in a Plan Year beginning after December 31, 1988, five (5) shall
be substituted for three (3) in the preceding sentence.
This election hereinabove shall also be applicable when a Top-
Heavy Plan reverts to non Top-Heavy status.
- 3 -
98
ARTICLE 6
AMOUNT AND COMMENCEMENT OF RETIREMENT BENEFIT
6.01 Normal Retirement. A Participant who retires on his Normal
Retirement Date shall be entitled to his Normal Retirement Benefit. The
Participant shall be entitled to receive a Normal Retirement Benefit, the
Actuarial Equivalent of which is equal to the sum of (a) and (b) below:
(a) Service Before September 1, 1994. A Participant's accrued
benefit under the Prior Plan as of August 31, 1994 multiplied by the factor
below:
(i) The numerator shall be the greater of the Partici-
pant's Average Compensation as of August 31, 1994 or the Participant's
Average Compensation at retirement.
(ii) The denominator shall be the Participant's Average
Compensation as of August 31, 1994.
If a Participant elects pursuant to Section 6.07(e) of the Plan
to receive a distribution of his employee contributions to the Plan, the
accrued benefit under the Prior Plan as of August 31, 1994, as adjusted
above, shall be reduced by the Actuarial Equivalent of the amount actually
distributed to the Participant.
(b) Service After August 31, 1994. One and one-half (1 1/2 %)
percent of Average Compensation in excess of Covered Compensation
multiplied by the Participant's total number of Years of Credited Service
(up to a maximum of 35 years) plus one percent of Average Compensation up
to Covered Compensation multiplied by the Participant's total number of
Years of Credited Service (up to a maximum of 35 years).
6.02 Minimum Retirement Benefit. A minimum retirement benefit equal
to the greater of (a) or (b) below shall be provided for "contributing
participants" as such term is defined under the Prior Plan, who attained
age fifty-five (55) with sixty (60) months of contributory Service ending
on August 31, 1994.
(a) The Normal Retirement Benefit under the Plan;
(b) The Participant's Prior Plan benefit calculated pursuant to
Section 6.15.
6.03 Early Retirement. If a Participant's Service terminates on or
after the Participant's Early Retirement Date, the Participant shall be
entitled to receive his Normal Retirement Benefit determined as of the date
on which the Participant terminated Service; provided, however, that in no
event shall the Normal Retirement Benefit of any Participant who continues
to perform Service after the Early Retirement Date be reduced as a result
of such continued Service. Should the Participant elect to receive his
Normal Retirement Benefit prior to the Normal Retirement Age, the
Participant shall be entitled to a retirement benefit that is equal to his
Normal Retirement Benefit multiplied by the applicable Early Retirement
Factor below. The Normal Retirement Benefit shall be payable in one of the
forms provided in Article 7 of the Plan and shall commence on the first day
of the month following the date on which the Paant's Prior Plan benefit
calculated pursuant to Section 6.15.
6.03 Early Retirement. If a Participant's Service terminates on or
after the Participant's Early Retirement Date, the Participant shall be
entitled to receive his Normal Retirement Benefit determined as of the date
on which the Participant terminated Service; provided, however, that in no
event shall the Normal Retirement Benefit of any Participant who continues
to perform Service after the Early Retirement Date be reduced as a result
of such continued Service. Should the Participant elect to receive his
Normal Retirement Benefit prior to the Normal Retirement Age, the
Participant shall be entitled to a retirement benefit that is equal to his
Normal Retirement Benefit multiplied by the applicable Early Retirement
Factor below. The Normal Retirement Benefit shall be payable in one of the
forms provided in Article 7 of the Plan and shall commence on the first day
of the month following the date on which the Participant terminates
Service.
- 1 -
99
Early Retirement Factors (Schedule A):
Age Factor Age Factor
----- -------- ----- --------
64 98% 59 87%
63 96% 58 84%
62 94% 57 81%
61 92% 56 78%
60 90% 55 75%
If the sum of a Participant's Age and Years of Service exceed
eighty (80), then one (1%) percent multiplied by the said sum in excess of
eighty (80) shall be added to the applicable Early Retirement Factor. The
Early Retirement Factor, as adjusted, shall not exceed one hundred (100%)
percent.
6.04 Deferred Retirement. If a Participant should continue Service
beyond his Normal Retirement Age, the Participant shall continue his
accrual of benefits in accordance with Section 6.01 of the Plan.
6.05 Disability Retirement.
(a) If, prior to his Normal Retirement Date or other
termination of employment with the Company, a Participant who shall have
completed at least five (5) Years of Credited Service retires by reason of
becoming totally and permanently disabled in a manner which would qualify
him to receive disability benefits under the Social Security Act
("Disability Retirement"), he shall have a right to his Normal Retirement
Benefit as of his Disability Retirement Date.
(b) Disability Retirement Benefit payments to a Participant
shall commence on the first to occur of (i) his Normal Retirement Date;
(ii) the first day of the month following the date payment of the
disability benefits under the Company's Long Term Disability Plan are
terminated; or (iii) such other earlier date as shall be determined by the
Committee.
(c) If the Participant is married on the date his Disability
Retirement Benefit Commences, his benefits shall be paid in the form of a
Joint and Survivor Annuity unless the necessary election and consent were
made for an alternative form of benefit payment under the Plan.
(d) The Committee may require that a Participant receiving a
Disability Retirement Benefit periodically submit proof of his continued
disability.
(e) A Participant who elects Disability Retirement shall
continue to receive credit for Years of Credited Service and Vesting Years
of Service until his Normal Retirement Date and shall be deemed to receive
Compensation in each such year in an amount equal to his Compensation on
the date on which payment of his Long Term Disability benefits commenced.
6.06 Termination of Service After August 31, 1994. A Participant who
separates from Service shall be entitled to receive a distribution equal to
the Actuarial Equivalent of his Normal Retirement Benefit. In the event of
such an election, the vested retirement benefit shall commence as soon as
administratively practicable following the Participant's separation from
Service. The vested retirement benefit shall be payable in one of the
forms provided in Article 7 of the Plan.
- 2 -
100
6.07 Employee Contributions.
(a) Effective September 1, 1994, no contribution shall be
required of any Participant as a condition of his participation in the
Plan. The provisions of the Prior Plan shall govern mandated employee
contributions required before September 1, 1994.
(b) For periods before September 1, 1994, interest on the
employee contributions shall be calculated pursuant to the terms of the
Prior Plan.
(c) For periods on or after September 1, 1994, interest on the
employee contributions shall be calculated using the Code Section 417
interest rates.
(d) A Participant may request a distribution of his employee
contributions plus accrued interest thereon at any time, in writing, on a
form or forms prescribed by the Committee. Such distribution will be in a
lump sum cash payment equal to the aggregate of his employee contributions
plus accrued interest thereon. Such a distribution shall reduce the
Participant's retirement benefit under Section 6.01(a) of the Plan by the
Actuarial Equivalent of the amount actually distributed to the Participant.
6.08 Leave of Absence.
(a) If a Participant is on an approved Leave of Absence, the
Participant's retirement benefit shall be equal to the Participant's
retirement benefit determined as of the beginning of such Leave of Absence.
If the Participant returns to Service immediately following such approved
Leave of Absence, the Participant's retirement benefit will be determined
by including the period during such Leave of Absence in the Participant's
Years of Service.
(b) The provisions of this Section 6.08, including the
conditions for granting a Leave of Absence, shall be applied on a uniform
and nondiscriminatory basis for Participants under all qualified plans
maintained by the Company.
6.09 Deferred Commencement of Benefits.
(a) Subject to Section 7.03 of the Plan, a Participant may
elect, in the form and manner prescribed by the Committee, to defer payment
of his vested Normal Retirement Benefit to a date specified by the
Participant.
(b) If payment of the Participant's vested Normal Retire-ment
Benefit commences after the Participant's Normal Retirement Date, the
Participant shall be entitled to a retirement benefit that is equal to his
Normal Retirement Benefit multiplied by the applicable Deferred Retirement
Factor below.
Deferred Retirement Factors:
------------------------------------------------------
Age Factor Age Factor
----- -------- ----- --------
66 1.1049 71 1.9071
67 1.2244 72 2.1505
68 1.3608 73 2.4355
69 1.5175 74 2.7710
70 1.6980 75 3.1687
- 3 -
101
6.10 Deductions for Disability Benefits. In determining benefits
payable to any Participant, a deduction shall be made equivalent to all or
any part of the following benefits payable to such pensioner by reason of
any law of the United States, or any political subdivision thereof, which
has been or shall be enacted, provided that such deduction shall be to the
extent that such benefits have been provided by premiums, taxes or other
payments paid by or at the expense of the Company:
(a) Disability benefits, other than a Primary Insurance Amount
payable under the Federal Social Security Act as now in effect or as
hereafter amended.
(b) Workers' Compensation (including hearing, pulmonary,
ocular, and other occupational diseases and accident claims but excluding
statutory payments for loss of any physical or bodily members such as leg,
arm or finger) for Workers' Compensation awards granted subsequent to March
1, 1978, for Wood-Ridge and Nuclear facilities; January 9, 1978 for
Curtiss-Wright Flight Systems, Inc.; May 5, 1978 for Target Rock Corp.;
July 28, 1987 for Buffalo facility; and March 1, 1978 for the Corporate
Office.
6.11 Mandatory Commencement of Benefits. Unless a Participant elects
otherwise, payment of the Participant's vested retirement benefit must
commence not later than the sixtieth (60th) day after the close of the Plan
Year in which occurs the latest of:
(a) the Participant attains the earlier of age sixty-five (65)
and the Normal Retirement Age,
(b) the date the Participant's Service terminates or
(c) the tenth (10th) anniversary of the year in which the
Participant commenced Plan participation.
6.12 Maximum Retirement Benefit.
(a) The retirement benefit payable from the Plan, together with
the Annual Benefits payable to a Participant under all other plans of the
Controlled Group that are defined benefit plans under Section 414(j) of the
Code, shall not in any Limitation Year exceed the lesser of either (i) or
(ii) hereinbelow:
(i) Defined Benefit Dollar Limitation: $90,000.
Effective on January 1, 1988, and each January thereafter, the $90,000
limitation above will be automatically adjusted by multiplying such limit
by the cost-of-living adjustment factor prescribed by the Secretary of the
Treasury under Section 415(d) of the Code in such manner as the Secretary
shall prescribe. The new limitation will apply to Limitation Years ending
within the calendar year of the date of the adjustment.
(ii) One hundred (100%) percent of the average Compensation
of a Participant for the three (3) consecutive calendar years for which
such average is highest.
The limitation in this paragraph is deemed satisfied if the
Annual Benefit payable to a Participant is not more than $1,000 multiplied
by the Participant's number of Years of Service or parts thereof (not to
exceed ten (10)) with the Company, and the Company has not at any time
maintained a defined contribution plan, a welfare benefit plan as defined
in Section 419(e) of the Code, or an individual medical account as defined
in Section 415(l)(2) of the Code in which such Participant participated.
- 4 -
102
(b) Annual Benefit shall mean a retirement benefit under the
Plan which is payable annually in the form of a straight Life Annuity.
Except as provided below, a benefit payable in a form other than a straight
Life Annuity must be adjusted to an actuarially equivalent straight Life
Annuity before applying the limitations of this Article. The interest rate
used under this subparagraph (b) will be five (5%) percent. The Annual
Benefit does not include any benefits attributable to voluntary contribu-
tions, rollover contributions, or the assets transferred from a qualified
plan that was not maintained by the Company. No actuarial adjustment to
the benefit is required for:
(i) the value of a Qualified Joint and Survivor Annuity,
(ii) the value of benefits that are not directly related to
retirement benefits (such as the qualified disability benefit, pre-
retirement death benefits, and post-retirement medical benefits), and
(iii) the value of post-retirement cost-of-living increases
made in accordance with Section 415(d) of the Code and Section 1.415-
3(c)(2)(iii) of the Treasury Regulations.
Projected Annual Benefit means the Annual Benefit to which a
Participant would be entitled under the terms of the Plan assuming:
(i) the Participant will continue employment until Normal
Retirement Age under the Plan (or current age, if later), and
(ii) the Participant's Compensation for the current
Limitation Year and all other relevant factors used to determine benefits
under the Plan will remain constant for all future Limitation Years.
(c) Compensation shall mean, for purposes of this Section,
wages, salaries, and fees for professional services, and other amounts
received (without regard to whether or not an amount is paid in cash) for
personal services actually rendered in the course of employment with the
Company maintaining the Plan (including, but not limited to, commissions
paid salesmen, compensation for services on the basis of a percentage of
profits, commissions on insurance premiums, tips, bonuses, fringe benefits,
reimbursements and expense allowances), and excluding the following:
(i) Company contributions to a plan of deferred
compensation which are not included in the Employee's gross income for the
taxable year in which contributed, or Company contributions under a
simplified employee pension plan to the extent such contributions are
deductible by the Employee, or any distributions from a plan of deferred
compensation;
(ii) Amounts realized from the exercise of a nonqualified
stock option, or when restricted stock (or property) held by the Employee
either becomes freely transferable or is no longer subject to a substantial
risk of forfeiture;
(iii) Amounts realized from the sale, exchange or other
disposition of stock acquired under a qualified stock option; and
(iv) Other amounts which receive special tax benefits, or
contributions made by the Company (whether or not under a salary reduction
agreement) towards the purchase of an annuity described in Section 403(b)
of the Code (whether or not the amounts are actually excludable from the
gross income of the Employee).
- 5 -
103
For any self-employed individual, compensation will mean earned
income.
For Limitation Years beginning after December 31, 1991 for
purposes of applying the limitations of this Article 6, compensation for a
Limitation Year is the compensation actually paid or includable in gross
income during such Limitation Year.
(d) If the Participant has less than ten (10) Years of Credited
Service with the Company, the Defined Benefit Dollar Limitation is reduced
by one-tenth (1/10) for each year of participation (or part thereof) less
than ten (10). To the extent provided in regulations or in other guidance
issued by the Internal Revenue Service, the preceding sentence shall be
applied separately with respect to each change in the benefit structure of
the Plan.
If the Participant has less than ten (10) Years of Service with
the Company, the Compensation limitation is reduced by one-tenth (1/10th)
for each Year of Service (or part thereof) less than ten (10). The
adjustments of this Section (d) shall be applied in the denominator of the
defined benefit fraction based upon Years of Service. Years of Service
shall include future years occurring before the Participant's Normal
Retirement Age. Such future years shall include the year which contains
the date the Participant reaches Normal Retirement Age, only if it can be
reasonably anticipated that the Participant will receive a Year of Service
for such year.
(e) If the Annual Benefit of the Participant commences before
the Participant's social security retirement age, but on or after age
sixty-two (62), the Defined Benefit Dollar Limitation shall be determined
as follows:
(i) If a Participant's social security retirement age is
sixty-five (65), the dollar limitation for benefits commencing on or after
age sixty-two (62) is determined by reducing the Defined Benefit Dollar
Limitation by five-ninths (5/9) of one (1%) percent for each month by which
benefits commence before the month in which the Participant attains age
sixty-five (65).
(ii) If a Participant's social security retirement age is
greater than sixty-five (65), the dollar limitation for benefits commencing
on or after age sixty-two (62) is determined by reducing the Defined
Benefit Dollar Limitation by five-ninths (5/9) of one (1%) percent for each
of the first thirty-six (36) months and five-twelfths (5/12) of one (1%)
percent for each of the additional months (up to twenty-four (24) months)
by which benefits commence before the month of the Participant's social
security retirement age.
(f) If the Annual Benefit of a Participant commences prior to
age sixty-two (62), the Defined Benefit Dollar Limitation shall be the
actuarial equivalent of an annual benefit beginning at age sixty-two (62),
as determined in Section (e) above, reduced for each month by which
benefits commence before the month in which the Participant attains age
sixty-two (62). The interest rate used under this subparagraph (f) will be
five (5%) percent. The mortality table used under this subparagraph (f)
will be the GAM 83 Male and Female Blended 80% Male and 20% Female. Any
decrease in the Defined Benefit Dollar Limitation determined in accordance
with this Section (f) shall not reflect the mortality decrement to the
extent that benefits will not be forfeited upon the death of the Partici-
pant.
- 6 -
104
(g) If the Annual Benefit of a Participant commences after the
Participant's social security retirement age, the Defined Benefit Dollar
Limitation shall be increased so that it is the actuarial equivalent of an
annual benefit of such dollar limitation beginning at the Participant's
social security retirement age. The interest rate used under this
subparagraph (g) will be five (5%) percent. The mortality table used under
this subparagraph (g) will be the GAM 83 Male and Female Blended 80% Male
and 20% Female.
(h) If the benefit limitations of this Section 6.12 are
exceeded in any Plan Year solely because the Plan is aggregated with one or
more other defined benefit plans of any member of the Controlled Group, the
amount of any benefit that would otherwise be accrued under such other
plans shall be reduced so that (to the extent possible) such limitations
are not exceeded before any adjustment is required under this Plan.
(i) In the case of an individual who was a Participant in one
or more defined benefit plans of the Company and/or any other member of the
Controlled Group on or before January 1, 1983, the maximum benefit for such
Participant under this Section 6.12 shall not be less than the current
accrued benefit under such plan or plans at the close of the last
Limitation Year beginning before January 1, 1983 if such plan or plans met
the requirements of Section 415 of the Code, as in effect on July 1, 1982,
for all years.
(j) In the case of an individual who was a Participant in one
or more defined benefit plans of the Company and/or any other member of the
Controlled Group on or before January 1, 1987, the maximum benefit for such
Participant under this Section 6.12 shall not be less than the current
accrued benefit under such plan or plans at the close of the last
Limitation Year beginning before January 1, 1987 if such plan or plans met
the requirements of Section 415 of the Code, as in effect on May 6, 1986,
for all years.
(k) If a Participant also participates, or previously
participated, in one or more defined contribution plans (as defined in
Section 414(i) of the Code), or a welfare benefit fund, as defined in
Section 419(e) of the Code maintained by any member of the Controlled
Group, or an individual medical account, as defined in Section 415(l)(2) of
the Code, which provides an annual addition as defined in Code Section
415(c), the sum of the following fractions shall not exceed 1.0 as of the
end of any Limitation Year.
(i) Defined Contribution Fraction: A fraction, the
numerator of which is the sum of the annual additions to the Participant's
account under all the defined contribution plans (whether or not
terminated) maintained by the Company for the current and all prior
Limitation Years (including the annual additions attributable to the
Participant's voluntary contributions to this and all other defined benefit
plans (whether or not terminated) maintained by the Company, and the annual
additions attributable to all welfare benefit funds, as defined in Section
419(e) of the Code, or individual medical accounts, as defined in Section
415(l)(2) of the Code, maintained by the Company, and the denominator of
which is the sum of the maximum aggregate amounts for the current and all
prior Limitation Years of Service with the Company (regardless of whether a
defined contribution plan was maintained by the Company).
The maximum aggregate amount in any Limitation Year is the
lesser of one hundred twenty-five (125%) percent of the dollar limitation
determined under Sections 415(b) and (d) of the Code in effect under
Section 415(c)(1)(A) of the Code or thirty-five (35%) percent of the
Participant's Compensation for such year.
- 7 -
105
If the Employee was a Participant as of the first day of the
first Limitation Year beginning after December 31, 1986, in one or more
defined contribution plans maintained by the Company which were in
existence on May 6, 1986, the numerator of this fraction will be adjusted
if the sum of this fraction and the defined benefit fraction would
otherwise exceed 1.0 under the terms of this Plan. Under the adjustment,
an amount equal to the product of (1) the excess of the sum of the
fractions over 1.0 times (2) the denominator of this fraction, will be
permanently subtracted from the numerator of this fraction. The adjustment
is calculated using the fractions as they would be computed as of the end
of the last Limitation Year beginning before January 1, 1987, and
disregarding any changes in the terms and conditions of the plans made
after May 6, 1986, but using the Section 415 limitation applicable to the
first Limitation Year beginning on or after January 1, 1987.
The annual addition for any Limitation Year beginning before
January 1, 1987, shall not be recomputed to treat all voluntary
contributions as annual additions.
(ii) Defined Benefit Fraction: A fraction, the numerator
of which is the sum of the Participant's Projected Annual Benefits under
all the defined benefit plans (whether or not terminated) maintained by the
Company, and the denominator of which is the lesser of one hundred twenty-
five (125%) percent of the dollar limitation determined for the Limitation
Year under Sections 415(b) and (d) of the Code or one hundred forty (140%)
percent of the highest average Compensation, including any adjustments
under Section 415(b) of the Code.
Notwithstanding the above, if the Participant was a participant
as of the first Limitation Year beginning after December 31, 1986, in one
or more defined benefit plans maintained by the Company which were in
existence on May 6, 1986, the denominator of this fraction will not be less
than one hundred twenty-five (125%) percent of the sum of the Annual
Benefits under such plans which the Participant had accrued as of the close
of the last Limitation Year beginning before January 1, 1987, disregarding
any changes in the terms and conditions of the plans after May 5, 1986.
The preceding sentence applies only if the defined benefit plans
individually and in the aggregate satisfied the requirements of Section 415
of the Code for all Limitation Years beginning before January 1, 1987.
(l) The Committee may elect to compute the Defined Contribution
Fraction for all Participants for all Limitation Years ending before
January 1, 1983 by using the "transition fraction" (as defined in Section
415(e) of the Code). In the event the limitation imposed by paragraph (a)
of this Section is exceeded as of the last day of the last Limitation Year
beginning before January 1, 1983, with respect to a Participant, but the
limitation imposed by such paragraph (a) was not exceeded with respect to
the Participant in any prior Limitation Years, then the numerator of the
Participant's Defined Contribution Fraction shall be reduced in accordance
with Treasury Regulations as necessary so that the sum of the Defined
Benefit Fraction and the Defined Contribution Fraction does not exceed 1.0
as of the end of such Limitation Year.
(m) The "125%" applied in paragraph (k)(i) of this Section 6.12
shall be reduced to "100%" for any Limitation Year in which either:
(i) the Plan is included in an "Aggregation Group" (as
defined in Section 14.02) which is "Top Heavy" (as defined in Section
14.02) and the Plan or any other plan within such "Aggregation Group" fails
to provide the minimum benefit prescribed by Section 416(h) of the Code and
the regulations thereunder; or
- 8 -
106
(ii) the Plan is included in an "Aggregation Group" which
is "Top Heavy" if "90%" were substituted for "60%" in Section 14.02 of the
Plan.
(n) If the limitations of this Section 6.12 are exceeded in any
Limitation Year because the aggregation of the Plan with one or more
defined contribution plans produces a fraction that exceeds 1.0, the
retirement benefit to which the Participant would otherwise be entitled
under the Plan shall be reduced so that such fraction does not exceed 1.0.
6.13 Applicable Employer. For purposes of this Article 6, Employer
shall mean the Employer that sponsors this Plan, and all members of a
controlled group of corporations (as defined in Code Section 414(b) as
modified by Code Section 415(h)), all commonly controlled trades or
business (as defined in Code Section 414(c) as modified by Code Section
415(h) of the Code), or Affiliated Service Groups (as defined in Code
Section 414(m) of the Code) of which the sponsoring Employer is a part, and
any other entity required to be aggregated with the Company pursuant to
regulations under Section 414(o) of the Code.
6.14 Incorporation by Reference. Notwithstanding anything
hereinabove to the contrary, the limitations, adjustments and other
requirements prescribed in this Article shall at all times comply with the
provisions of Section 415 of the Code and the regulations thereunder, the
terms of which are specifically incorporated herein by reference.
6.15 Prior Plan Benefit For Vested Employees Terminated Prior To
September 1, 1994 And Current Employees Who Attained Age Fifty-Five (55)
With Sixty (60) Continuous Months Of Contributory Active Service Ending On
August 31, 1994.
(a) Normal Retirement Benefit. A Participant who retires on
his Normal Retirement Date shall be entitled to his Normal Retirement
Benefit calculated as of the date he retires. The Normal Retirement
Benefit of a Participant shall be an annual annuity benefit (payable
monthly) equal to the sum of the following:
(i) A Past Service Benefit if he shall have become an
active Participant as of May 1, 1953, shall have been a continuous
Participant (whether active or suspended) during the period of his
employment on and after May 1, 1953, and shall have made contributions
while an active Participant during such period;
(ii) A Future Service Benefit if he shall have made
contributions while an active Participant;
(iii) A Supplemental Benefit if he shall have made
contributions while an active Participant;
(iv) A Pension Equivalent Benefit; and
(v) Minus the value of contributions that the Participant
would have made from September 1, 1994, if permitted, to the Participant's
retirement date.
(A) The "Past Service Benefit" of a Participant
eligible therefor shall be equal to three-quarters percent (3/4 %) of his
annual earnings on May 1, 1953, multiplied by the number of his Years of
Credited Service prior to May 1, 1953.
- 9 -
107
(B) The "Future Service Benefit" of a Participant
eligible therefor shall be one percent (1%) of his annual earnings for each
year of active participation during which he shall have made contributions
under the Plan.
(C) The "Supplemental Benefit" of a Participant
eligible therefor shall be the benefit calculated under either subparagraph
(1) or (2) below, whichever shall be applicable:
(1) If the Participant shall have been a
continuous Participant (whether active or suspended) for the period from
his eligibility date to his Normal Retirement Date and shall have made
contributions at all times while an active Participant during such period,
two percent (2%) of his final average earnings in excess of $3,600 as
determined below, multiplied by the sum of his Years (not in excess of
fifteen (15) years) of Credited Service. For purposes of the preceding
sentence, "final average annual earnings in excess of $3,600" means (A) for
an Employee with five (5) or more years of active participation, the
average of the excess of his annual earnings over $3,600 for the five (5)
consecutive years of his active participation during his final years of
active participation, but not in excess of ten (10), which produce the
highest such average, or (B) for an Employee with less than five (5) years
of active participation, the average of his annual earnings in excess of
$3,600 actually paid to him for the period of his service, not in excess of
five (5) years, ending with his last year of active participation.
(2) If the Participant shall not have been a
continuous Participant (whether active or suspended) for the period from
his eligibility date to his Normal Retirement Date, or shall not have made
contributions at all times while an active Participant during such period,
an amount calculated under subparagraph (1) above, as if the Participant
had, in fact, been a continuous Participant for such period and made
contributions at all times while an active Participant therein, multiplied
by a fraction, the numerator of which shall be the sum of his Years of
Credited Service (not limited to fifteen (15) years) on the basis of which
the Participant shall actually accrue a Past and/or Future Service Benefit
under the Plan, and the denominator of which shall be the sum of his Years
of Service (whether or not regarded as Credited Service for purposes of the
Plan and not limited to fifteen (15) years) on the basis of which the
Participant would have been entitled to accrue a Past and/or Future Service
Benefit under the Plan if he had, in fact, been a continuous Participant
for such period and made contributions while an active Participant therein.
(D) The "Pension Equivalent Benefit" of a Participant
eligible therefor shall be the monthly pension benefit in accordance with
Schedule B attached hereto; provided, however, that the portion, if any, of
such Pension Equivalent Benefit which shall have been based upon Years of
Credited Service for which the Participant also is entitled to Past and/or
Future Service Benefits under this Section 6.15 shall be reduced by the
amount of such Past and/or Future Service Benefits.
(b) Death Benefit. In the event an inactive Participant shall
die before retirement, a death benefit shall be payable to his beneficiary
equal to the aggregate of his contributions plus interest and any
applicable annuity.
- 10 -
108
(c) Severance of Employment Benefit.
(i) After Vesting Date. If the employment of a Par-
ticipant who has made contributions while an active Participant shall be
severed after he shall have completed five (5) Years of Credited Service,
and before he has reached his Early Retirement Date, he shall be entitled
to a Severance of Employment Benefit which shall be an annual annuity
benefit commencing as of the first of the month next following his sixty-
fifth (65th) birthday, which shall be equal to his Normal Retirement
Benefit based upon his Years of Credited Service and years of active
participation on the date of his severance of employment. (In the
calculation of the Supplemental Benefit of a Participant who severs his
employment under this subparagraph (c)(i), the denominator of the fraction
referred to in subparagraph (a)(iv)(C)(2) of this Section 6.15 shall
include Years of Service the Participant would have had at his Normal
Retirement Date if he had remained in the employ of the Company until such
date.) Such Participant may elect (by filing a written request therefor
with the Committee on such form and on such terms and conditions as the
Committee may prescribe) to receive an annual annuity benefit commencing as
of the first of any month following his fifty-fifth (55th) birthday, in
which event such annual annuity benefit shall be the actuarial equivalent
benefit calculated under the preceding sentences of this subparagraph
(c)(i) in accordance with Schedule C attached hereto. The first payment of
a benefit under this subparagraph (i) will commence the first of the month
next following receipt by the Committee of all completed necessary forms
and documentation. On or after January 1, 1976, one (1) Year of Service
toward eligibility for a vested benefit will be credited for any
Participant who works at least one thousand (1,000) hours in any calendar
year.
In lieu of the foregoing annuity benefits, the Participant
may elect (by filing a written request therefor with the Committee on such
form and on such terms and conditions as the Committee may prescribe), at
any time after the date of his severance of employment and prior to the
commencement of said annuity benefit, to receive in a lump sum cash payment
the aggregate of his contributions plus interest and a deferred pension
benefit equal to the benefit as provided in Schedule D attached hereto paid
for solely through Company Contributions.
(ii) Prior to Vesting Date. If the employment of a
Participant who has made contributions while an active Participant shall be
severed prior to satisfying the applicable age and service conditions
prescribed in subparagraph (i) of this paragraph (d), he shall be entitled,
without request therefor, to a Severance of Employment Benefit equal to the
aggregate of his contributions plus interest.
(iii) Deferred Pension Benefit. If the employment of an
active Participant was severed after his vested Retirement Benefit Date but
prior to September 1, 1994, and he is not entitled to a Normal, Early or
Disability Retirement Benefit, he shall be entitled to a Deferred Benefit
under this Plan in accordance with Schedule D attached hereto.
(d) Optional Survivor Benefit. The Participant's fifty-five
percent (55%) optional survivor benefit and/or contingent annuitant benefit
shall be reduced by a percentage as set forth below for each full month or
fraction thereof in effect for such Participant.
- 11 -
109
The appropriate percentages are:
For Coverage While The
Participant's Age Is Monthly Percentage
----------------------- ------------------
under 35 .01%
35 - 45 .02%
45 - 54 and 11 months .04%
(e) Optional Annuity Benefits for Deferred Vested Participant.
A Participant may elect (by filing a written request therefor with the
Committee on such form and on such terms and conditions as the Committee
may prescribe).
For an Employee receiving a benefit with a survivor benefit
adjustment, the reduced amount of his monthly benefit shall be equal to an
amount determined by multiplying the monthly benefit otherwise payable to
the Employee by ninety percent (90%) if the Employee's age and his
designated Spouse's age are the same; or, if such ages are not the same,
such percentage shall be increased by one-half of one percent (1/2%), up to a
maximum of one hundred percent (100%) for each year that the designated
spouse's age exceeds the Employee's age and shall be decreased by one-half
of one percent (1/2%) for each year that the designated spouse's age is less
than the Employee's age, and his or her surviving spouse will receive
fifty-five percent (55%) of such annuity benefit.
A "Contingent Annuity Option" of seventy-five percent (75%) or
one hundred percent (100%) with respect to the total of the Supplemental
Benefit amount included within his annuity benefit, under which an annuity,
on such terms as the Committee may prescribe, shall be payable for the
Participant's life and continue after his death, in the same or lesser
amount, to and for the life of a selected contingent annuitant; provided,
however, that if such selected contingent annuitant is other than the
Participant's spouse or physically or mentally disabled child, the amount
payable under the option shall be adjusted, if necessary, so that the
reduction on account of the option in the Supplemental Benefit otherwise
payable to the Participant does not exceed forty percent (40%). Such
annuity shall be the actuarial equivalent of the aforesaid Supplemental
Benefit amount. Election of a seventy-five (75%) percent or one hundred
percent (100%) option shall ordinarily be made at least one year prior to
the commencement date of the Participant's annuity benefit which includes a
Supplemental Benefit amount in accordance with Schedule E attached hereto;
otherwise, the Committee may require evidence satisfactory to it of the
Participant's good health.
6.16 Definitions. For purposes of determining a Participant's
minimum benefit in accordance with Section 6.15, the following definitions
shall apply.
(a) Credited Service. The term "credited service" shall have
the following meanings:
(i) Service Prior to May 31, 1953. Only Employees who
become contributing active Participants as of May 31, 1953 shall be
entitled to "credited service" under this subparagraph (a) for any periods
prior to May 31, 1953. Such "credited service" shall mean completed years
and calendar months of employment prior to May 31, 1953, including the
following periods:
- 12 -
110
(A) the period of employment of an Employee with the
Company (or with a member of the Controlled Group) following his most
recent date of hire preceding May 31, 1953 and prior to his sixty-eighth
(68th) birthday;
(B) the period of employment of an Employee with the
Company (or with a member of the Controlled Group) preceding his most
recent date of hire and prior to his sixty-eighth (68th) birthday;
provided, however, that the period of his employment preceding a break in
employment (except a break in employment of any duration during the
interval commencing August 1, 1945, and ending on or before December 31,
1949) of two (2) or more years shall not be taken into account;
(C) any periods of approved Leave of Absence or mili-
tary leave during the period(s) defined in paragraphs (A) and/or (B) above.
(ii) Service Commencing on or After May 31, 1953. "Credit-
ed service" after May 31, 1953 shall mean completed years and calendar
months of employment commencing on or after May 31, 1953 and shall include
the following periods:
(A) the periods of employment of an Employee with the
Company (or with a member of the Controlled Group) while eligible to
participate under the Plan following his most recent date of hire and prior
to the earlier of his retirement;
(B) any periods of leave of absence approved by the
Company in writing, or military leave during the period defined in
subparagraphs (i) and (ii) above.
(iii) Pension Plan Equivalent Service. On and after May 1,
1966, "credited service" of an Employee eligible to participate in this
Plan shall include Service which would be creditable under the Curtiss-
Wright Pension Plan for any period(s) of his employment not included as
Credited Service under subparagraphs (i) and (ii) above.
(b) Years of Participation. The term "years of participation"
shall be Years of Credited Service while a continuous Participant; "years
of active participation" shall mean Years of Credited Service while an
active Participant, whether or not interrupted by a period or periods of
suspended participation; and "years of contributory active participation"
shall mean Years of Credited Service while (a) an active Participant prior
to May 1, 1966 and (b) a contributing active Participant after May 1, 1966,
whether or not interrupted by a period or periods of suspended
participation.
(c) "Annual Earnings" for periods prior to September 1, 1994
shall mean:
(i) for each calendar month prior to July 1, 1970, one-
twelfth (1/12) of his basic salary (on an annual basis) in effect at the
beginning of each Plan Year; and
(ii) for each calendar month after June 30, 1970, one-
twelfth (1/12) of the sum of his basic salary (on an annual basis) in
effect at the beginning of each Plan Year, plus any cash payments he
received in the prior Plan Year under the Company's incentive compensation
plan;
- 13 -
111
(d) "Interest" for deferred vested prior to September 1, 1994
means interest calculated from the first day of the Plan Year next
following the Participant's contribution, compounded annually to the first
of any month in which (a) there shall occur an event under the Plan calling
for the distribution of an amount plus interest or (b) the Participant's
retirement, whichever first occurs. Interest to May 1, 1966 shall be
calculated at the rate of two (2%) percent compounded annually; interest
from May 1, 1966 to January 1, 1971 shall be calculated at the rate of
three and one-half (3 1/2%) percent compounded annually; and interest from
January 1, 1971 to December 31, 1975 shall be calculated at the rate of
four and one-half (4 1/2%) percent compounded annually. Interest from January
1, 1976 to December 31, 1987 shall be calculated at the rate of five (5%)
percent compounded annually; and interest from January 1, 1988 at one
hundred twenty (120%) percent of the Federal mid-term rate as at the
beginning of the Plan Year compounded annually.
- 14 -
112
ARTICLE 7
FORM OF BENEFIT PAYMENT
7.01 Normal Form of Payment. Unless a Participant has elected
pursuant to Section 7.02 of the Plan that his vested Normal Retirement
Benefit be paid in another form or to a Beneficiary other than his
surviving Spouse, a Participant's vested Normal Retirement Benefit shall be
paid in whichever of the following forms is applicable:
(a) If the Participant does not have a Spouse at the time
payment of his vested Normal Retirement Benefit commences, the vested
Normal Retirement Benefit shall be payable in the form of a Life Annuity.
(b) If the Participant has a Spouse at the time payment of the
vested Normal Retirement Benefit commences, and the Participant terminates
Service after attaining the earlier of his Normal Retirement Age or his
Early Retirement Date, the Participant's vested Normal Retirement Benefit
shall be payable in the form of a Qualified Joint and Survivor Annuity
which is the Actuarial Equivalent of the vested Normal Retirement Benefit
payable to the Participant as a Life Annuity.
7.02 Optional Forms of Payment For All Benefits.
(a) In lieu of the form of payment provided in Section 7.01 of
the Plan, a Participant may elect in the manner prescribed by the Committee
and during the election period described in Subsection (c) of this Section
7.02, a form of benefit payment provided under Section 7.02(b); provided,
however, that any election, made by a Participant who has a Spouse, not to
have payment of the Participant's benefits made in the form of a Qualified
Joint and Survivor Annuity under Subsection of Section 7.01 of the Plan, as
applicable, shall not be effective unless:
(i) The Spouse of the Participant consents in writing to
the election; the election designates a specific Beneficiary, including any
class of beneficiaries or any contingent beneficiaries, which may not be
changed without spousal consent (or the Spouse expressly permits
designations by the Participant without any further spousal consent); and
the Spouse's consent acknowledges the effect of such election and is
witnessed by a member of the Committee or a Notary Public. Additionally, a
Participant's waiver of the Qualified Joint and Survivor Annuity shall not
be effective unless the election designates a form of benefit payment which
may not be changed without spousal consent (or the Spouse expressly permits
designations by the Participant without any further spousal consent).
(ii) If it is established to the satisfaction of the
Committee that the required consent may not be obtained because there is no
Spouse, because the Spouse cannot be located, or because of such other
circumstances as provided in Treasury regulations under the applicable
provisions of the Code, a waiver will be deemed a qualified election.
Any consent by a Spouse (or establishment that the consent of a
Spouse may not be obtained) under this Section 7.02(a) of the Plan shall be
effective only with respect to such Spouse. At any time during the
election period described in Section 7.02(c) of the Plan, a Participant
may, without the consent of the Participant's Spouse, revoke the election
pursuant to this Section 7.02(a) of the Plan to have payment of the
retirement benefit made in a form other than a Qualified Joint and Survivor
Annuity.
- 1 -
113
(b) In the event an election is validly made and in effect
pursuant to Section 7.02(a) of the Plan not to receive payment of benefits
in the normal form provided in Section 7.01, then the benefit payable to a
Participant shall be the Actuarial Equivalent of the retirement benefit
otherwise payable to the Participant in the form of a Life Annuity. A
Participant may, in the form and manner prescribed by the Committee, elect
any one of the following optional forms of payment:
(i) a Life Annuity payable monthly to the Participant;
(ii) a joint and survivor annuity under which one hundred
(100%) percent, seventy-five (75%) percent, sixty-six and two thirds
(662/3%) percent or fifty (50%) percent of the amount payable to the
Participant for his life is continued thereafter for the life of a
contingent annuitant designated by him, for a period not in excess of the
joint life expectancies of the Participant and the Participant's
Beneficiary;
(iii) a lump sum payment; or
(iv) one-half (1/2) as a lump sum payment and one-half
(1/2) as an annuity.
(c) Any election not to receive payment of benefits under the
Plan in the normal form provided in Section 7.01 of the Plan shall be made
at any time during the election period in writing. Any such election may
be revoked in writing, and a new election made, at any time during the
election period. The election period shall be the ninety (90) day period
ending on the Annuity Starting Date.
7.03 Limitation on Optional Forms of Payment.
(a) Notwithstanding any other Plan provision, payment of the
Participant's entire interest in this Plan:
(i) shall be made to the Participant no later than the
Required Beginning Date (as defined in Section 7.03(b) of the Plan), or
(ii) shall commence not later than the Required Beginning
Date (as defined in Section 7.03(b) of the Plan) and be distributable (in
accordance with Treasury regulations under Section 401(a)(9) of the Code)
over one of the following periods:
(A) the life of the Participant,
(B) the joint and survivor lives of the Participant
and the Participant's designated Beneficiary,
(C) a period certain not extending beyond the life
expectancy of the Participant, or
(D) a period certain not extending beyond the joint
and survivor life expectancies of the Participant and the Participant's
designated Beneficiary.
For purposes of this Section 7.03, the life expectancy of the
Participant and the Participant's Spouse, if any, may be redetermined
(other than in the case of a life annuity), but no more frequently than
annually.
- 2 -
114
(b) For purposes of this Section, the Required Beginning Date
means the April 1 of the calendar year following the calendar year in which
the Participant attains age seventy and one-half (70 1/2).
(c) Notwithstanding any other Plan provision, all distributions
required under this Article shall be determined and made in accordance with
the Treasury Regulations under Section 401(a)(9) of the Code, including the
minimum distribution incidental benefit requirement of Section 1.401(a)(9)-2
of the Treasury Regulations.
7.04 Notice to Married Participants. No less than thirty (30) days
and no more than ninety (90) days prior to the Annuity Starting Date, the
Committee shall furnish any Participant who has a Spouse, by mail or
personal delivery, with a written explanation of (a) the terms and
conditions of the Qualified Joint and Survivor Annuity provided in Section
7.01 of the Plan, (b) the Participant's right to make, and the effect of,
an election to waive the Qualified Joint and Survivor Annuity form of
benefit, (c) the rights of the Participant's Spouse under Section 7.02(b)
of the Plan to consent to a waiver of the Qualified Joint and Survivor
Annuity form, and (d) the right to make, and the effect of, a revocation of
an election to waive payment in the form of a Qualified Joint and Survivor
Annuity. Within thirty (30) days following receipt by the Committee of a
Participant's written request, the Participant shall be furnished an
additional written explanation, in terms of dollar amounts, of the
financial effect of an election not to receive the Qualified Joint and
Survivor Annuity. The Committee shall not be required to comply with more
than one such request.
7.05 Small Payments. If the Actuarial Equivalent of the Partici-
pant's vested retirement benefit does not exceed $3,500, then the Committee
may pay the present value of the Participant's vested retirement benefit in
a lump sum payment to the Participant and the nonvested portion will be
treated as a forfeiture.
7.06 Annuity Contract Nontransferable. Any annuity contract
distributed herefrom must be nontransferable.
7.07 Conflicts With Annuity Contracts. The terms of any annuity
contract purchased and distributed by the Plan to a Participant, Spouse or
Beneficiary shall comply with the requirements of this Plan.
7.08 Rollovers. This Section 7.08 applies to distributions made on
or after January 1, 1993. Notwithstanding any provision of the Plan to the
contrary that would otherwise limit a distributee's election under this
Section 7.08, a distributee may elect, at the time and in the manner
prescribed by the Plan Administrator, to have any portion of an eligible
rollover distribution paid directly to an eligible retirement plan
specified by the distributee in a direct rollover.
The following definitions shall apply for purposes of this
Section 7.08:
- 3 -
115
(a) Eligible rollover distribution: An eligible rollover
distribution is any distribution of all or any portion of the balance to
the credit of the distributee, except that an eligible rollover
distribution does not include: any distribution that is one of a series of
substantially equal periodic payments (not less frequently than annually)
made for the life (or life expectancy) of the distributee or the joint
lives (or joint life expectancies) of the distributee and the distributee's
designated beneficiary, or for a specified period of ten years or more; any
distribution to the extent such distribution is required under Section
401(a)(9) of the Code; and the portion of any distribution that is not
includable in gross income (determined without regard to the exclusion for
net unrealized appreciation with respect to employer securities).
(b) Eligible retirement plan: An eligible retirement plan is
an individual retirement account described in Section 408(a) of the Code,
an individual retirement annuity described in Section 408(b) of the Code,
an annuity plan described in Section 403(a) of the Code, or a qualified
trust described in Section 401(a) of the Code, that accepts the
distributee's eligible rollover distribution. However, in the case of an
eligible rollover distribution to the surviving Spouse, an eligible
retirement plan is an individual retirement account or individual
retirement annuity.
7.09 Waiver of Thirty (30) Day Notice Period. The notice required by
Section 1.411(a)-11(c) of the Treasury Regulations must be provided to a
Participant no less than thirty (30) days and no more than ninety (90) days
before the Annuity Starting Date.
If a distribution is one to which Sections 401(a)(11) and 417 of
the Code do not apply, such distribution may commence less than thirty (30)
days after the notice required under Section 1.411(a)-11(c) of the Treasury
Regulations is given, provided that:
(a) the Plan Administrator clearly informs the Participant that
the Participant has a right for a period of at least thirty (30) days after
receiving the notice to consider the decision of whether or not to elect a
distribution (and, if applicable, a particular distribution option), and
(b) the Participant, after receiving the notice, affirmatively
elects a distribution.
- 4 -
116
ARTICLE 8
DEATH BENEFITS
8.01 Qualified Pre-Retirement Survivor Annuity.
(a) (i) If a Participant who has a vested interest in his
retirement benefit dies before payment of his benefits commence, and the
Participant is survived by a Spouse, then such surviving Spouse shall
receive a death benefit equal to, and in the form of a Qualified Pre-
Retirement Survivor Annuity. For purposes of this Section 8.01, a
Qualified Pre-Retirement Survivor Annuity means a Life Annuity for the life
of the surviving Spouse in a monthly amount equal to the amount that would
have been payable to such Spouse if:
(A) in the case of a Participant who dies after his
Normal Retirement Date or after his Early Retirement Date, the Participant
had immediately prior to death commenced receiving payment of a Qualified
Joint and Survivor Annuity that is the Actuarial Equivalent of his vested
Normal Retirement Benefit, with the Spouse's annuity being equal to fifty
(50%) percent of the Participant's annuity; or
(B) in the case of a Participant who dies on or
before his Normal Retirement Date and before his Early Retirement Date, the
Participant had
(1) separated from Service on the date of death,
(2) survived until the earlier of the
Participant's Normal Retirement Date or the Early Retirement Date,
(3) immediately commenced receiving payment of a
Qualified Joint and Survivor Annuity that is the Actuarial Equivalent of
his vested Normal Retirement Benefit, with the Spouse's annuity being equal
to fifty (50%) percent of the Participant's annuity, and
(4) died on the day after the earlier of the
Participant's Normal Retirement Date or the Participant's Early Retirement
Date.
(ii) Payment of the Qualified Pre-retirement Survivor
Annuity shall commence on the later of (1) the earlier of the Participant's
Normal Retirement Date or the Participant's Early Retirement Date, and (2)
the first day of the month coincident with or immediately following the
Participant's death.
The actuarial value of benefits which commence later than the
date on which payments would have been made to the surviving Spouse with a
Qualified Joint and Survivor Annuity shall be adjusted to reflect the
delayed payment.
(b) The Qualified Pre-Retirement Survivor Annuity of a married
Participant who was an active Employee on or after September 1, 1994 shall
be fully subsidized by the Plan. The Qualified Pre-Retirement Survivor
Annuity of a married Participant who was a deferred vested Participant on
September 1, 1994 shall not be fully subsidized.
- 1 -
117
(c) A married Participant whose pre-retirement death benefit is
not fully subsidized may during the election period elect to waive the
Qualified Pre-Retirement Survivor Annuity provided in this Section 8.01;
provided, however, that no such election may be made unless:
(i) The Spouse consents in writing to the election, the
election designates a specific Beneficiary, including any class of
beneficiaries or contingent beneficiaries, which may not be changed without
spousal consent (or the Spouse expressly permits designations by the
Participant without further spousal consent); and the Spouse's consent
acknowledges the effect of such election and is witnessed by a member of
the Committee or a notary public.
(ii) If it is established to the satisfaction of the
Committee that the required consent may not be obtained because there is no
Spouse, because the Spouse cannot be located, or because of such other
circumstances as provided in Treasury Regulations under the applicable
provisions of the Code.
Any consent by a Spouse (or establishment that the consent of a
Spouse may not be obtained) under this Section 8.01(c) shall be effective
only with respect to such Spouse. Any election pursuant to this Section
8.01(c) may be revoked by the Participant without the consent of the
Participant's Spouse at any time during the election period (as described
hereafter in this Section 8.01(c)). The election period shall commence on
the first day of the Plan Year in which the Participant attains age thirty-
five (35) and shall end on the date of his death; provided, however, that
in the case of any Participant who is separated from Service, the election
period with respect to benefits accrued before the date of such separation
from Service shall begin not later than the date of the Participant's
separation from Service.
A Participant who will not yet attain age thirty-five (35), as
of the end of any current Plan Year, may make a special qualified election
to waive the Qualified Pre-retirement Survivor Annuity for the period
beginning on the date of such election and ending on the first day of the
Plan Year in which the Participant will attain age thirty-five (35). Such
election shall not be valid unless the Participant receives a written
explanation of the Qualified Pre-Retirement Survivor Annuity. The
Qualified Pre-Retirement Survivor Annuity coverage will be automatically
reinstated as of the first day of the Plan Year in which the Participant
attains age thirty-five (35). Any new waiver on or after such date shall
be subject to the full requirements of this Section.
The Plan Administrator shall provide each Participant within the
applicable period for such Participant, a written explanation of the
Qualified Pre-Retirement Survivor Annuity in such terms and in such a
manner as would be comparable to the explanation provided for meeting the
requirements of Section 7.04 applicable to a Qualified Joint and Survivor
Annuity.
The applicable period for a Participant is whichever of the
following periods ends last:
(i) the period beginning with the first day of the Plan
Year in which the Participant attains age thirty-two (32) and ending with
the close of the Plan Year preceding the Plan Year in which the Participant
attains age thirty-five (35);
- 2 -
118
(ii) a reasonable period ending after the individual
becomes a Participant;
(iii) a reasonable period ending after Section 8.01(d)
ceases to apply to the Participant;
(iv) a reasonable period ending after this Article first
applies to the Participant.
Notwithstanding the foregoing, notice must be provided within a
reasonable period ending after separation of Service in case of a
Participant who separates from Service before attaining age thirty-five
(35).
For purposes of the preceding paragraph, a reasonable period
ending after the enumerated events described in Subparagraphs (ii), (iii)
and (iv) of this Section 8.01(c) is the end of the two (2) year period
beginning one (1) year prior to the date the applicable event occurs and
ending one year after that date. In the case of a Participant who
separates from Service before the Plan Year in which age thirty-five (35)
is attained, notice shall be provided within the two (2) year period
beginning one year prior to separation and ending one (1) year after
separation. If such a Participant thereafter returns to employment with
the Company, the applicable period for such Participant shall be
redetermined.
(d) Notwithstanding the other requirements of Section 8.01(c)
of the Plan, the respective notices prescribed in Section 8.01(c) may not
be given to a Participant if the Plan fully subsidizes the cost of a
Qualified Joint and Survivor Annuity or Qualified Pre-Retirement Survivor
Annuity, and the Plan does not allow the Participant to waive the Qualified
Joint and Survivor Annuity or Qualified Pre-Retirement Survivor Annuity and
does not allow a married Participant to designate a non-Spouse Beneficiary.
For purposes of Sections 8.01(b) and (c) of the Plan, the Plan fully
subsidizes the cost of a benefit if, under the Plan, no increase in cost or
decrease in benefits to the Participant may result from the Participant's
failure to elect another benefit. Prior to the time the Plan allows the
Participant to waive the Qualified Pre-retirement Survivor Annuity, the
Plan may not charge the Participant for the cost of such benefit by
reducing the Participant's benefits under the Plan or by any other method.
8.02 Post-Retirement Death Benefit. Upon the death after retirement
of a Participant who contributed for sixty (60) consecutive months ending
August 31, 1994 and attained age fifty-five (55) on or before August 31,
1994, his Death Benefit shall be equal to:
(a) $1,000; plus
(b) the greater of (i) his Compensation (on an annual basis) in
effect on the January 1 next preceding his retirement date, reduced by
1/60th of such amount on the first day of each month following his
retirement date, and (ii) $2,000; less
(c) Any amounts under a Group Life Insurance Plan of the
Company which were paid to such Participant during his lifetime or are
payable by reason of his death.
- 3 -
119
8.03 Payment to Beneficiary.
(a) The amount of the Survivor Annuity, if any, payable to the
surviving Spouse of a Participant shall be payable in the form of the
Survivor Annuity, as provided in Section 8.01 of the Plan; provided,
however, that the Committee may, in its discretion, make an immediate lump
sum distribution to the surviving Spouse of an amount equal to the
Actuarial Equivalent of the Survivor Annuity if either (i) the amount of
such distribution would not exceed $3,500, or (ii) the Spouse consents in
writing to such distribution.
(b) (i) Except as otherwise provided in Section 8.04 of the
Plan, the amount of any death benefits payable to a Participant's
Beneficiary under Section 8.02 of the Plan shall be made or commence to be
made at the time, and in a form provided under Section 7.02 of the Plan,
elected by the Participant or by the Beneficiary if permitted by the terms
of the Participant's election. Such election shall be made in the form and
manner prescribed by the Committee. If no such election is made or
effective, payment shall be made to the Beneficiary in a lump sum.
(ii) Unless a Participant or Beneficiary has elected, in
the form and manner prescribed by the Committee, to defer payment of the
death benefits, payment to the Beneficiary shall be made, or commence to be
made, within ninety (90) days after the date of the Participant's death.
8.04 Required Distributions.
(a) If a Participant dies after distribution of his interest in
the Plan has commenced in accordance with Article 7 of the Plan, the
remaining portion of the Participant's interest in the Plan shall be
distributed at least as rapidly as the method of distribution being used as
of the date of the Participant's death pursuant to Article 7 of the Plan.
(b) If the Participant dies before distribution of his interest
in the Plan has commenced, the Participant's entire interest in the Plan
shall be distributed no later than five (5) years after the date of the
Participant's death except to the extent provided in Subparagraphs (i) or
(ii) below:
(i) if any portion of the Participant's interest in the
Plan is payable to (or for the benefit of) a designated Beneficiary,
distribution of the Participant's interest in the Plan may be made over the
life of such designated Beneficiary (or over a period not extending beyond
the life expectancy of such designated Beneficiary), commencing no later
than one year after the date of such Participant's death or such later date
as may be provided in Treasury Regulations under the applicable provisions
of the Code; and
(ii) if the designated Beneficiary is the Participant's
surviving Spouse, the date on which the distributions are required to begin
in accordance with paragraph (i) immediately above shall not be earlier
than the date on which the Participant would have attained age seventy and
one-half (70 1/2), and if the surviving Spouse dies before the distributions
to such Spouse begin, subsequent distributions shall be made as if the
surviving Spouse were the Participant.
- 4 -
120
(c) For purposes of this Section 8.04:
(i) the life expectancy of the Participant and, if
applicable, the Participant's Spouse (other than in the case of a Life
Annuity) may be determined but not more frequently than annually, and
(ii) any amount paid to a child shall be treated as if it
had been paid to the surviving Spouse if such amount will become payable to
the surviving Spouse when such child reaches the age of majority (or such
other designated event permitted under Treasury regulations).
- 5 -
121
ARTICLE 9
RETIREMENT BENEFITS UNDER
COLLECTIVE BARGAINING AGREEMENTS
9.01 Eligibility for Employees Subject to a Collective Bargaining
Agreement.
(a) Each Employee whose employment is covered by a collective
bargaining agreement to which the Company is a party who, on or after
September 15, 1952, shall have attained the age of sixty-five (65), shall
have completed ten (10) or more Years of Credited Service and shall have
ceased active Service shall be entitled to receive the pension under this
Article 9.
(b) Effective January 1, 1976, an Employee to whom Subsection
(a) of this Section 9.01 applies who begins employment with the Company
five (5) or more years before the Normal Retirement Age shall be a
Participant in the Plan and entitled to a benefit after reaching Normal
Retirement Age based upon actual Years of Credited Service.
(c) Effective January 1, 1989, each Employee to whom Subsection
(a) of this Section 9.01 applies who, on or after September 15, 1952, shall
have completed five (5) or more Years of Credited Service, and shall have
ceased active Service shall be entitled to receive a pension benefit under
the Plan regardless of the number of years of participation before
retirement age.
9.02 Amount, Form, and Commencement of Retirement Benefit. The
monthly amount of pension payable to a pensioner retired pursuant to the
provisions of Section 9.01 of the Plan shall be as follows:
(a) Normal Retirement.
(i) Wood-Ridge and Nuclear Facilities. With respect to
any such pensioner whose Credited Service was with the Wood-Ridge and
Nuclear Facilities:
(A) With benefits payable commencing prior to October 1,
1962, $6.00 multiplied by his Years of Credited Service for any pension
payments due for months commencing on and after October 1, 1974 but prior to
October 1, 1976 and $6.25 multiplied by his Years of Credited Service for any
pension payments due for months commencing on and after October 1, 1976.
(B) With benefits payable commencing on and after
October 1, 1962 and prior to October 1, 1965, $6.25 multiplied by his Years
of Credited Service for any pension payments due for months commencing on
and after October 1, 1974 but prior to October 1, 1976 and $6.50 multiplied
by his Years of Credited Service for any pension payments due for months
commencing on and after October 1, 1976.
(C) With benefits payable commencing on and after
October 1, 1965 and prior to October 1, 1968, $6.50 multiplied by his Years
of Credited Service for any pension payments due for months commencing on
and after October 1, 1974 but prior to October 1, 1976 and $6.75 multiplied
by his Years of Credited Service for any pension payments due for months
commencing on and after October 1, 1976.
- 1 -
122
(D) With benefits payable commencing on and after
October 1, 1968 and prior to October 1, 1971, $7.50 multiplied by his Years
of Credited Service for any pension payments due for months commencing on
and after October 1, 1974 but prior to October 1, 1976 and $7.75 multiplied
by his Years of Credited Service for any pension payments due for months
commencing on and after October 1, 1976.
(E) With benefits payable commencing on and after
October 1, 1971 and prior to October 1, 1974, $8.25 multiplied by his Years
of Credited Service for any pension payments due for months commencing on
and after October 1, 1974 but prior to October 1, 1976 and $8.50 multiplied
by his Years of Credited Service for any pension payments due for months
commencing on and after October 1, 1976.
(F) With benefits payable commencing on and after
October 1, 1974 and prior to October 1, 1976, $9.00 multiplied by his Years
of Credited Service for any pension payments due for months commencing on
and after October 1, 1974.
(G) With benefits payable commencing on and after
October 1, 1976, $10.00 multiplied by his Years of Credited Service for any
pension payments due for months commencing on and after October 1, 1976.
(ii) Buffalo Facility. With respect to any such pensioner
whose Credited Service was with the Buffalo Facility:
(A) With benefits payable commencing prior to Octo-
ber 1, 1962, $4.75 multiplied by his Years of Credited Service for any
pension payments due for months commencing on and after October 1, 1969.
(B) With benefits payable commencing on or after
October 1, 1962 and prior to October 1, 1965, $5.00 multiplied by his Years
of Credited Service for any pension payments due for months commencing on
and after October 1, 1969.
(C) With benefits payable commencing on or after
October 1, 1965 and prior to October 1, 1968, $5.25 multiplied by his Years
of Credited Service for any pension payments due for months commencing on
and after October 1, 1969.
(D) With benefits payable commencing on or after
October 1, 1968 and prior to October 1, 1971, $6.25 multiplied by his Years
of Credited Service for any pension payments due for months commencing on
and after October 1, 1970.
(E) With benefits payable commencing on or after
October 1, 1971 and prior to October 1, 1973, $6.25 multiplied by his Years
of Credited Service for benefit payments due prior to February 1, 1972,
becoming the sum of $6.25 multiplied by his Years of Credited Service prior
to January 1, 1972 and $7.00 multiplied by his Years of Credited Service on
and after January 1, 1972 for benefit payments due on and after February 1,
1972.
(F) With benefits payable commencing on or after
October 1, 1973, the sum of $6.50 multiplied by his Years of Credited
Service prior to January 1, 1972 and $7.00 multiplied by his Years of
Credited Service on and after January 1, 1972.
- 2 -
123
(G) With benefits payable commencing on or after
October 1, 1974, the sum of $8.00 multiplied by his Years of Credited
Service prior to January 1, 1972 and $7.00 multiplied by his Years of
Credited Service on and after January 1, 1972 for payments due on and after
October 1, 1974.
(H) With benefits payable commencing on or after
October 1, 1975, $8.00 multiplied by his Years of Credited Service for
payments due on and after October 1, 1975.
(I) With benefits payable commencing on or after
November 1, 1977 and prior to November 1, 1978, the sum of $8.00 multiplied
by his Years of Credited Service prior to January 1, 1978 and $9.00
multiplied by his Years of Credited Service on and after January 1, 1978.
(J) With benefits payable commencing on or after
November 1, 1978, the sum of $8.00 multiplied by his Years of Credited
Service prior to January 1, 1978 and $10.00 multiplied by his Years of
Credited Service on and after January 1, 1978.
(K) With benefits payable commencing on or after
November 2, 1980, the sum of:
(1) $8.00 multiplied by his Years of Credited
Service prior to January 1, 1978,
(2) $10.00 multiplied by his Years of Credited
Service from January 1, 1978 through November 1, 1980,
(3) $11.00 multiplied by his Years of Credited
Service from November 2, 1980 through November 1, 1981,
(4) $12.00 multiplied by his Years of Credited
Service on and after November 2, 1981 through May 4, 1985,
(5) $13.00 multiplied by his Years of Credited
Service on and after May 4, 1985 through July 23, 1993, and
(6) $17.00 multiplied by his Years of Credited
Service on and after July 24, 1993.
(iii) Curtiss-Wright Flight Systems, Inc. Facility. With
respect to any such pensioner whose Credited Service was with the
Curtiss-Wright Flight Systems, Inc. Facility:
(A) With benefits payable commencing prior to October 1,
1962, $4.75 multiplied by his Years of Credited Service for any pension pay-
ments due for months commencing on and after October 1, 1969.
(B) With benefits payable commencing on or after
October 1, 1962 and prior to October 1, 1965, $5.00 multiplied by his Years
of Credited Service for any pension payments due for months commencing on
and after October 1, 1969.
(C) With benefits payable commencing on or after
October 1, 1965 and prior to October 1, 1968, $5.25 multiplied by his Years
of Credited Service for any pension payments due for months commencing on
and after October 1, 1969.
- 3 -
124
(D) With benefits payable commencing on or after
October 1, 1968, $6.25 multiplied by his Years of Credited Service.
(iv) Marquette Metal Products Company. With respect to any
such pensioner whose Credited Service was with The Marquette Metal Products
Company:
(A) With benefits payable commencing prior to Octo-
ber 1, 1962, $4.75 multiplied by his Years of Credited Service for any
pension payments due for months commencing on and after October 1, 1969.
(B) With benefits payable commencing on or after
October 1, 1962 and prior to October 1, 1965, $5.00 multiplied by his Years
of Credited Service for any pension payments due for months commencing on
and after October 1, 1969.
(C) With benefits payable commencing on or after
October 1, 1965 and prior to October 1, 1968, $5.25 multiplied by his Years
of Credited Service for any pension payments due for months commencing on
and after October 1, 1969.
(D) With benefits payable commencing on or after
October 1, 1968 and prior to October 1, 1971, $6.25 multiplied by his Years
of Credited Service for any pension payments due for months commencing on
and after October 1, 1970.
(E) With benefits payable commencing on or after October
1, 1971 and prior to October 1, 1973, $6.25 multiplied by his Years of Credited
Service for benefit payments due prior to February 1, 1972, becoming the sum of
$6.25 multiplied by his Years of Credited Service prior to October 1, 1971 and
$7.00 multiplied by his Years of Credited Service on and after October 1, 1971
for benefit payments due on and after February 1, 1972.
(F) With benefits payable commencing on or after
October 1, 1973, the sum of $6.50 multiplied by his Years of Credited
Service prior to October 1, 1971 and $7.00 multiplied by his Years of
Credited Service on and after October 1, 1971.
(G) With benefits payable commencing on or after
October 1, 1974, the sum of $7.50 multiplied by his Years of Credited
Service prior to October 1, 1971 and $7.50 multiplied by his Years of
Credited Service on and after October 1, 1971.
(H) With benefits payable commencing on or after
October 1, 1975, the sum of $7.50 multiplied by his Years of Credited
Service prior to October 1, 1971 and $8.00 multiplied by his Years of
Credited Service on and after October 1, 1971.
(I) With benefits payable commencing on or after
October 1, 1976, the sum of $7.50 multiplied by his Years of Credited
Service prior to October 1, 1971 and $9.00 multiplied by his Years of
Credited Service on and after October 1, 1971 and $10.00 multiplied by his
Years of Credited Service on and after November 1, 1979.
- 4 -
125
(v) Target Rock Corporation. With respect to any such
pensioner whose Credited Service was with Target Rock Corporation:
(A) With benefits commencing on or after June 1, 1967
and prior to October 1, 1968, $6.25 multiplied by his Years of Credited
Service, for any pension payments due for months commencing on and after
February 1, 1972.
(B) With benefits payable commencing on or after
October 1, 1968 and prior to October 1, 1971, $7.25 multiplied by his Years
of Credited Service, for any pension payments due for months commencing on
and after February 1, 1972.
(C) With benefits payable commencing on or after
October 1, 1971 and prior to June 1, 1975, his Years of Credited Service
multiplied by $6.25 for any pension payments due for months commencing on
and after October 1, 1971 but prior to February 1, 1972 and by $8.00 for
any pension payments due for months commencing on or after February 1,
1972.
(D) With benefits payable commencing on or after
June 1, 1975 and prior to May 1, 1977, $9.00 multiplied by his Years of
Credited Service for any pension payments due for months commencing on and
after June 1, 1975.
(E) With benefits payable commencing on or after
May 1, 1977, the sum of $9.00 multiplied by his Years of Credited Service
prior to May 1, 1977 and $10.00 multiplied by his Years of Credited Service
on and after May 1, 1977 for any pension payments due for months commencing
on and after May 1, 1977.
(F) $11.00 multiplied by his Years of Credited
Service on or after May 1, 1981 for any pension payments due for months
commencing on and after May 1, 1981, $12.00 multiplied by his Years of
Credited Service on and after May 5, 1982 for any pension payments due for
months commencing on and after May 5, 1982, $13.00 multiplied by his Years
of Credited Service on and after May 7, 1984 for any pension payments due
for months commencing on and after May 7, 1984, $14.00 multiplied by his
Years of Credited Service on and after May 6, 1985 for any pension payments
due for months commencing on and after May 6, 1985, and $15.00 multiplied
by his Years of Credited Service on and after May 5, 1986 for any pension
payments due for months commencing on and after May 5, 1986.
(b) Early Retirement. On or after January 1, 1989 any Employee
who has attained age fifty-five (55) but not age sixty-five (65) and who
has five (5) or more Years of Credited Service may retire at his option,
and for any such Employee who retires with benefits which first could
commence on or after October 1, 1965, the monthly pension payable to him
shall be either:
(i) a pension commencing at age sixty-five (65) determined
in accordance with Section 9.02(a) of the Plan and based upon his Credited
Service at the time of his early retirement, or
(ii) a pension commencing on the first day of the month
selected by him at the time of his early retirement which is after such
retirement and prior to age sixty-five (65) in an amount equal to the
amount that would have been payable at age sixty-five (65) on the basis of
his Credited Service at the time of early retirement, multiplied by the
applicable percentage set forth in the following table (Schedule F):
- 5 -
126
Attained Age at the Time
Pension Commences Percent *
------------------------ ---------
64 97.0
63 94.0
62 91.0
Attained Age at the Time
Pension Commences Percent *
------------------------ ---------
61 88.0
60 85.0
59 79.6
58 74.2
57 68.8
56 63.4
55 58.0
* To be prorated on the basis of the Employee's attained age
plus the number of complete months (twelfths of a year) since his last
birthday.
If an Employee's Credited Service at the time of his early
retirement is in excess of twenty (20) years, then the amount of the
monthly pension payable to such an Employee as determined above shall be
increased by:
(A) one tenth (1/10) of one percent (1%) for each
one-tenth (1/10) year of such Employee's Credited Service in excess of
twenty (20) years up to a maximum increase of ten percent (10%) with
respect to benefits which first could commence on or after October 1, 1965
and prior to October 1, 1968, or
(B) two-tenths (2/10) of one percent (1%) for each
one-tenth (1/10) year of such Employee's Credited Service in excess of
twenty (20) years up to a maximum increase of ten percent (10%) with
respect to benefits which first could commence on or after October 1, 1968,
but in no event shall the total monthly pension payable to such Employee
under this Section 9.02(b) be greater than the amount of monthly pension
that would have been payable to him at age sixty-five (65) on the basis of
his Credited Service at the time of early retirement.
(c) Total and Permanent Disability Retirement.
(i) An Employee with at least five (5) Years of Credited
Service who is actually at work for the Company or is on an Company-
approved Leave of Absence on or after January 1, 1989, who subsequent to
September 15, 1952 becomes totally and permanently disabled prior to
attaining age sixty-five (65), shall be eligible for a disability pension
as hereinafter provided.
- 6 -
127
(ii) An Employee shall be deemed to be totally and per-
manently disabled when on the basis of medical evidence satisfactory to the
Company he is found to be wholly and permanently prevented from engaging in
any occupation or employment for wage or profit as a result of bodily
injury or disease, either occupational or non-occupational in cause,
provided, however, that no Employee shall be deemed to be totally and
permanently disabled for the purposes of the Plan if his disability
resulted from a self- inflicted injury, or a hostile act of a foreign
power, or resulted from service in the Armed Forces of any country, unless
his benefits could first commence on or after January 1, 1989, and he has
accumulated five (5) Years of Credited Service since such hostile act or
since leaving service in such Armed Forces.
(iii) The monthly pension payable to a disability pensioner
shall be in accordance with Section 9.02(a) of the Plan, based on Credited
Service at the date of disability.
(iv) In addition to the monthly pension provided for in
subparagraph (iii), there shall be payable to a disability pensioner during
the continuance of his total and permanent disability until he attains age
sixty-five (65), or, if earlier, until the date at which such disability
pensioner becomes or could have become entitled to an unreduced Federal
Social Security benefit for age for disability, a monthly amount equal to:
(A) $5.20 multiplied by his Years of Credited Service
at the date of disability, but not more than $130, with respect to a
monthly pension that first could commence prior to October 1, 1968,
(B) $6.00 multiplied by his Years of Credited Service
at the date of disability, but not more than $150, with respect to a
monthly pension that first could commence on or after October 1, 1968, and
(C) $10.00 multiplied by his Years of Credited
Service at the date of disability, but not more than $250, with respect to
a monthly pension that first could commence on or after March 1, 1978.
(v) Any disability pensioner may be required to submit to
medical examination at any time during retirement prior to age sixty-five
(65), but not more often than semi-annually, to determine whether he is
eligible for continuance of the disability pension. If, on the basis of
such examination, it is found that he is no longer disabled or if he
engages in gainful employment, except for purposes of rehabilitation as
determined by the Company, his disability pension will cease. In the event
the disability pensioner refuses to submit to medical examination, his
pension will be discontinued until he submits to examination.
(d) Retention of Deferred Pension.
(i) An Employee who loses Credited Service in accordance
with Section 9.03(c) of the Plan prior to the age at which he is eligible
for early retirement in accordance with Section 9.02(b) of the Plan, shall
be eligible for a deferred pension; provided, that:
(A) If such loss was on or after September 15, 1957
and prior to September 30, 1962, such Employee then had at least twenty
(20) Years of Credited Service; or
(B) If such loss was on or after September 30, 1962
and prior to September 30, 1965, such Employee either:
- 7 -
128
(1) then had at least ten (10) Years of Credited
Service and had attained his fortieth (40th) birthday; or
(2) then had at least twenty (20) Years of
Credited Service accrued through (i) the calendar year 1962 or (ii) the
date of his loss of Credited Service, whichever is earlier; or
(C) If such loss was on or after September 30, 1965,
such Employee then had at least ten (10) Years of Credited Service; or
(D) If such loss was on or after January 1, 1989,
such Employee then had at least five (5) Years of Credited Service.
(ii) The monthly amount of such deferred pension commencing
at age sixty-five (65) for Employees eligible therefor in accordance with
Section 9.02(a) of the Plan shall be as shown in Schedule A attached hereto
for the Wood-Ridge Facility, Schedule G attached hereto for the Buffalo
Facility, Schedule C attached hereto for the Curtiss-Wright Flight Systems
Facility, and Schedule D attached hereto for the Target Rock Facility. The
deferred pension rates for Marquette are the same rates as shown in Section
9.02(a)(iv) of the Plan for the Marquette Facility.
(iii) For Employees who became eligible for a deferred
pension before January 1, 1976:
Upon written request to the Company by a former Employee
eligible for a deferred pension in accordance with this Section 9.02(d),
such deferred pension shall be payable on the first day of the month
following the later of (a) the month in which such former Employee attains
age sixty-five (65), or effective October 1, 1962, age sixty (60), or (b)
the month during which the Company receives such written request, provided,
that any deferred pension commencing after age sixty (60) and prior to age
sixty-five (65) shall be the amount in accordance with Section 9.02(a) of
the Plan, reduced by sixth-tenths (6/10) of one percent (1%) (Schedule D)
for each complete calendar month by which such former Employee is under the
age of sixty-five (65) at the time such deferred pension commences. The
written request must be received by the Company not earlier than sixty (60)
days prior to his sixtieth (60th) birthday.
(iv) For Employees who became eligible for a deferred
pension on or after January 1, 1976:
Such deferred pension benefit shall be payable on the first
day of the month following the later of (a) the month in which such former
Employee attains age fifty-five (55), or (b) sixty (60) days from the date
the Company receives such written request; provided that any deferred
pension benefit commencing after age fifty-five (55) and prior to age
sixty-five (65) shall be the amount in accordance with Section 9.02(a) of
the Plan, reduced by six-tenths (6/10) of one percent (1%) for each
complete calendar month by which such former Employee is under the age of
sixty-five (65) at the time such deferred pension commences. The written
request must be received by the Company not earlier than sixty (60) days
prior to his fifty-fifth (55th) birthday.
- 8 -
129
(e) Optional Survivor Benefit Election.
(i) An Employee retiring with benefits payable commencing
on or after January 1, 1989, in accordance with the normal, early or total
and permanent disability retirement provisions of this Article 9, where an
Employee is age fifty-five (55) or older, or who loses Seniority on or
after January 1, 1989 and is eligible for a deferred pension benefit in
accordance with Section 9.02(d) of the Plan, will, unless waived, receive
an adjusted amount of monthly pension benefit to provide that, if his or
her designated Spouse shall be living at his or her death after the
survivor benefit becomes effective, a survivor benefit shall be payable to
such Spouse during his or her further lifetime.
(A) The Employee may designate as a beneficiary of a
survivor benefit only the person who is his or her Spouse at such time and
who has been his or her Spouse for at least one (1) year immediately prior
to the date of benefit commencement. Such designation must be accompanied
by proof of marriage and date of birth of Spouse.
(B) An Employee who is entitled to a total and perma-
nent disability benefit prior to attaining age fifty-five (55) shall have
such benefit adjusted to provide the survivor benefit, if not waived,
effective the first day of the month following his or her fifty-fifth
(55th) birthday.
(C) A survivor benefit shall be irrevocable at or
after its effective date if the Employee and the designated Spouse both
shall be living at such time.
(D) The survivor benefit shall become effective, if
not waived, on the commencement date of the Employee's monthly benefit and
payable on and after the first day of the month following the pensioner's
death.
(E) If the amount of monthly pension benefit that
would be payable to the Employee, in accordance with subparagraph (ii) of
this Section 9.02(e), shall be less than $30.00 a month, the option set
forth in this Section 9.02(e) shall not be available.
(ii) For an Employee receiving a pension benefit with a
survivor benefit adjustment in accordance with subparagraph (i) of this
Section 9.02(e), the reduced amount of his monthly pension benefit referred
to in subparagraph (i) shall be equal to an amount determined by
multiplying the monthly pension benefit otherwise payable to the Employee
by ninety percent (90%) if the Employee's age and his designated Spouse's
age are the same (the age of each for the purposes hereof being the age at
his or her last birthday prior to the effective date of the survivor
benefit); or, if such ages are not the same, such percentage shall be
increased by one-half of one percent (1/2%), up to a maximum of one hundred
percent (100%), for each year that the designated Spouse's age exceeds the
Employee's age and shall be decreased by one-half of one percent (1/2%) for
each year that the designated Spouse's age is less than the Employee's age.
(iii) The survivor benefit payable to the surviving Spouse
of a retired Employee in accordance with paragraph 1 and who dies after
such benefit becomes effective, shall be a monthly benefit for the further
lifetime of such surviving Spouse equal to fifty-five percent (55%) of the
reduced amount of such Employee's monthly pension benefit as determined in
accordance with Section 9.02(a) of the Plan for any such Employee with
benefits payable commencing on or after October 1, 1965.
- 9 -
130
(iv) Effective August 23, 1984, a survivor benefit, not
waived, shall be paid to a surviving Spouse of a vested active participant
not eligible for early retirement or a vested deferred participant who was
credited with at least one (1) Hour of Service subsequent to August 22,
1984 not eligible for early retirement at the date the participant would
have been eligible for early retirement but reduced in accordance with the
tables below.
For Coverage While The
Participant's Age Is Monthly Percentages
---------------------- -------------------
Under 35 .01%
35 - 45 .02%
45 - 54 and 11 months .04%
(v) Effective August 23, 1984, a survivor benefit, may not
be waived by the participant without the consent of the participant's
Spouse. Such consent for a waiver must be in writing and either notarized
or witnessed by a member of the Board of Administration. Notwithstanding
this consent requirement, if the participant establishes to the
satisfaction of the Board of Administration that such written consent
cannot be obtained because:
(A) there is no Spouse;
(B) the Spouse cannot be located; and
(C) of other circumstances if the Secretary of the
Treasury may by regulation prescribe the participant's election to waive
coverage will be considered valid if made within the Applicable Election
Period.
A Participant who will not yet attain age thirty-five (35), as
of the end of any current Plan Year, may make a special qualified election
to waive the Qualified Pre-retirement Survivor Annuity for the period
beginning on the date of such election and ending on the first day of the
Plan Year in which the Participant will attain age thirty-five (35). Such
election shall not be valid unless the Participant receives a written
explanation of the Qualified Pre-Retirement Survivor Annuity. The
Qualified Pre-Retirement Survivor Annuity coverage will be automatically
reinstated as of the first day of the Plan Year in which the Participant
attains age thirty-five (35). Any new waiver on or after such date shall
be subject to the full requirements of this Section.
The Plan Administrator shall provide each Participant within the
applicable period for such Participant, a written explanation of the
Qualified Pre-Retirement Survivor Annuity in such terms and in such a
manner as would be comparable to the explanation provided for meeting the
requirements applicable to a Qualified Joint and Survivor Annuity.
The applicable period for a Participant is whichever of the
following periods ends last:
(1) the period beginning with the first day of
the Plan Year in which the Participant attains age thirty-two (32) and
ending with the close of the Plan Year preceding the Plan Year in which the
Participant attains age thirty-five (35);
(2) a reasonable period ending after the
individual becomes a Participant;
- 10 -
131
(3) a reasonable period ending after the subsidy
of cost ceases to apply to the Participant;
(4) a reasonable period ending after this
Article first applies to the Participant.
Notwithstanding the foregoing, notice must be provided within a
reasonable period ending after separation of Service in case of a
Participant who separates from Service before attaining age thirty-five
(35).
For purposes of the preceding paragraph, a reasonable period
ending after the enumerated events described in Subparagraphs (2), (3) and
(4) of this Section 9.02(e) is the end of the two (2) year period beginning
one (1) year prior to the date the applicable event occurs and ending one
year after that date. In the case of a Participant who separates from
Service before the Plan Year in which age thirty-five (35) is attained,
notice shall be provided within the two (2) year period beginning one year
prior to separation and ending one (1) year after separation. If such a
Participant thereafter returns to employment with the Company, the
applicable period for such Participant shall be redetermined.
Notwithstanding the other requirements of the Plan, the
respective notices prescribed in the Plan may not be given to a Participant
if the Plan fully subsidizes the cost of a Qualified Joint and Survivor
Annuity or Qualified Pre-Retirement Survivor Annuity, and the Plan does not
allow the Participant to waive the Qualified Joint and Survivor Annuity or
Qualified Pre-Retirement Survivor Annuity and does not allow a married
Participant to designate a non-Spouse Beneficiary. For purposes of the
Plan, the Plan fully subsidizes the cost of a benefit if, under the Plan,
no increase in cost or decrease in benefits to the Participant may result
from the Participant's failure to elect another benefit. Prior to the time
the Plan allows the Participant to waive the Qualified Pre-retirement
Survivor Annuity, the Plan may not charge the Participant for the cost of
such benefit by reducing the Participant's benefits under the Plan or by
any other method.
(f) Employees Not Actively at Work. The absence of an Employee
from active work at the time he would be eligible to retire under the Plan
shall not preclude his retirement without return to active work, provided
that such absence is due to lay-off, medical leave or other Company
approved leave of absence commencing subsequent to September 15, 1952 and
provided there has been no loss of Credited Service.
(g) Pension Payments.
(i) Pensions shall be paid monthly. The first monthly
payment of an Employee's pension other than for total and permanent
disability shall be on the first day of the month following the month in
which the Employee actually retires or, in the case of early retirement,
the later date selected by the Employee in accordance with Section
9.02(b)(i) or (ii) of the Plan, and the pension shall be payable monthly
during his lifetime thereafter.
(ii) Total and permanent disability pensions shall be
payable to the disability pensioner (A) on the first day of the month
following the date the required proof of such disability is received by the
Company, or (B) the first day of the month following the completion of a
period of total and permanent disability of six (6) months, whichever is
later, and thereafter shall be payable monthly during the continuance of
total and permanent disability while he remains eligible for such benefits.
- 11 -
132
(iii) In determining the pension payable to any pensioner, a
deduction shall be made equivalent to all or any part of the following
benefits payable to such pensioner by reason of any law of the United
States, or any political subdivision thereof, which has been or shall be
enacted; provided, that such deduction shall be to the extent that such
benefits have been provided by premiums, taxes or other payments paid by or
at the expense of the Company:
(A) Workers' Compensation (except fixed statutory
payments for loss of any bodily member); provided, however, that this
subparagraph shall not be applicable with respect to the monthly pension
payable to any pensioner for months commencing on and after October 1, 1965
except as provided in subparagraph (C) below.
(B) Disability benefits, other than a Primary
Insurance Amount payable under the Federal Social Security Act as now in
effect or as hereafter amended, or a benefit specified in subparagraph (ii)
above.
(C) Workers' Compensation (including hearing, pulmo-
nary, ocular, and other occupational disease and accident claims, but
excluding statutory payments for loss of any physical or bodily members
such as a leg, arm or finger) for Workers' Compensation awards granted
subsequent to March 1, 1978, for Wood-Ridge and Nuclear, January 9, 1978
for Caldwell facility, May 5, 1978 for Target Rock, and August 1, 1988 for
Buffalo.
(h) Death Benefits.
(i) On or after January 1, 1989, upon the death before
retirement of an Employee who had attained age fifty-five (55) and had at
least five (5) Years of Credited Service, a death benefit shall be payable
under the Plan to his surviving Spouse which shall be a monthly pension
determined as if the Employee had retired under the early or normal
retirement provisions of the Plan, whichever would apply at his age as of
the date of his death, with monthly payments commencing on the first day of
the month following the date of his death, and had a survivor benefit
adjustment in accordance with Section 9.02(e) of the Plan; provided,
however, that:
(A) No such benefit shall be payable for any month in
which the surviving Spouse is entitled to receive a Transition or Bridge
Survivor Income Benefit under a Group Life Insurance Plan of the Company;
and
(B) If no qualified Spouse shall survive the
Employee, or if the qualified Spouse's death shall occur while receiving a
Transition or Bridge Survivor Income Benefit under a Group Life Insurance
Plan of the Company, no death benefit shall be payable under this
paragraph.
(ii) Upon the death of a pensioner who retired with
benefits which first could commence on or after October 1, 1965 in
accordance with the early, normal, automatic, or total and permanent
disability retirement provisions of the Plan, the death benefit under the
Plan shall be $1,000, reduced by any amounts under a Group Life Insurance
Plan of the Company which were paid to the pensioner during his lifetime or
are payable by reason of his death.
- 12 -
133
Notwithstanding any provision in this Plan to the contrary,
a pensioner whose Credited Service was with the Buffalo Facility, the death
benefit shall be increased to $2,000 effective September 1, 1994 and $3,000
effective September 1, 1995.
(iii) Payment of the death benefit after retirement shall be
made in a lump sum to a surviving beneficiary designated by the pensioner
or, otherwise, to his estate.
(iv) There shall be no death benefit under the Plan at any
time by reason of the death of an Employee eligible for, or in receipt of,
a deferred pension as provided for in Section 9.02(d) of the Plan.
9.03 Credited Service. The following provisions shall apply to
Employees to whom Section 9.01 of the Plan applies:
(a) Credited Service Prior to September 15, 1952.
(i) Credited Service prior to September 15, 1952 shall be
computed to the nearest one-tenth (1/10) year and shall be the sum of:
(A) the number of years following the Employee's
Seniority date with the Company and preceding September 15, 1952, plus
(B) any period or periods of Service as an hourly or
salaried Employee of the Company preceding the Employee's Seniority date
with the Company, provided that if there was an interval equal to two (2)
years or more between periods of employment with the Company beginning with
the last day of active Service in the employment immediately preceding such
interval, no Service prior to such interval shall be counted, except this
provision shall not apply to any such interval commencing on or after
August 1, 1945, and ending on or before December 31, 1949.
(b) Credited Service Subsequent to September 15, 1952.
(i) Subparagraph (A) of this Section 9.03(b)(i) shall be
applicable for the period of time prior to January 1, 1976. Subparagraphs
(B) and (C) of this Section 9.03(b)(i) shall be applicable to the period of
time subsequent to January 1, 1976.
(A) For purposes of vesting and for purposes of
accrual of benefits prior to January 1, 1976, Credited Service, commencing
with September 15, 1952 and thereafter, shall be computed for each calendar
year for each Employee on the basis of total hours compensated by the
Company during such calendar year and prior to his attaining age sixty-
eight (68). Any calendar year in which the Employee has one thousand seven
hundred (1,700) or more compensated hours shall be counted a full calendar
year. Where his total hours compensated during a calendar year are less
than one thousand seven hundred (1,700) hours, a proportionate credit shall
be given to the nearest one-tenth (1/10) of a year according to Schedule A
attached hereto. For the calendar year 1952 no more than a year's credit
will be given including credit for Service prior to September 15, 1952.
(B) For the purpose of vesting only, Credited Service
commencing with January 1, 1976 shall be computed for each calendar year
for each Employee on the basis of total hours compensated by the Company
during such calendar year. Any calendar year in which the Employee has one
thousand (1,000) or more compensated hours shall be counted a full calendar
year. Where his total hours compensated during a calendar year are less
than one thousand seven hundred (1,700) hours, a proportionate credit shall
be given to the nearest one-tenth (1/10) of a year.
- 13 -
134
(C) For the purpose of accrual of benefits after
January 1, 1976, subparagraph (i) of this Section 9.03(b) shall continue to
apply.
(ii) For the purpose of computing Credited Service, hours
of pay at premium rate shall be computed as straight time hours.
(iii) For the purpose of computing compensated hours under
subparagraph (i) of this Section 9.03(b), an Employee who, after September
15, 1952, shall be absent from work because of occupational injury or
disease incurred in the course of his employment with the Company, and on
account of such absence receives Workers' Compensation while on Company
approved Leave of Absence, shall be credited with the number of hours that
he would have been regularly scheduled to work during such absence,
provided that no Employee shall be credited with Service under this
paragraph after retirement.
(iv) Any Employee who may be transferred subsequent to
September 15, 1952 from employment that is not eligible for the benefits of
the Plan, to employment that is eligible for such benefits, shall have
credited to the nearest one-tenth (1/10) of a year any Credited Service he
had as of the date of such transfer; provided, that there shall be no
duplication of Credited Service, nor, Credited Service of more than one (1)
year in respect to any calendar year.
(v) An Employee who has Seniority and who:
(A) leaves the employment of the Company to enter the
Armed Forces of the United States and retains re-employment rights with the
Company under the re-employment provisions of the Universal Military
Training and Service Act of 1948, as amended, and who, during the period he
retains such re-employment rights, returns to work for the Company or
reports to the Company and is given leave of absence or laid off status,
shall be credited with Future Service at the rate of forty (40) hours per
week during the period he would normally have worked for the Company during
the period he was in the Armed Forces (or the number of hours that the
Company is regularly scheduled to work if less than forty (40) hours), or
(B) after September 30, 1968, is given a medical
leave of absence approved by the Company, shall be credited with Future
Service at the rate of forty (40) hours per week during the period he would
normally have worked for the Company while on such medical leave of
absence; provided, that the Employee otherwise had at least one hundred
seventy (170) compensated hours during the calendar year in which such
medical leave of absence commenced, except this Section 9.03(b) shall not
apply to any absence to which Section 9.03(b)(iii) would apply.
(c) Loss of Credited Service.
(i) After September 15, 1952, an Employee of the Company
will lose all Credited Service for purposes of the Plan and if re-employed
shall be considered as a new Employee of the Company for purposes of the
Plan:
(A) if the Employee quits,
(B) if the Employee is discharged or released,
(C) if the Employee loses his Seniority for any other reason.
- 14 -
135
The provisions of this paragraph shall not affect an
Employee's entitlement to any benefit under the Plan for which he is
eligible at the time of his loss of Credited Service.
(ii) Effective January 1, 1976 for purposes of vesting and
accrual of benefits, any Employee under the Plan whose employment is
terminated and is later re-employed by any other facility or wholly owned
subsidiary of the Company which has adopted the Plan will be entitled to
Credited Service as follows:
(A) if entitled to a vested benefit at the time of
termination, the pre-break and post-break Service will be aggregated.
(B) if not entitled to a vested benefit at the time
of termination, the pre-break and post-break Service subsequent to January
1, 1976 will be aggregated only if his period of absence is less than five
(5) years.
(d) Restoration of Lost Credited Service.
(i) Anything in the Plan to the contrary notwithstanding,
any Employee who has Seniority with the Company on or after September 30,
1968 will be entitled to have any Credited Service with such Company, which
he previously lost in accordance with subparagraph (ii) of Section 9.03(a)
of the Plan or subparagraph (i) or (ii) of Section 9.03(c) of the Plan,
restored for purposes of entitlement to and computation of any benefit
under the Plan, provided that:
(A) In the case of an Employee who lost such Credited
Service prior to October 1, 1968 and who (i) has Seniority on September 30,
1968, such Employee applies to such Company for restoration of such lost
Service prior to July 1, 1969 or (ii) does not have the Seniority on
September 30, 1968 but thereafter acquires Seniority, such Employee applies
for restoration of such lost Credited Service within ninety (90) days of
re-employment by such Company.
(B) Effective January 1, 1976 any Employee having
Seniority with the Company on or after January 1, 1976 will be entitled to
have any Credited Service with the Company which he had previously lost in
accordance with Section 9.03(c) of the Plan restored automatically.
(ii) Effective January 1, 1976, any Employee included in
subparagraphs (i)(B) and (ii)(B) of Section 9.03(c) of the Plan shall be
entitled to the benefit specified in this Section 9.03(d).
9.04 Definitions. For purposes of this Article 9, the following
definitions shall apply:
(a) "Board of Administration" means equal members which shall
be appointed by the Company and equal members which shall be appointed by
the respective union. Such Board of Administration shall have the powers
enumerated in the collective bargaining agreements attached hereto.
(b) "Salaried or Hourly Employee" means an Employee who is
carried on the payroll records of the Company as receiving Compensation on
a weekly, bi-weekly, semi-monthly, monthly or annual basis.
(c) "Seniority" shall have the meaning as defined under the
respective collective bargaining agreement.
- 15 -
136
ARTICLE 10
MERGER OF METAL IMPROVEMENT COMPANY, INC. AND
CURTISS-WRIGHT FLIGHT SYSTEMS/SHELBY, INC.
CONTRIBUTORY RETIREMENT PLANS
10.01 Merger Date. On the Effective Date of this Plan, the METAL
IMPROVEMENT COMPANY, INC. RETIREMENT INCOME PLAN and CURTISS-WRIGHT FLIGHT
SYSTEMS/SHELBY, INC. CONTRIBUTORY RETIREMENT PLAN (hereinafter referred to
individually as a "Merged Plan" or collectively as "Merged Plans") were
merged into the Plan. The following provisions shall apply under the Plan
to the individuals at METAL IMPROVEMENT COMPANY, INC. and CURTISS-WRIGHT
FLIGHT SYSTEMS/SHELBY, INC. who were non-union Employees on the Effective
Date or non-union Employees hired after said date.
10.02 Eligibility.
(a) Notwithstanding any other provision of this Plan to the
contrary, a non-union Employee of either METAL IMPROVEMENT COMPANY, INC. or
CURTISS-WRIGHT FLIGHT SYSTEMS/SHELBY, INC. employed by said companies on
August 31, 1994 shall become a Participant of this Plan on the Effective
Date.
(b) Any future Employee of METAL IMPROVEMENT COMPANY, INC. or
CURTISS-WRIGHT FLIGHT SYSTEMS/SHELBY, INC. shall be eligible to participate
in the Plan as of the Entry Date coinciding with or next following the date
he completes his Year of Eligibility Service.
10.03 Retirement Benefits.
(a) With respect to a "participant" in either of the Merged
Plans who retired, died, became disabled, or terminated Service with
"vested benefits" under either of the Merged Plans prior to September 1,
1994 (irrespective of whether benefits have commenced as of that date), the
Plan will pay to, or in respect of, that "participant" the benefits
provided under the applicable section of the respective Merged Plan in
accordance with the terms thereof (and that person shall have no rights
under the other terms of this Plan).
(b) With respect to a Participant who satisfies the
eligibility requirements of Section 10.02 of the Plan, if he retires, dies,
becomes disabled or terminates Service on or after September 1, 1994, the
Plan will pay to, or in respect of, that Participant the benefits provided
under Articles 4, 6 and 8 of this Plan in accordance with Articles 4, 6, 7
and 8 of the Plan.
For purposes of determining a Participant's benefit under this
paragraph (b), references to Prior Plan in Article 6 of the Plan shall mean
the respective Merged Plan.
For purposes of Section 1.05 of the Plan, a Participant's
earnings with METAL IMPROVEMENT COMPANY, INC. or CURTISS-WRIGHT FLIGHT SYS-
TEMS/ SHELBY, INC. prior to September 1, 1994 shall be included in the
calculation of Final Average Compensation.
(c) For purposes of determining a Participant's benefits under
this Article 10, a Participant shall be credited with his participation in
the respective Merged Plan as of August 31, 1994.
- 1 -
137
(d) Notwithstanding any provision in this Plan to the
contrary, any former participant under the METAL IMPROVEMENT COMPANY, INC.
RETIREMENT INCOME PLAN shall not qualify for a death benefit under Section
8.02 of the Plan.
10.04 Prior Accrued Benefit. Notwithstanding any other provision of
this Plan to the contrary, in respect of periods prior to August 31, 1994,
a Participant who was formerly covered under either of the Merged Plans
shall be credited with an accrued benefit under this Plan equal to his
"retirement benefit" under the respective Merged Plan as of August 31,
1994.
10.05 Vesting.
(a) With respect to a Participant who satisfies the
eligibility requirements of Section 10.02 of the Plan, he shall be vested
in his retirement benefits in accordance with Article 5 of the Plan.
(b) Notwithstanding the provisions of Article 5 of the Plan,
the vesting percentage of a Participant (who is described in (a)
hereinabove and who was a participant in either of the Merged Plans as of
August 31, 1994) in his or her retirement benefit shall not be less than
the vesting percentage as provided under the terms of the respective Merged
Plan.
(c) For purposes of Article 5 of the Plan, a Participant who
is described in (a) hereinabove shall receive vesting credit for his number
of full Years of Service under the terms of the respective Merged Plan as
of August 31, 1994, and his number of Hours of Service for the period from
January 1, 1994 to August 31, 1994, to the extent credited for vesting
purposes under the respective Merged Plan as of August 31, 1994.
10.06 Transfer of Assets. As of a date fixed in accordance with law,
the assets held under the Merged Plans shall be transferred to the Trust
Fund.
- 2 -
138
ARTICLE 11
ADMINISTRATION
11.01 Plan Administrator. The President shall appoint a Committee.
The Committee shall consist of three (3) or more persons designated by the
President. Members of the Committee and its officers and agents may
participate in the benefits under this Plan if otherwise eligible to do so.
The members of the Committee shall serve at the pleasure of the President
and the President shall appoint successors to fill any vacancies in the
Committee.
11.02 Committee's Authority and Powers. The Committee shall
administer the Plan, except where that part of the Plan is pursuant to a
collectively bargained agreement and in such case that agreement shall
govern the administration of that part of the Plan. The Committee shall
have the exclusive discretionary authority and power to determine
eligibility for benefits and to construe the terms and provisions of the
Plan, determine questions of fact and law arising under the Plan, direct
disbursements pursuant to the Plan, and exercise all other powers specified
herein or which may be implied from the provisions hereof. The Committee
may adopt such rules for the conduct of the administration of the Plan as
it may deem appropriate.
11.03 Delegation of Duties. The Committee may delegate such of its
duties and may engage such experts and other persons as it deems
appropriate in connection with administering the Plan.
11.04 Compensation. No member of the Committee shall receive any
Compensation for his services as such.
11.05 Exercise of Discretion. Any person with any discretionary
power in the administration of the Plan shall exercise such discretion in a
nondiscriminatory manner and shall discharge his duties with respect to the
Plan in a manner consistent with the provisions of the Plan and with the
standards of fiduciary conduct contained in Title I, Part 4, of ERISA.
11.06 Fiduciary Liability. In administering the Plan, neither the
Committee nor any member of the Committee nor any person to whom the
Committee delegates any duty or power in connection with administering the
Plan shall be liable, except in the case of his own willful misconduct,
for:
(a) any action or failure to act,
(b) the payment of any amount under the Plan,
(c) any mistake of judgment, or
(d) any neglect, omission or wrongdoing of any other member of
the Committee.
No member of the Committee shall be personally liable under any
contract, agreement, bond, or other instrument made or executed by him or
on his behalf as a member of the Committee.
- 1 -
139
11.07 Indemnification by Company. To the extent not compensated by
insurance or otherwise, the Company shall indemnify and hold harmless each
member of the Committee, and each partner and Employee of the Company
designated by the Committee to carry out any fiduciary responsibility with
respect to the Plan, from any and all claims, losses, damages, expenses
(including counsel fees approved by the Company) and liabilities (including
any amount paid in settlement with the approval of the Company), arising
from any act or omission of such member, or partner or Employee, except
where the same is judicially determined or is determined by the Company to
be due to willful misconduct of such member or Employee. No assets of the
Plan may be used for any such indemnification.
11.08 Plan Participation by Fiduciaries. No person who is a
fiduciary with respect to the Plan shall be precluded from becoming a
Participant upon meeting the requirements for eligibility.
- 2 -
140
ARTICLE 12
AMENDMENT AND TERMINATION OF PLAN
12.01 Amendment. The Company may at any time and from time to time
amend the Plan by written instrument, provided, that:
(a) no amendment that affects the rights and obligations of
the Trustee shall be effective without the written consent of the Trustee,
unless such amendment is necessary for the qualification of the Plan under
Section 401(a) of the Code or to avoid actual or potential liability of the
Company with respect to the Plan, including, without limitation, liability
to make future contributions;
(b) no amendment shall cause the Trust Fund to be used other
than for the exclusive benefit of Participants and their Beneficiaries;
(c) if any amendment changes the vesting provisions of the
Plan, within sixty (60) days after receiving written notice of such
amendment (or such longer period as may be prescribed by Code Section 411
or the regulations promulgated thereunder), a Participant who has completed
at least three (3) Years of Service may file with the Committee an election
to have his vested interest in his retirement benefit computed under the
Plan's vesting provisions as applicable to such Participant immediately
prior to the amendment; and
(d) any party will be protected in assuming that this
Agreement has not been amended until such party has received written notice
of the amendment.
No amendment to the Plan (including a change in the actuarial
basis for determining optional or early retirement benefits) shall be
effective to the extent that it has the effect of decreasing a
Participant's retirement benefit. Notwithstanding the preceding sentence,
a Participant's retirement benefit may be reduced to the extent permitted
under Section 412(c)(8) of the Code. For purposes of this paragraph, a
Plan amendment which has the effect of eliminating or reducing an early
retirement benefit or a retirement-type subsidy; or eliminating an optional
form of benefit, with respect to benefits attributable to Service before
the amendment shall be treated as reducing retirement benefits. In the
case of a retirement-type subsidy, the preceding sentence shall apply only
with respect to a Participant who satisfies (either before or after the
amendment) the pre-amendment conditions for the subsidy. In general, a
retirement-type subsidy is a subsidy that continues after retirement, but
does not include a qualified disability benefit, a medical benefit, a
social security supplement, a death benefit (including life insurance).
Furthermore, if the vesting schedule of a plan is amended, in the case of
an Employee who is a Participant as of the later of the date such amendment
is adopted or becomes effective, the nonforfeitable percentage (determined
as of such date) of such Employee's employer-derived retirement benefit
will not be less than the percentage computed under the Plan without regard
to such amendment.
12.02 Procedure for Amendment. Any modification or amendment of or
to any or all of the provisions of the Plan shall be made by a written
resolution of either the Board of Directors of the Company or the Committee
referred to in Section 1.09 of the Plan, which shall be delivered to the
Trustee and, where required, to the Board of Administration, as defined in
the collective bargaining agreements referred to herein.
- 1 -
141
12.03 Company's Right to Terminate Plan. The Company intends to
maintain the Plan as a permanent tax-qualified retirement plan.
Nevertheless, the Company reserves the right to terminate the Plan (in
whole or in part) at any time and from time to time, for any reason
whatsoever.
12.04 Consequences of Termination.
(a) If the Plan is terminated in whole or in part, or if
Company contributions are completely discontinued, each Participant
affected by such termination or discontinuance shall be fully vested in his
retirement benefit as of the date of such termination or discontinuance of
Company contributions. The Committee shall determine the date and manner
of distribution of the retirement benefits of all affected Participants.
(b) The Committee shall give prompt notice to each Participant
(or, if deceased, his Beneficiary) affected by the Plan's complete or
partial termination, or the discontinuance of Company contributions.
(c) The balance, if any, of the residual assets held by the
Trust Fund after all liabilities have been extinguished, shall revert to
the Company, but only after the satisfaction of liabilities with respect to
the Participants under the Plan.
12.05 Early Termination Restrictions.
(a) In the event that (i) the Plan is terminated within ten
(10) years after the "Commencement Date" or (ii) the benefits provided for
a "Restricted Participant" become payable within ten (10) years after the
Commencement Date, the maximum amount of Company contributions that may be
used to provide benefits for a Restricted Participant may not exceed the
largest of:
(i) Twenty Thousand Dollars ($20,000);
(ii) an amount equal to twenty (20%) percent of the first
$50,000 of a Restricted Participant's "Annual Compensation" multiplied by
the number of years between the Commencement Date and the date of
termination of the Plan, or between the Commencement Date and the date
benefits become payable if such date precedes termination of the Plan; or
(iii) in the event the Plan becomes subject to Title IV of
ERISA, an amount equal to the present value of the maximum benefit
guaranteed for the Participant by the Pension Benefit Guaranty Corporation
as described in Section 4022(b)(3) of ERISA. Such amount shall be
determined on the earlier of the date of termination of the Plan, or the
date benefits to a Restricted Participant become payable, in accordance
with regulations issued by the Pension Benefit Guaranty Corporation.
(d) In the event of a Plan termination, the benefit of any
Highly Compensated active or former Employee is limited to a benefit that
is nondiscriminatory under Section 401(a)(4) of the Code. Benefits
distributed to any of the twenty-five (25) most Highly Compensated active
and former Employees are restricted such that the annual payments are no
greater than an amount equal to the payment that would be made on behalf of
the Employee under a single life annuity that is the Actuarial Equivalent
of the sum of the Employee's retirement benefit and the Employee's other
benefits under the Plan.
- 2 -
142
The preceding paragraph shall not apply if after payment of the
benefit to an Employee described in the preceding paragraph, the value of
Plan assets equals or exceeds one hundred ten (110%) percent of the value
of current liabilities, as defined in Section 412(l)(7) of the Code, or the
value of the benefits for an Employee described above is less than one (1%)
percent of the value of current liabilities.
For purposes of this Section 12.05, benefit includes loans in
excess of the amount set forth in Section 72(p)(2)(A) of the Code, any
periodic income, any withdrawal values payable to a living Employee, and
any death benefits not provided for by insurance on the Employee's life.
(b) For purposes of this Section 12.05:
(i) "Annual Compensation" means annual average
Compensation for the period of five (5) consecutive Years of Service that
produces the highest average;
(ii) "Commencement Date" means the Original Effective
Date, or the effective date of any amendment to the Plan that substantially
increases benefits under the Plan, with a separate set of limitations to be
determined as of each such date; and
(iii) "Restricted Participant" means the Participant, if
the Participant's anticipated retirement benefit exceeds $1,500 and the
Participant is among the twenty-five (25) Participants entitled to the
highest Annual Compensation as of the Commencement Date.
(c) The foregoing limitations shall not restrict the payment
of the Participant's retirement benefit, if:
(i) in the case of annuity payments, the level amount of
annuity does not exceed the level amount of annuity payable under the
normal form of retirement benefit; or
(ii) in the case of a lump sum distribution, a written
agreement between the Participant and the Trustee guarantees the repayment
of the distribution that would be restricted if the Plan were terminated
within ten (10) years after the Commencement Date. Such agreement shall
require the Participant to provide "adequate security" for the guaranteed
repayment. For purposes of this paragraph (c)(ii), "adequate security"
means property having a fair market value at least equal to one hundred
twenty-five (125%) percent of the amount subject to repayment that is
deposited with an acceptable depository under an agreement providing that
if the market value of such property falls below one hundred ten (110%)
percent of the amount subject to repayment, the Participant will deposit
additional property necessary to bring the value of the property held by
the depository up to at least one hundred twenty-five (125%) percent of
such amount; or
(iii) in the case of termination of the Plan, Plan assets
are sufficient to pay each Participant who is not a Restricted Participant
the full amount of the Participant's retirement benefit accrued to the date
of Plan termination and to pay to each Restricted Participant the amount of
the retirement benefit as restricted by this Section 12.05.
(e) The foregoing limitations shall not restrict the payment
of any death benefit to any Beneficiary.
- 3 -
143
ARTICLE 13
MERGER OF PLAN AND TRANSFER OF ASSETS OR LIABILITIES
13.01 Merger or Transfer. The Plan shall not be merged or
consolidated with, nor shall any Plan assets or liabilities be transferred
to, any other plan, unless each Participant (if the other plan then
terminated) would receive a benefit that is equal to or greater than the
benefit he would have been entitled to receive immediately before the
merger, consolidation or transfer (if the Plan had then terminated).
13.02 Transfer from Trust. At a Participant's request and pursuant
to uniform rules prescribed by the Committee, the Committee may instruct
the Trustee to transfer the Participant's Account to another qualified plan
described in Code Section 401(a) in which the Participant is participating
at the time of such transfer.
13.03 Transfer to Trust and Transfer Account.
(a) At a Participant's request, the Committee shall instruct
the Trustee to accept a transfer of assets from another qualified plan
described in Section 401(a) of the Code which assets are attributable to
the Participant's interest in such other plan. The transferred amount
shall be maintained in the Trust Fund on behalf of the Participant as a
separate account under the Plan, designated the "Transfer Account."
(b) Any portion of the Transfer Account (whether the whole,
the lesser amount or none) may be commingled with other assets of the Trust
Fund for investment. In any event, the balance in the Transfer Account
shall be adjusted to reflect its proportionate share of the Trust Fund's
earnings, gains, losses and expenses.
(c) Unless the Participant has elected otherwise in the form
and manner prescribed by the Committee, payment of the Transfer Account
shall be made at the same time and in the same form as the retirement
benefit and shall be in addition to the retirement benefit.
(d) A Participant's interest in his Transfer Account shall be
at all times and in all events fully vested and nonforfeitable.
(e) The Participant's account will continue to retain all
rights and protections ascribed to it pursuant to Section 411(d)(6) of the
Code.
- 1 -
144
ARTICLE 14
SPECIAL PROVISIONS FOR NON-KEY EMPLOYEES
14.01 Effective Date. If the Plan is or becomes top heavy in any
Plan Year beginning after December 31, 1983, the provisions of this Section
will supersede any conflicting provisions in the Plan.
14.02 Determination of Top-Heavy and Super Top-Heavy Status. This
Plan is top heavy if any of the following conditions exists:
(a) If the top-heavy ratio for this Plan exceeds sixty (60%)
percent and this Plan is not part of any required aggregation group or
permissive aggregation group of plans.
(b) If this Plan is a part of a required aggregation group of
plans but not part of a permissive aggregation group and the top-heavy
ratio for the group of plans exceeds sixty (60%) percent.
(c) If this Plan is a part of a required aggregation group and
part of a permissive aggregation group of plans and the top-heavy ratio for
the permissive aggregation group exceeds sixty (60%) percent.
Top-heavy ratio:
(a) If the Company maintains one or more defined benefit plans
and the Company has not maintained any defined contribution plans which
during the five (5) year period ending on the determination date(s) has or
has had account balances, the top-heavy ratio for this Plan alone or for
the required or permissive aggregation group as appropriate is a fraction,
the numerator of which is the sum of the present value of retirement
benefits of all Key Employees as of the determination date(s) (including
any part of any retirement benefits distributed in the five (5) year period
ending on the determination date(s), and the denominator of which is the
sum of present value of retirement benefits (including any part of any
retirement benefits distributed in the five (5) year period ending on the
determination date(s)), both computed in accordance with Section 416 of the
Code and the regulations thereunder. Both the numerator and denominator of
the top-heavy ratio are increased to reflect any contribution not actually
made as of the determination date, but which is required to be taken into
account on that date under Section 416 of the Code and regulations
thereunder.
(b) If the Company maintains one or more defined contribution
plans and the Company maintains or has maintained one or more defined
benefit plans which during the five (5) year period ending on the determi-
nation date(s) has or has had any retirement benefits, the top-heavy ratio
for any required or permissive aggregation group as appropriate is a
fraction, the numerator of which is the sum of account balances under the
aggregated defined contribution plan or plans for all Key Employees,
determined in accordance with (a) above, and the present value of
retirement benefits under the aggregated defined benefit plan or plans for
all Key Employees as of the determination date(s), and the denominator of
which is the sum of the account balances under the aggregated defined
contribution plan or plans for all Participants, determined in accordance
with (a) above, and the present value of retirement benefits under the
defined benefit plan or plans for all Participants as of the determination
date(s), all determined in accordance with Section 416 of the Code and the
regulations thereunder. The retirement benefits under a defined benefit
plan in both the numerator and denominator of the top-heavy ratio are
increased for any distribution of a retirement benefit made in the five (5)
year period ending on the determination date.
- 1 -
145
(c) For purposes of (a) and (b) above the value of account
balances and the present value of retirement benefits will be determined as
of the most recent valuation date that falls within or ends with the twelve
(12) month period ending on the determination date, except as provided in
Section 416 of the Code and the regulations thereunder for the first and
second Plan Years of a defined benefit plan. The account balances and
retirement benefits of a Participant (1) who is not a Key Employee but who
was a Key Employee in a prior year, or (2) who has not been credited with
at least one Hour of Service with any Employer maintaining the Plan at any
time during the five (5) year period ending on the determination date will
be disregarded. The calculation of the top-heavy ratio, and the extend to
which distributions, rollovers, and transfers are taken into account will
be made in accordance with Section 416 of the Code and the regulations
thereunder. Deductible employee contributions will not be taken into
account for purposes of computing the top-heavy ratio. When aggregating
plans the value of account balances and retirement benefits will be
calculated with reference to the determination dates that fall within the
same calendar year.
The retirement benefit to a Participant other than a Key
Employee shall be determined under (a) the method, if any, that uniformly
applies for accrual purposes under all defined benefit plans maintained by
the Company, or (b) if there is no such method, as if such benefit accrued
not more rapidly than the slowest accrual rate permitted under the
fractional rule of Section 411(b)(1)(c) of the Code.
Permissive aggregation group: The required aggregation group
of plans plus other plan or plans of the Company which, when considered as
a group with the required aggregation group, would continue to satisfy the
requirements of Sections 401(a)(4) and 410 of the Code.
Required aggregation group: (1) Each qualified plan of the
Company in which at least one Key Employee participates or participated at
any time during the determination period (regardless of whether the Plan
has terminated), and (2) any other qualified plan of the Company which
enables a plan described in (1) to meet the requirements of Section
401(a)(4) or 410 of the Code.
Determination date: For any Plan Year subsequent to the first
Plan Year, the last day of the preceding Plan Year. For the first Plan
Year of the Plan, the last day of that year.
This Plan shall be a Super Top-Heavy Plan for any Plan Year
commencing after December 31, 1983, in which, as of the Determination Date,
(1) the Present Value of retirement benefits of Key Employees and (2) the
sum of the Aggregate Accounts of Key Employees under this Plan and all
plans of an Aggregation Group, exceeds ninety (90%) percent of the Present
Value of retirement benefits and the Aggregate Account of all Key and Non-
Key Employees under this Plan and all plans of an Aggregation Group.
14.03 Key Employee. Any Employee or former Employee (and the
beneficiaries of such Employee) who at any time during the determination
period was an officer of the Company if such individual's Annual
Compensation exceeds fifty (50%) percent of the dollar limitation under
Section 415(b)(1)(A) of the Code, an owner (or considered an owner under
Section 318 of the Code) of one of the ten (10) largest interests in the
Company if such individual's Compensation exceeds one hundred (100%)
percent of the dollar limitation under Section 415(c)(1)(A) of the Code, a
five (5%) percent owner of the Company, or a one (1%) percent owner of the
- 2 -
146
Company who has an Annual Compensation of more than One Hundred Fifty
Thousand Dollars ($150,000). Annual Compensation means compensation as
defined in Section 415(c)(3) of the Code, but including amounts contributed
by the Company pursuant to a salary reduction agreement which are
excludable from the Employee's gross income under Section 125, Section
402(a)(8), Section 402(h) or Section 403(b) of the Code. The determination
date is the Plan Year containing the determination date and the four (4)
preceding Plan Years.
The determination of who is a Key Employee will be made in
accordance with Section 416(i)(1) of the Code and the regulations
thereunder. A Non-Key Employee means any Employee or former Employee (and
his Beneficiaries) who is not a Key Employee.
14.04 Minimum Benefit.
(a) Notwithstanding any other provision in this Plan to the
contrary, except as otherwise provided in Subsections (c), (d) and (e) of
this Section 14.04, a Participant who is not a Key Employee and has
completed one thousand (1,000) Hours of Service will accrue a benefit (to
be provided solely by Company contributions and expressed as a Life Annuity
commencing at Normal Retirement Age) of not less than two (2%) percent of
his or her highest average Compensation for the five (5) consecutive years
for which the Participant had the highest Compensation. The aggregate
Compensation for the years during such five (5) year period in which the
Participant was credited with a Year of Service will be divided by the
number of years in order to determine average Annual Compensation. The
minimum accrual is determined without regard to any Social Security
contribution. The minimum accrual applies even though under other Plan
provisions the Participant would not otherwise be entitled to receive an
accrual, or would have received a lesser accrual for the year because (i)
the Non-Key Employee fails to make mandatory contributions to the Plan,
(ii) the Non-Key Employee's Compensation is less than a stated amount,
(iii) the Non-Key Employee is not employed on the last day of the accrual
computation period, or (iv) the Plan is integrated with Social Security.
(b) For purposes of computing the minimum retirement benefit,
Compensation shall mean Compensation as defined in Section 1.11 of the Plan.
(c) No additional benefit accruals shall be provided pursuant to
(a) above to the extent that the total accruals on behalf of the Participant
attributable to Company contributions will provide a benefit expressed as a
Life Annuity commencing as Normal Retirement Age that equals or exceeds twenty
(20%) percent of the Participant's highest average Compensation for the five
(5) consecutive years for which the Participant had the highest Compensation.
(d) The provision in Subsection (a) of this Section 14.04
shall not apply to any Participant to the extent the Participant is covered
under any other plan or plans of the Company. Such other plan or plans
must provide a minimum two (2%) percent top-heavy Benefit Accrual or a five
(5%) percent top-heavy contribution.
(e) All accruals of employer-derived benefits, whether or not
attributable to years for which the Plan is top heavy, may be used in
computing whether the minimum accrual requirements of Subsection (c) of
this Section 14.04 are satisfied.
- 3 -
147
14.05 Minimum Vesting. For any Plan Year in which this Plan is top
heavy, the following vesting schedule shall automatically apply to this
Plan. The vesting schedule applies to all benefits within the meaning of
Section 411(a)(7) of the Code except those attributable to employee
contributions, including benefits accrued before the effective date of
Section 416 and benefits accrued before the Plan became top heavy.
Further, no reduction in vested benefits may occur in the event the Plan's
status as top heavy changes for any Plan Year. However, this Section does
not apply to the account balances of any Employee who does not have an Hour
of Service after the Plan has initially become top heavy and such
Employee's account balance attributable to Company contributions and
forfeitures will be determined without regard to this Section.
VESTING NONFORFEITABLE
YEARS OF SERVICE PERCENTAGE OF ACCOUNT
---------------- ---------------------
Less than 3 0%
3 or more 100%
- 4 -
148
ARTICLE 15
GENERAL PROVISIONS
15.01 Trust Fund Sole Source of Payments for Plan. The Trust Fund
shall be the sole source for the payment of all Participant's retirement
benefits. In no event shall assets of the Company be applied for the
payment of Plan benefits.
15.02 Exclusive Benefit. The Plan is established for the exclusive
benefit of the Participants and their Beneficiaries, and the Plan shall be
administered in a manner consistent with the provisions of Section 401(a)
of the Code and of ERISA.
15.03 Binding Effect. This Agreement shall be binding upon the
heirs, executors, administrators, successors and assigns of the parties to
this Agreement and upon any and all persons interested in this Agreement,
presently or in the future.
15.04 Nonalienation. Except as is permitted under Section 401(a)
(13) of the Code in the case of a qualified domestic relations order as
defined in Section 414(p) of the Code, no Participant or Beneficiary shall
have the right to alienate or assign his benefits under the Plan, and no
Plan benefits shall be subject to attachment, execution, garnishment, or
other legal or equitable process. If a Participant or his Beneficiary
attempts to alienate or assign his benefits under the Plan, or if his
property or estate should be subject to attachment, execution, garnishment
or other legal or equitable process, the Committee may direct the Trustee
to distribute the Participant's (or Beneficiary's) benefits under the Plan
to members of his family, or may use or hold such benefits for his benefit
or for the benefit of members of his family as the Committee deems
appropriate under the circumstances.
15.05 Claims Procedure. All claims for benefits under the Plan by a
Participant not covered under a collective bargaining agreement or his
Beneficiary with respect to benefits not received by such person shall be
made in writing to the Committee, which shall designate one of its members
to review such claims. If the reviewing member believes that a claim
should be denied, he shall notify the claimant in writing of the denial
within ninety (90) days after his receipt of the claim, unless special cir-
cumstances require an extension of time for processing the claim. Such
notice shall:
(a) set forth the specific reasons for the denial, making
reference to the pertinent provisions of the Plan or the Plan documents on
which the denial is based;
(b) describe any additional material or information that
should be received before the claim may be acted upon favorably, and
explain why such material or information, if any, is needed; and
(c) inform the person making the claim of his right pursuant
to this Section to request review of the decision by the Committee.
Any such person who believes that he has submitted all
available and relevant information may appeal the denial of a claim to the
Committee by submitting a written request for review to the Committee
within sixty (60) days after the date on which such denial is received.
Such period may be extended by the Committee for good cause.
- 1 -
149
The person making the request for review may examine pertinent Plan documents.
The request for review may discuss any issues relevant to the claim.
The Committee shall decide whether or not to grant the claim within sixty (60)
days after receipt of the request for review, but this period may be
extended by the Committee for up to an additional sixty (60) days in
special circumstances. If such an extension of time for review is required
because of special circumstances, written notice of the extension shall be
furnished to the claimant prior to the commencement of the extension. The
Committee's decision shall be in writing, shall include specific reasons
for the decision and shall refer to pertinent provisions of the Plan or of
the Plan documents on which the decision is based.
All claims for benefits under the Plan by a Participant covered
under a collective bargaining agreement, or his Beneficiary, who has been
denied a benefit, or feels aggrieved by any other act of the Board of
Administration, shall be entitled to request a hearing before the Board of
Administration of the Plan. Such request, together with a written
statement of the claimant's position, shall be filed with the Board of
Administration no later than ninety (90) days after receipt of the written
notification. The Board of Administration shall schedule an opportunity
for a full and fair hearing of the issue within the next sixty (60) days.
The decision following such hearing shall be made within sixty (60) days
and shall be communicated in writing to the claimant. The decision of the
Board of Administration shall be final and binding upon all parties
concerned. In the event the Board of Administration cannot reach a
majority decision, an impartial chairman shall be appointed by the Board of
Administration.
15.06 Location of Participant or Beneficiary Unknown. In the event
that all, or any portion, of the distribution payable to a Participant or
his Beneficiary hereunder shall, at the expiration of five (5) years after
it shall become payable, remain unpaid solely by reason of the inability of
the Committee, after sending a registered letter, return receipt requested,
to the last known address, and after further diligent effort, to ascertain
the whereabouts of such Participant or his Beneficiary, the amount so dis-
tributable shall be forfeited and shall be used to reduce the cost of the
Plan. In the event a Participant or Beneficiary is located subsequent to
his benefit being forfeited, such benefit shall be restored.
15.07 Applicable Law. Except as otherwise expressly required by
ERISA, this Agreement shall be governed by the laws of the State of New
Jersey, where it was entered into and where it shall be enforced.
15.08 Rules of Construction. Whenever the context so admits, the use
of the masculine gender shall be deemed to include the feminine and vice
versa; either gender shall be deemed to include the neuter and vice versa;
and the use of the singular shall be deemed to include the plural and vice
versa.
- 2 -
150
IN WITNESS WHEREOF, the Company has caused this instrument to
be executed by an officer duly authorized on this day of
, 1994.
ATTEST: CURTISS-WRIGHT CORPORATION
______________________________ By:___________________________
, Secretary David Lasky, President
- 3 -
151
SCHEDLUE A
CURTISS-WRIGHT CORPORATION RETIREMENT PLAN
EARLY RETIREMENT FACTORS ON OR AFTER 9/l/94
ALL RETIREES AND TERMINATED NON-UNION
EMPLOYEES ON AND AFTER 9/l/94
Age 55 56 57 58 59 60 61 62 63 64
0/12 .75000 .78000 .81000 .84000 .87000 .90000 .92000 .94000 .96000 .98000
1/12 .75250 .78250 .81250 .84250 .87250 .90167 .92167 .94167 .96167 .98167
2/12 .75500 .78500 .81500 .84500 .87500 .90333 .92333 .94333 .96333 .98333
3/12 .75750 .78750 .81750 .84750 .87750 .90500 .92500 .94500 .96500 .98500
4/12 .76000 .79000 .82000 .85000 .88000 .90667 .92667 .94667 .96667 .98667
5/12 .76250 .79250 .82250 .85250 .88250 .90833 .92833 .94833 .96833 .98833
6/12 .76500 .79500 .82500 .85500 .88500 .91000 .93000 .95000 .97000 .99000
7/12 .76750 .79750 .82750 .85750 .88750 .91167 .93167 .95167 .97167 .99167
8/12 .77000 .80000 .83000 .86000 .89000 .91333 .93333 .95333 .97333 .99333
9/12 .77250 .80250 .83250 .86250 .89250 .91500 .93500 .95500 .97500 .99500
10/12 .77500 .80500 .83500 .86500 .89500 .91667 .93667 .95667 .97667 .99667
11/12 .77750 .80750 .83750 .86750 .89750 .91833 .93833 95833 .97833 .99833
Rule of 80
If the sum of your age and years of credited service exceed 80, 1% will be added to your early retirement factor. No
more than 100% of your benefit will be payable.
152
SCHEDULE B
RETIREMENT PLAN RATES RATES CURRENTLY IN FORCE
BUFFALO FACILITY
$ 8.00 per month per year of credited service prior to 1/1/78
$10.00 per month per year of credited service from 1/1/78 thru 11/1/80
$11.00 per month per year of credited service from 1/2/80 thru 11/1/81
$12.00 per month per year of credited service from 11/2/81 thru 5/3/85
$13.00* per month per year of credited service from 5/4/85 thru 7/23/93
$17.00* per month per year of credited service from 7/24/93
FLIGHT SYSTEMS
$ 6.25 per month per year of credited service
TARGET ROCK
$ 9.00 per month per year of credited service prior to 5/l/77
$10.00 per month per year of credited service from 5/l/77 thru 4/30/81
$11.00 per month per year of credited service from 5/l/81 thru 5/4/82
$12.00 per month per year of credited service from 5/5/82 thru 5/6/84
$13.00 per month per year of credited service from 5/7/84 thru 5/5/85
$14.00 per month per year of credited service from 5/6/85 thru 5/4/86
$15.00 per month per year of credited service from 5/5/86
CORPORATE
$10.00 per month per year of credited service
*Does not apply to Local 212
153
SCHEDULE C
CURTISS-WRIGHT CORPORATION RETIREMENT PLAN
EARLY RETIREMENT FACTORS
EARLY RETIREMENT FACTORS FOR DEFERRED VESTED EMPLOYEES
WHO LEFT EMPLOYMENT PRIOR TO 9/l/94 AND PRIOR To AGE 55
(CONTRIBUTORS)
Age 55 56 57 58 59 60 61 62 63 64
0/12 .50000 .53333 .56667 .60000 .63333 .66667 .73333 .80000 .86667 .93333
1/12 .50278 .53611 .56945 .60278 .63611 .67222 .73889 .80556 .87222 .93889
2/12 .50556 .53889 .57222 .60556 .63889 .67778 .74444 .81111 .87778 .94444
3/12 .50833 .54167 .57500 .60833 .64167 .68333 .75000 .81667 .88333 .95000
4/12 .51111 .54445 .57778 .61111 .64445 .68889 .75556 .82222 .88889 .95556
5/12 .51389 .54722 .58056 .61389 .64722 .69444 .76111 .82778 .89444 .96111
6/12 .51667 .55000 .58333 .61667 .65000 .70000 .76667 .83333 .90000 .96667
7/12 .51944 .55278 .58611 .61944 .65278 .70556 .77222 .83889 .90556 .97222
8/12 .52222 .55556 .58889 .62222 .65556 .71111 .77778 .84444 .91111 .97778
9/12 .52500 .55833 .59167 .62500 .65833 .71667 .78333 .85000 .91667 .98333
10/12 .52778 .56111 .59444 .62778 .66111 .72222 .78889 .85556 .92222 .98889
11/12 .53056 .56389 .59722 .63056 .66389 .72778 .79444 .86111 .92778 .99444
154
SCHEDULE D
THE CURTISS-WRIGHT CORPORATION RETIREMENT PLAN
FOR COMMENCEMENT OF ALL DEFERRED PENSIONS ONLY
EFFECTIVE DATE OF FACTOR SEPTEMBER 30, 1965
Age of Retired Employee
-----------------------------------------------------------------------------------------
Twelfths
of year 55 56 57 58 59 60 61 62 63 64
0/12 28.0% 35.2% 42.4% 49.6% 56.8% 64.0% 71.2% 78.4% 85.6% 92.8%
1/12 28.6 35.8 43.0 50.2 57.4 64.6 71.8 79.0 86.2 93.4
2/12 29.2 36.4 43.6 50.8 58.0 65.2 72.4 79.6 86.8 94.0
3/12 29.8 37.0 43.2 51.4 58.6 65.8 73.0 80.2 87.4 94.6
4/12 30.4 37.6 44.8 52.0 59.2 66.4 73.6 80.8 88.0 95.2
5/12 31.0 38.2 45.4 52.6 59.8 67.0 74.2 81.4 88.6 95.8
6/12 31.6 38.8 46.0 53.2 60.4 67.6 74.8 82.0 89.2 96.4
7/12 32.2 39.4 46.6 53.8 61.0 68.2 75.4 82.6 89.8 97.0
8/12 32.8 40.0 47.2 54.4 61.6 68.8 76.0 83.2 90.4 97.6
9/12 33.4 40.6 47.8 55.0 62.2 69.4 76.6 83.8 91.0 98.2
10/01 34.0 41.2 48.4 55.6 62.8 70.0 77.2 84.4 91.6 98.8
11/12 34.6 41.8 49.0 56.2 63.4 70.6 77.8 85.0 92.2 99.4
*NOTE: Factors are for non-union non-contributors who terminated
employment prior to 9/1/94 and prior to attaining age 55; factors are for
union employees who terminate prior to age 55.
155
SCHEDULE E
JOINT AND BENEFICIARY FACTORS
(Partial List of Factors)
PENSIONER BENEFICIARY
100% 50% 75% 66%
MEN WOMEN MEN WOMEN
65 0 0 35 0.6491 0.7872 0.7115 0.7350
65 0 0 36 0.6518 0.7892 0.7139 0.7373
65 0 0 37 0.6546 0.7912 0.7164 0.7397
65 0 0 38 0.6575 0.7934 0.7191 0.7423
65 0 0 39 0.6607 0.7956 0.7219 0.7449
65 0 0 40 0.6640 0.7981 0.7249 0.7477
65 0 0 41 0.6675 0.0006 0.7280 0.7507
65 0 0 42 0.6711 0.8032 O.T312 0.7537
65 0 0 43 0.6749 0.8059 0.7347 O.7569
65 0 0 44 0.6790 0.8088 0.7382 0.7603
65 0 0 45 0.6832 0.8117 O.7419 0.7638
65 0 0 46 0.6876 0.8148 0.7458 0.7675
65 0 0 47 0.6922 0.8181 0.7499 0.7713
65 0 0 48 0.6969 0.8214 0.7541 0.7753
65 0 0 49 0.7019 0.8249 0.7585 0.7794
65 0 0 50 0.7072 0.8285 0.7630 0.7836
65 0 0 51 0.7125 0.8321 0.7677 0.7881
65 0 0 52 0.7182 0.8359 0.7726 0.7926
65 0 0 53 0.7239 0.8399 0.7776 0.7973
65 0 0 54 0.7299 0.8438 0.7828 0.8021
65 0 0 55 0.7361 0.8480 0.7881 0.8071
65 0 0 56 0.7424 0.8521 0.7935 0.8122
65 0 0 57 0.7490 0.8565 0.7991 0.8174
65 0 0 58 0.7557 0.8609 0.8048 0.8227
65 0 0 59 0.7626 0.8653 0.8107 0.8282
65 0 0 60 0.7697 0.8699 0.8167 0.8337
65 0 0 61 0.7769 0.8744 0.8227 0.8393
65 0 0 62 0.7842 0.8790 0.8289 0.8450
65 0 0 63 0.7917 0.8837 0.8352 0.8508
65 0 0 64 0.7993 0.8884 0.8415 0.8566
65 0 0 65 0.8070 0.8931 0.8479 0.8624
65 0 0 66 0.8147 0.8979 0.8543 0.8683
65 0 0 67 0.8225 0.9026 0.8607 0.8742
65 0 0 68 0.8302 0.9073 0.8671 0.8801
65 0 0 69 0.8380 0.9118 0.8734 0.8858
65 0 0 70 0.8458 0.9164 0.8797 0.8916
65 0 0 71 0.8535 0.9210 0.8859 0.8973
65 0 0 72 0.8611 0.9254 0.8920 0.9029
65 0 0 73 0.8687 0.9297 0.8982 0.9084
65 0 0 74 0.8761 0.9339 0.9041 0.9138
65 0 0 75 0.8834 0.9381 0.9099 0.9191
156
SCHEDULE F
THE CURTISS-WRIGHT CORPORATION RETIREMENT PLAN
EARLY RETIREMENT - % OF NORMAL PENSION
PAYABLE AT EARLY RETIREMENT DATE*
EFFECTIVE DATE OF FACTOR SEPTEMBER 30, 1965
UNION EMPLOYEES
Age of Retired Employee
Twelfths
of Year 55 56 57 58 59 60 61 62 63 64
0/12 58.00% 63.40% 68.80% 74.20% 79.60% 85.00% 88.00% 91.00% 94.00% 97.00%
1/12 58.45 63.85 69.25 74.65 80.05 85.25 88.25 91.25 94.25 97.25
2/12 58.90 64.30 69.70 75.10 80.50 85.50 88.50 91.50 94.50 97.50
3/12 59.35 64.75 70.15 75.55 80.95 85.75 88.75 91.75 94.75 97.75
4/12 59.80 65.20 70.60 76.00 81.40 86.00 89.00 92.00 95.00 98.00
5/12 60.25 65.65 71.05 76.45 81.85 86.25 89.25 92.25 95.25 98.25
6/12 60.70 66.10 71.50 76.90 82.30 86.50 89.50 92.50 95.50 98.50
7/12 61.15 66.55 71.95 77.35 82.75 86.75 89.75 92.75 95.75 98.75
8/12 61.60 67.00 72.40 77.80 83.20 87.00 90.00 93.00 96.00 99.00
9/12 62.05 67.45 72.85 78.25 83.65 87.25 90.25 93.25 96.25 99.25
10/12 62.50 67.90 73.30 78.70 84.10 87.50 90.50 93.50 96.50 99.50
11/12 62.95 68.35 73.75 79.15 84.55 87.75 90.75 93.75 96.75 99.75
*NOTE: Early Retirement Pensions calculated per this table are subject to
an increase of 2/10 of 1% for each 1/10 year of credited service in excess
of 20.0 years up to a maximum increase of 30% provided, however, that the
total Early Retirement Pension shall not be an amount greater than the
normal pension.
157
SCHEDULE G
WOOD-RIDGE DEFERRED PENSION RATES
The monthly amount of such deferred pension commencing at age 65 for an
employee eligible therefore in accordance with paragraph 13 shall be as
follows:
1. For any such employee whose loss of credited service is prior to
September 30, 1962, $2.25 multiplied by his years of credited service.
2. For any such employee whose loss of credited service is on or after
September 30, 1962 and prior to September 30, 1965, $2.75 multiplied by his
years of credited service.
3. For any such employee whose loss of credited service is on or after
September 30, 1965 and prior to September 30,1968, $4.25 multiplied by his
years of credited service.
4. For any such employee whose loss of credited service is on or after
September 30, 1968 and prior to September 30, 1969, $5.25 multiplied by his
years of credited service.
5. For any such employee whose loss of credited service is on or after
September 30, 1969 and prior to September 30, 1970, $5.75 multiplied by his
years of credited service.
6. For any such employee whose loss of credited service is on or after
September 30, 1970 and prior to September 30, 1971, $6.25 multiplied by his
years of credited service.
7. For any such employee whose credited service was with the Wood-Ridge or
Nuclear Facilities and whose loss of credited service on or after September
30, 1971 and prior to September 30, 1974, $8.00 multipled by his years of
credited service.
8. For any such employee whose credited service was with the Wood-Ridge or
Nuclear Facilities and whose loss of credited servie is on or after September
30, 1974 and prior to September 30, 1976, $9.00 multiplied by his years of
credited service.
9. For any such employee whose credited service was with the Wood-Ridge or
Nuclear Facilities and whose loss of credited service on or after September
30, 1976, $10.00 multiplied by his years of credited service.
- 1 -
158
SCHEDULE G
BUFFALO DEFERRED PENSION RATES
The monthly amount of such deferred pension commencing at age 65 for an
employee eligible therefore in accordance with paragraph 13 shall be as
follows:
1 For any such employee whose loss of credited service is prior to
September 30, 1962, $2.25 multiplied by his years of credited service.
2. For any such employee whose loss of credited service is on or after
September 30, 1962 and prior to September 30, 1965, $2.75 multiplied by his
years of credited service.
3. For any such employee whose loss of credited service is on or after
September 30, 1965 and prior to September 30, 1968, $4.25 multiplied by his
years of credited service.
4. For any such employee whose loss of credited service is on or after
September 30, 1968 and prior to September 30, 1969, $5.25 multiplied by his
years of credited service.
5. For any such employee whose loss of credited service is on or after
September 30, 1969 and prior to September 30, 1970, $5.75 multiplied by his
years of credited service.
6. For any such employee whose loss of credited service is on or after
September 30, 1970 and prior to September 30, 1971, $6.25 multiplied by his
years of credited service.
7. For any such employee whose credited service was with the Buffalo
Facility and whose loss of credited service is either:
a. On or after September 30, 1971 and prior to September 30, 1973, the
sum of $6.25 multiplied by his years of credited service prior to January 1,
1972 and $7.00 multiplied by his years of credited service;
b. On or after September 30, 1973, the sum of $6.50 multiplied by his
years of credited service prior to January 1, 1972 and $7.00 multiplied by
his years of credited service on or after January 1, 1972;
c. On or after September 30, 1974, the sum of $7.00 multiplied by his
years of credited service prior to January 1, 1972 and $8.00 multiplied by
his years of credited service on or after January 1, 1972;
- 2 -
159
d. On or after September 30, 1975, $8.00 multiplied by his years of credited
service;
e. On or after October 31, 1977 and prior to October 30, 1978, the sum of
$8.00 multiplied by his years of credited service prior January 1, 1978 and
$9.00 multiplied by his years of credited service on and after January 1,
1978; or
f. On or after October 31, 1978 and prior to November 2, 1980, the sum of
$8.00 multiplied by his years of credited service prior January 1, 1978 and
$10.00 multiplied by his years of credited service on or after January 1,
1978; or
g. On or after November 2, 1980, the sum of
$8.00 multiplied by his years of credited service prior to January 1, 1978;
and
$10.00 multiplied by his years of credited service prior to January 1, 1978
through November 1, 1980; and
$11.00 multiplied by his years of credited service from November 2, 1980
through November 1, 1981; and
$12.00 multiplied by his years of credited service from November 2, 1981
through May 3, 1985; and
$13.00 multiplied by his years of credited service from May 4, 1985
through July 23, 1993; and
$17.00 multiplied by his years of credited service on and after July 24,1993.
- 3 -
160
SCHEDULE G
CURTISS-WRIGHT FLIGHT SYSTEMS
DEFERRED PENSION RATES
The monthly amount of such deferred pension commencing at age 65 for an
employee eligible therefore in accordance with paragraph 14 shall be as
follows:
1. For any such employee whose loss of credited service is prior to September
30, 1962, $2.25 multiplied by his years of credited service.
2. For any such employee whose loss of credited service is on or after
September 30, 1962 and prior to September 30, 1965, $2.75 multiplied by his
years of credited service.
3. For any such employee whose loss of credited service is on or after
September 30, 1965 and prior to September 30, 1968, $4.25 multiplied by his
years of credited service.
4. For any such employee whose loss of credited service is on or after
September 309 1968 and prior to September 30, 1969, $5.25 multiplied by his
years of credited service.
5. For any such employee whose loss of credited service is on or after
September 309 1969 and prior to September 30, 1970, $5.75 multiplied by his
years of credited service.
6. For any such employee whose loss of credited service is on or after
September 30, 1970 and prior to September 30, 1971, $6.25 multiplied by his
years of credited service.
7. For any such employee whose loss of credited service is on or after
September 30, 1971, $6.25 multiplied by his years of credited service.
- 4 -
161
SCHEDULE G
TARGET ROCK CORPORATION
DEFERRED PENSION RATES
The monthly amount of such deferred pension commencing at age 65 for an
employee eligible therefore in accordance with paragraph 14 shall be as
follows:
1. For any such employee whose loss of credited service is on or after June
1, 1967 and prior to September 30, 1968, $4.25 multiplied by his years of
credited service.
2. For any such employee whose loss of credited service is on or after
September 30, 1968 and prior to September 30, 1969, $5.25 multiplied by his
years of credited service.
3. For any such employee whose loss of credited service is on or after
September 30, 1969 and prior to September 30, 1970, $5.25 multiplied by his
years of credited service.
4. For any such employee whose loss of credited service is on or after
September 30, 1970 and prior to September 30, 1971, $6.25 multiplied by his
years of credited service.
5. For any such employee whose credited service was at the Target Rock
Corporation and whose loss of credited service is on or after September 30,
1971, and prior to June 1, 1975, $8.00 multiplied by his years of credited
service.
6. For any such employee whose credited service was at the Target Rock
Corporation and whose loss of credited service is on or after June 1, 1975,
and prior to May 1, 1977, $9.00 multiplied by his years of credited service.
7. For any such employee whose credited service was with Target Rock
Corporation and whose loss of credited service is on or after May 1, 1977,
the sum of:
$9.00 multiplied by his years of credited service prior to May 1, 1977;
$10.00 multiplied by his years of credited servicefrom May 1, 1977 to May
1, 1981;
$11.00 multiplied by his years of credited service from May 1, 1981 to May
1, 1982;
$12.00 multiplied by his years of credited service from May 1, 1982 to May
1 1984;
$13.00 multiplied by his years of credited service from May 1, 1984 to May
1 1985;
$14.00 multiplied by his years of credited service from May 1, 1985 to May
1, 1986;
$15.00 multiplied by his years of credited service on or after May 1, 1986.
- 5 -
162
EXHIBIT (10) (vii)
CURTISS-WRIGHT CORPORATION
SAVINGS AND INVESTMENT PLAN
Amended and Restated
As of January 1, 1989
And As Further Amended Through March 1, 1995
163
CURTISS-WRIGHT CORPORATION
SAVINGS AND INVESTMENT PLAN
TABLE OF CONTENTS
Page
ARTICLE 1. DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . 1
1.01 "Accounts". . . . . . . . . . . . . . . . . . . . . . . 1
1.02 "Actual Deferral Percentage". . . . . . . . . . . . . . 1
1.03 "Adjustment Factor" . . . . . . . . . . . . . . . . . . 2
1.04 "Affiliated Employer" . . . . . . . . . . . . . . . . . 2
1.05 "After-Tax Contributions" . . . . . . . . . . . . . . . 2
1.06 "Annual Dollar Limit" . . . . . . . . . . . . . . . . . 2
1.07 "Annuity Starting Date" . . . . . . . . . . . . . . . . 3
1.08 "Beneficiary" . . . . . . . . . . . . . . . . . . . . . 3
1.09 "Board of Directors". . . . . . . . . . . . . . . . . . 3
1.10 "Code". . . . . . . . . . . . . . . . . . . . . . . . . 3
1.11 "Committee" . . . . . . . . . . . . . . . . . . . . . . 3
1.12 "Compensation". . . . . . . . . . . . . . . . . . . . . 3
1.13 "Contribution Percentage" . . . . . . . . . . . . . . . 4
1.14 "Deferred Account". . . . . . . . . . . . . . . . . . . 5
1.15 "Deferred Cash Contributions" . . . . . . . . . . . . . 5
1.16 "Disability". . . . . . . . . . . . . . . . . . . . . . 5
1.17 "Earnings". . . . . . . . . . . . . . . . . . . . . . . 5
1.18 "Effective Date". . . . . . . . . . . . . . . . . . . . 5
1.19 "Employee". . . . . . . . . . . . . . . . . . . . . . . 5
1.20 "Employer". . . . . . . . . . . . . . . . . . . . . . . 6
1.21 "Employer Account". . . . . . . . . . . . . . . . . . . 6
1.22 "Enrollment Date" . . . . . . . . . . . . . . . . . . . 6
1.23 "ERISA" . . . . . . . . . . . . . . . . . . . . . . . . 6
1.24 "Fund" or "Investment Fund" . . . . . . . . . . . . . . 6
1.25 "Group Annuity Contract". . . . . . . . . . . . . . . . 6
1.26 "Highly Compensated Employee" . . . . . . . . . . . . . 6
1.27 "Hour of Service" . . . . . . . . . . . . . . . . . . . 8
1.28 "Insurer" . . . . . . . . . . . . . . . . . . . . . . . 9
1.29 "Leased Employee" . . . . . . . . . . . . . . . . . . . 9
1.30 "Matching Contributions". . . . . . . . . . . . . . . . 9
1.31 "Member". . . . . . . . . . . . . . . . . . . . . . . . 9
1.32 "Member Account". . . . . . . . . . . . . . . . . . . . 10
1.33 "Plan". . . . . . . . . . . . . . . . . . . . . . . . . 10
1.34 "Plan Year" . . . . . . . . . . . . . . . . . . . . . . 10
1.35 "Rollover Contributions". . . . . . . . . . . . . . . . 10
1.36 "Severance Date". . . . . . . . . . . . . . . . . . . . 10
164
1.37 "Spousal Consent" . . . . . . . . . . . . . . . . . . . 10
1.38 "Statutory Compensation". . . . . . . . . . . . . . . . 11
1.39 "Subsidiary". . . . . . . . . . . . . . . . . . . . . . 11
1.40 "Trust" or "Trust Fund" . . . . . . . . . . . . . . . . 11
1.41 "Trustees". . . . . . . . . . . . . . . . . . . . . . . 12
1.42 "Valuation Date". . . . . . . . . . . . . . . . . . . . 12
1.43 "Vested Portion". . . . . . . . . . . . . . . . . . . . 12
1.44 "Vesting Service" . . . . . . . . . . . . . . . . . . . 12
1.45 "Year of Eligibility Service" . . . . . . . . . . . . . 13
ARTICLE 2. ELIGIBILITY AND MEMBERSHIP . . . . . . . . . . . . . . . . . 14
2.01 Eligibility . . . . . . . . . . . . . . . . . . . . . . 14
2.02 Membership. . . . . . . . . . . . . . . . . . . . . . . 14
2.03 Reemployment of Former Employees and
Former Members. . . . . . . . . . . . . . . . . . . . 14
2.04 Termination of Membership . . . . . . . . . . . . . . . 14
2.05 Year-end Membership List. . . . . . . . . . . . . . . . 15
ARTICLE 3. CONTRIBUTIONS. . . . . . . . . . . . . . . . . . . . . . . . 16
3.01 Deferred Cash Contributions . . . . . . . . . . . . . . 16
3.02 After-Tax Contributions . . . . . . . . . . . . . . . . 17
3.03 Employer Matching Contributions . . . . . . . . . . . . 18
3.04 Employee or Member Rollover Contributions . . . . . . . 18
3.05 Change in Contributions . . . . . . . . . . . . . . . . 19
3.06 Suspension of Contributions . . . . . . . . . . . . . . 19
3.07 Actual Deferral Percentage Test . . . . . . . . . . . . 19
3.08 Contribution Percentage Test. . . . . . . . . . . . . . 21
3.09 Aggregate Contribution Limitation . . . . . . . . . . . 22
3.10 Additional Discrimination Testing Provisions. . . . . . 22
3.11 Maximum Annual Additions. . . . . . . . . . . . . . . . 25
3.12 Return of Contributions . . . . . . . . . . . . . . . . 30
ARTICLE 4. INVESTMENT OF CONTRIBUTIONS. . . . . . . . . . . . . . . . . 31
4.01 Investment Funds. . . . . . . . . . . . . . . . . . . . 31
4.02 Investment of Members' Accounts . . . . . . . . . . . . 33
4.03 Responsibility for Investments. . . . . . . . . . . . . 33
4.04 Change of Election for Current and
Future Contributions. . . . . . . . . . . . . . . . . 33
4.05 Reallocation of Accounts Among the Funds. . . . . . . . 33
4.06 Limitations Imposed by Contract . . . . . . . . . . . . 34
166
ARTICLE 5. VALUATION OF THE ACCOUNTS. . . . . . . . . . . . . . . . . . 35
5.01 Computation of Trust Fund or Group
Annuity Contract. . . . . . . . . . . . . . . . . . . 35
5.02 Valuation of Member Accounts. . . . . . . . . . . . . . 36
5.03 Right to Change Procedures. . . . . . . . . . . . . . . 37
5.04 Statement of Accounts . . . . . . . . . . . . . . . . . 37
ARTICLE 6. VESTED PORTION OF ACCOUNTS . . . . . . . . . . . . . . . . . 38
6.01 Member Account and Deferred Account . . . . . . . . . . 38
6.02 Employer Account. . . . . . . . . . . . . . . . . . . . 38
6.03 Disposition of Forfeitures. . . . . . . . . . . . . . . 38
ARTICLE 7. WITHDRAWALS WHILE STILL EMPLOYED . . . . . . . . . . . . . . 40
7.01 Withdrawal of After-Tax Contributions . . . . . . . . . 40
7.02 Withdrawal of Employer Contributions. . . . . . . . . . 41
7.03 Withdrawal After Age 59 1/2 . . . . . . . . . . . . . . 41
7.04 Hardship Withdrawal . . . . . . . . . . . . . . . . . . 42
7.05 Procedures and Restrictions . . . . . . . . . . . . . . 46
7.06 Determination of Vested Portion of
Employer Account. . . . . . . . . . . . . . . . . . . 46
ARTICLE 8. LOANS TO MEMBERS . . . . . . . . . . . . . . . . . . . . . . 48
8.01 Amount Available. . . . . . . . . . . . . . . . . . . . 48
8.02 Terms . . . . . . . . . . . . . . . . . . . . . . . . . 48
ARTICLE 9. DISTRIBUTION OF ACCOUNTS UPON TERMINATION
OF EMPLOYMENT. . . . . . . . . . . . . . . . . . . . 51
9.01 Eligibility . . . . . . . . . . . . . . . . . . . . . . 51
9.02 Form of Distribution. . . . . . . . . . . . . . . . . . 51
9.03 Date of Payment of Distribution . . . . . . . . . . . . 51
9.04 Age 70 1/2 Required Distribution . . . . . . . . . . . 52
9.05 Status of Accounts Pending Distribution . . . . . . . . 53
9.06 Proof of Death and Right of Beneficiary
or Other Person . . . . . . . . . . . . . . . . . . . 53
9.07 Distribution Limitation . . . . . . . . . . . . . . . . 53
9.08 Direct Rollover of Certain Distributions. . . . . . . . 53
ARTICLE 10. ADMINISTRATION OF PLAN. . . . . . . . . . . . . . . . . . . 55
10.01 Appointment of Administration Committee . . . . . . . . 55
10.02 Duties of Committee . . . . . . . . . . . . . . . . . . 55
10.03 Individual Accounts . . . . . . . . . . . . . . . . . . 56
10.04 Meetings. . . . . . . . . . . . . . . . . . . . . . . . 56
166
10.05 Action of Majority. . . . . . . . . . . . . . . . . . . 56
10.06 Compensation and Bonding. . . . . . . . . . . . . . . . 56
10.07 Establishment of Rules. . . . . . . . . . . . . . . . . 56
10.08 Prudent Conduct . . . . . . . . . . . . . . . . . . . . 57
10.09 Service in More Than One Fiduciary Capacity . . . . . . 57
10.10 Limitation of Liability . . . . . . . . . . . . . . . . 57
10.11 Indemnification . . . . . . . . . . . . . . . . . . . . 57
10.12 Appointment of Investment Manager . . . . . . . . . . . 58
10.13 Claims Review Procedure . . . . . . . . . . . . . . . . 58
10.14 Named Fiduciary . . . . . . . . . . . . . . . . . . . . 59
ARTICLE 11. MANAGEMENT OF FUNDS . . . . . . . . . . . . . . . . . . . . 60
11.01 Trust Agreement or Group Annuity Contract . . . . . . . 60
11.02 Exclusive Benefit Rule. . . . . . . . . . . . . . . . . 60
11.03 Investment, Management and Control. . . . . . . . . . . 61
11.04 Payment of Certain Expenses . . . . . . . . . . . . . . 61
ARTICLE 12. AMENDMENT, MERGER AND TERMINATION . . . . . . . . . . . . . 62
12.01 Amendment of Plan . . . . . . . . . . . . . . . . . . . 62
12.02 Merger, Consolidation or Transfer . . . . . . . . . . . 62
12.03 Additional Participating Employers. . . . . . . . . . . 62
12.04 Termination of Plan . . . . . . . . . . . . . . . . . . 63
12.05 Distribution of Accounts Upon a Sale of Assets or a
Sale of a Subsidiary . . . . . . . . . 64
ARTICLE 13. GENERAL PROVISIONS. . . . . . . . . . . . . . . . . . . . . 65
13.01 Nonalienation . . . . . . . . . . . . . . . . . . . . . 65
13.02 Conditions of Employment Not Affected by Plan . . . . . 65
13.03 Facility of Payment . . . . . . . . . . . . . . . . . . 66
13.04 Information . . . . . . . . . . . . . . . . . . . . . . 66
13.05 Top-Heavy Provisions. . . . . . . . . . . . . . . . . . 66
13.06 Written Elections . . . . . . . . . . . . . . . . . . . 69
13.07 Construction. . . . . . . . . . . . . . . . . . . . . . 69
167
CURTISS-WRIGHT CORPORATION SAVINGS AND INVESTMENT PLAN
Effective January 1, 1989
ARTICLE 1. DEFINITIONS
1.01 "Accounts" means the Employer Account, the Member Account and
the Deferred Account.
1.02 "Actual Deferral Percentage" means, with respect to a specified
group of Employees, the average of the ratios, calculated
separately for each Employee in that group, of (a) the amount of
Deferred Cash Contributions made pursuant to Section 3.01 for a
Plan Year (in Deferred Cash Contributions returned to a Highly-
Compensated Employee under Section 3.01(c) and Deferred Cash
Contributions returned to any Employee pursuant to Section
3.01(d)), to (b) the Employees' Statutory Compensation for that
entire Plan Year, provided that, upon direction of the Committee,
Statutory Compensation for a Plan Year shall only be counted if
received during the period an Employee is, or is eligible to
become, a Member. The Actual Deferral Percentage for each group
and the ratio determined for each Employee in the group shall be
calculated to the nearest one one-hundredth of one percent. For
purposes of determining the Actual Deferral Percentage for a Plan
Year, Deferred Cash Contributions may be take account for a Plan
Year only if they:
(a) relate to compensation that either would have been received
by the Employee in the Plan Year but for the deferral
election, or are attributable to services performed by the
Employee in the Plan Year and would have been received by
the Employee within 2 1/2 months after the close of the Plan
Year but for the deferral election,
(b) are allocated to the Employee as of a date within that Plan
Year and the allocation is not contingent on the
participation or performance of service after such date, and
- 1 -
168
(c) are actually paid to the Trustee no later than 12 months
after the end of the Plan Year to which the contributions relate.
1.03 "Adjustment Factor" means the cost of living adjustment factor pre-
scribed by the Secretary of the Treasury under Section 415(d) of the
Code for calendar years beginning on or after January 1, 1988, and
applied to such items and in such manner as the Secretary shall
provide.
1.04 "Affiliated Employer" means any company which is a member of a
controlled group of corporations (as defined in Section 414(b) of the
Code) which also includes as a member the Employer; any trade or
business under common control (as defined in Section 414(c) of the
Code) with the Employer; any organization (whether or not
incorporated) which is a member of an affiliated service group (as
defined in Section 414(m) of the Code) which includes the Employer;
and any other entity required to be aggregated with the Employer
pursuant to regulations under Section 414(o) of the Code.
Notwithstanding the foregoing, for purposes of Sections 1.29 and 3.11,
the definitions in Sections 414(b) and (c) of the Code shall be modified
by substituting the phrase "more than 50 percent" for the phrase "at
least 80 percent" each place it appears in Section 1563(a)(1) of the
Code.
1.05 "After-Tax Contributions" means amounts contributed pursuant to
Section 3.02.
1.06 "Annual Dollar Limit" means for Plan Years beginning on or after
January 1, 1989 and before January 1, 1994, $200,000 multiplied by
the Adjustment Factor. Commencing with the 1994 Plan Year, the
Annual Dollar Limit means $150,000, except that if for any calendar
year after 1994 the Cost-of-Living Adjustment as hereafter defined is
equal to or greater than $10,000, then the Annual Dollar Limit (as
previously adjusted under this Section) for any Plan Year beginning in
any subsequent calendar year shall be increased by the amount of such
Cost-of-Living Adjustment, rounded to the next lowest multiple of
$10,000. The Cost-of-Living Adjustment shall equal the excess of (i)
- 2 -
169
$150,000 increased by the adjustment made under Section 415(d) of the
Code for the calendar year except that the base period for purposes of
Section 415(d)(1)(A) of the Code shall be the calendar quarter
beginning October 1, 1993 over (ii) the Annual Dollar Limit in effect
for the Plan Year beginning in the calendar year.
1.07 "Annuity Starting Date" means the first day of the first period for
which an amount is paid the April 1st following the year in which the
Member or a terminated member attains age 70 1/2.
1.08 "Beneficiary" means any person or persons designated by a Member
to receive any benefits payable in the event of the Member's death.
However, a married Member's spouse shall be deemed to be his
Beneficiary unless or until he elects another Beneficiary with Spousal
Consent. If no Beneficiary designation is in effect at the Member's
death, or if no person or persons so designated survives the Member,
the Member's surviving spouse, if any, shall be deemed to be the
Beneficiary; otherwise the Beneficiary shall be the personal represen-
tative of the estate of the Member.
1.09 "Board of Directors" means the Board of Directors of Curtiss-Wright
Corporation.
1.10 "Code" means the Internal Revenue Code of 1986, as amended from
time to time.
1.11 "Committee" means the persons named by the President of Curtiss-
Wright Corporation or his designee to administer and supervise the
Plan as provided in Article 10.
1.12 "Compensation" means the total of an Employee's compensation paid
by the Employer during any Plan Year prior to any reduction for
deferred compensation under Section 401(k) of the Code, consisting of
(i) "Base Compensation" representing the Employee's base salary and
- 3 -
170
(ii) "Additional Compensation" representing any bonus, overtime pay,
vacation pay, incentive compensation or premium pay received by an
Employee.
Compensation shall not include:
(i) relocation allowances;
(ii) severance pay;
(iii) any kind of stock payment;
(iv) additional compensation granted in connection with
away from original home assignments;
(v) imputed value of group life insurance premiums under
Section 79 of the Code.
In any event, for Plan Years beginning after 1988, Compensation shall
not exceed the Annual Dollar Limit. The Annual Dollar Limit applies
to the aggregate Compensation paid to a Highly Compensated
Employee referred to in Section 3.10(a), his spouse and his lineal
descendants who have not attained age 19 before the end of the Plan
Year. If, as a result of the application of the family aggregation rule,
the Annual Dollar Limit is exceeded, then the Limit shall be pro-rated
among the affected individuals in proportion to each such individual's
Compensation as determined under this Section 1.12 prior to the
application of the Limit.
1.13 "Contribution Percentage" means, with respect to a specified group
of Employees, the average of the ratios, calculated separately for each
Employee in that group, of (a) the sum of the Employee's After-Tax
Contributions and Matching Contributions for that Plan Year, to (b) his
Statutory Compensation for that entire Plan Year; provided that, upon
direction of the Committee, Statutory Compensation for a Plan Year
shall only be counted if received during the period an Employee is, or
is eligible to become, a Member. The Contribution Percentage for
each group and the ratio determined for each Employee in the group
shall be calculated to the nearest one one-hundredth of one percent.
- 4 -
171
1.14 "Deferred Account" means the account credited with the Deferred
Cash Contributions made on a Member's behalf and earnings on those
contributions, and with Rollover Contributions made by a Member or
an Employee and earnings on those contributions.
1.15 "Deferred Cash Contributions" means amounts contributed pursuant
to Section 3.01.
1.16 "Disability" means total and permanent disability. A Member shall be
deemed to be totally and permanently disabled when, on the basis of
medical evidence satisfactory to the Committee, he is found to be
wholly and permanently prevented from engaging in any occupation or
employment for wages or profit as a result of bodily injury or disease,
either occupationally or nonoccupationally caused, but not as a result
of bodily injury or disease which originated from service in the Armed
Forces of any country.
1.17 "Earnings" means the amount of income to be returned with any
excess deferrals, excess contributions or excess aggregate contributions
under Section 3.01, 3.07, 3.08 or 3.09. Earnings on excess deferrals
and excess contributions shall be determined by multiplying the income
earned on the Deferred Account for the Plan Year by a fraction, the
numerator of which is the excess deferrals or excess contributions, as
the case may be, for the Plan Year and the denominator of which is the
Deferred Account balance at the end of the Plan Year, disregarding any
income or loss occurring during the Plan Year. Earnings on excess
aggregate contributions shall be determined in a similar manner by
substituting the sum of the Employer Account and Member Account for
the Deferred Account, and the excess aggregate contributions for the
excess deferrals and excess contributions in the preceding sentence.
1.18 "Effective Date" means January 1, 1989.
- 5 -
172
1.19 "Employee" means a person employed by the Employer who receives
stated compensation other than a pension, severance pay, retainer, or
fee under contract; however, the term "Employee" excludes any non-
resident alien, any Leased Employee and any person who is included
in a unit of employees covered by a collective bargaining agreement
which does not provide for his membership in the Plan.
1.20 "Employer" means Curtiss-Wright Corporation or any successor by
merger, purchase or otherwise, with respect to its employees; or any
other company participating in the Plan as provided in Section 12.03,
with respect to its employees.
1.21 "Employer Account" means the account credited with Matching
Contributions and earnings on those contributions.
1.22 "Enrollment Date" means the Effective Date and the first day of any
calendar quarter following that date.
1.23 "ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
1.24 "Fund" or "Investment Fund" means the fund or funds in which
contributions to the Plan are invested in accordance with Article 4.
1.25 "Group Annuity Contract" means such contract or contracts as are
entered into by the Employer with an Insurer or Insurers for the
purpose of investing and administering contributions received by the
Insurer in accordance with the terms of the Plan.
1.26 "Highly Compensated Employee" means any employee of the
Employer or an Affiliated Employer (whether or not eligible for
- 6 -
173
membership in the Plan) who satisfies the criteria of paragraph (a),
(b), (c) or (d):
(a) During the look-back year the employee:
(i) received Statutory Compensation in excess of $75,000
multiplied by the Adjustment Factor;
(ii) received Statutory Compensation in excess of $50,000
multiplied by the Adjustment Factor and was among
the highest 20 percent of employees for that year when
ranked by Statutory Compensation paid for that year
excluding, for purposes of determining the number of
such employees, such employees as the Employer may
determine on a consistent basis pursuant to Section
414(q)(8) of the Code; or
(iii) was at any time an officer of the Employer or an
Affiliated Employer and received Statutory
Compensation greater than 50 percent of the dollar
limitation on maximum benefits under Section
415(b)(1)(A) of the Code for such Plan Year. The
number of officers is limited to 50 (or, if lesser, the
greater of 3 employees or 10 percent of employees
excluding those employees who may be excluded in
determining the top-paid group). If no officer has
Statutory Compensation in excess of 50 percent of the
dollar limitation on maximum benefits under Section
415(b)(1)(A) of the Code, the highest paid officer is
treated as a Highly Compensated Employee.
(b) During the determination year, the employee satisfies the
criteria under (i), (ii) or (iii) of (a) above and is one of the
100 highest paid employees of the Employer or an Affiliated
Employer.
(c) During the determination year or the look-back year the
employee was at any time a five percent owner of the
Employer.
(d) For purposes of Section 3.10(a), a Highly Compensated
Employee shall include a former employee who separated
from service prior to the determination year and who was a 5
percent owner for either (i) the year he separated from service
or (ii) any determination year ending on or after the
employee's 55th birthday.
- 7 -
174
(e) Notwithstanding the foregoing, employees who are nonresident
aliens and who receive no earned income from the Employer
or an Affiliated Employer which constitutes income from
sources within the United States shall be disregarded for all
purposes of this Section.
(f) For purposes of this Section 1.26, the `determination year'
means the Plan Year and the `look-back year' means the 12-
month period immediately preceding the determination year.
However, to the extent permitted under regulations, the
Committee may elect to determine the status of Highly
Compensated Employees on a current calendar year basis.
(g) The provisions of this Section shall be further subject to such
additional requirements as shall be described in Section 414(q)
of the Code and its applicable regulations, which shall
override any aspects of this Section inconsistent therewith.
1.27 "Hour of Service" means, with respect to any applicable computation
period,
(a) each hour for which the employee is paid or entitled to
payment for the performance of duties for the Employer or an
Affiliated Employer;
(b) each hour for which the employee is paid or entitled to
payment by the Employer or an Affiliated Employer on
account of a period during which no duties are performed,
whether or not the employment relationship has terminated,
due to vacation, holiday, illness, incapacity (including
disability), layoff, jury duty, military duty or leave of
absence, but not more than 501 hours for any single
continuous period; and
(c) each hour for which back pay, irrespective of mitigation of
damages, is either awarded or agreed to by the Employer or
an Affiliated Employer, excluding any hour credited under (a)
or (b), which shall be credited to the computation period or
periods to which the award, agreement or payment pertains
rather than to the computation period in which the award,
agreement or payment is made.
No hours shall be credited on account of any period during which the
employee performs no duties and receives payment solely for the
purpose of complying with unemployment compensation, workers'
compensation or disability insurance laws. The Hours of Service
credited shall be determined as required by Title 29 of the Code of
Federal Regulations, Sections 2530.200b-2(b) and (c).
1.28 "Insurer" means a legal reserve life insurance company licensed to do
business and authorized to issue Group Annuity contracts in the states
in which the Employer is doing business selected by the Board of
Directors and which issues a Group Annuity Contract in accordance
with the terms of the Plan.
- 8 -
175
1.29 "Leased Employee" means any person performing services for the
Employer or an Affiliated Employer as a leased employee as defined
in Section 414(n) of the Code. In the case of any person who is a
Leased Employee before or after a period of service as an Employee,
the entire period during which he has performed services as a Leased
Employee shall be counted as service as an Employee for all purposes
of the Plan, except that he shall not, by reason of that status, become
a Member of the Plan.
1.30 "Matching Contributions" means amounts contributed pursuant to
Section 3.03 until August 31, 1994, at which time Matching
Contributions shall cease.
1.31 "Member" means any person included in the membership of the Plan
as provided in Article 2.
1.32 "Member Account" means the account credited with the After-Tax
Contributions and earnings on those contributions and with Rollover
Contributions made by a Member or an Employee and earnings on
those contributions.
1.33 "Plan" means the Curtiss-Wright Corporation Savings and Investment
Plan as set forth in this document or as amended from time to time.
The Plan is a continuation of the Curtiss-Wright Corporation Employee
Savings Plan and the Curtiss-Wright Corporation Deferred
Compensation Plan, which were merged effective September 1, 1994.
1.34 "Plan Year" means the 12-month period beginning on any January 1.
1.35 "Rollover Contributions" means amounts contributed pursuant to
Section 3.04.
1.36 "Severance Date" means, solely for purposes of determining an
employee's Vesting Service under Section 1.44, the earlier of (a) the
date an employee quits, retires, is discharged or dies, or (b) the first
anniversary of the date on which an employee is first absent from
service, with or without pay, for any reason such as vacation, sickness,
disability, layoff or leave of absence.
1.37 "Spousal Consent" means the written consent of a Member's spouse
to the Member's election of a specified form of benefit or designation
of a specified Beneficiary. That consent shall be witnessed by a Plan
representative or notary public and shall acknowledge the effect on the
spouse of the Member's election. The requirement for spousal consent
may be waived by the Committee if it believes there is no spouse, or
the spouse cannot be located, or because of such other circumstances
as may be established by applicable law.
- 9 -
176
1.38 "Statutory Compensation" means the wages, salaries, and other
amounts paid in respect of an employee for services actually rendered
to an Employer or an Affiliated Employer, including by way of
example, overtime, bonuses and commissions, but excluding deferred
compensation, stock options and other distributions which receive
special tax benefits under the Code. For purposes of determining
Highly Compensated Employees under Section 1.26 and key employees
under Section 13.05(a)(iii), Statutory Compensation shall include
Deferred Cash Contributions and amounts contributed on a Member's
behalf on a salary reduction basis to a cafeteria plan under Section 125
of the Code. For all other purposes, each Plan Year the Committee
may direct that Statutory Compensation shall include Deferred Cash
Contributions and amounts contributed on a Member's behalf on a
salary reduction basis to a cafeteria plan under Section 125 of the
Code. For Plan Years beginning after 1988, Statutory Compensation
shall not exceed the Annual Dollar Limit, provided that such Limit
shall not be applied in determining Highly Compensated Employees
under Section 1.26. The Annual Dollar Limit applies to the aggregate
Statutory Compensation paid to a Highly Compensated Employee
referred to in Section 3.11(a), his spouse and his lineal descendants
who have not attained age 19 before the close of the Plan Year. If, as
a result of the application of the family aggregation rule, the Annual
Dollar Limit is exceeded, then the Limit shall be pro-rated among the
affected individuals in proportion to each such individual's Statutory
Compensation as determined under this Section 1.38 prior to the
application of the Limit.
1.39 "Subsidiary" means any corporation controlled by Curtiss-Wright
Corporation or by another subsidiary of Curtiss-Wright Corporation.
1.40 "Trust" or "Trust Fund" means the fund established by the Board of
Directors as part of the Plan into which contributions are to be made
and from which benefits are to be paid in accordance with the terms of
the Plan.
1.41 "Trustees" means the trustees holding the funds of the Plan as
provided in Article 11.
1.42 "Valuation Date" means the last business day of each calendar month
or such more frequent dates as the Committee shall establish.
1.43 "Vested Portion" means the portion of the Accounts in which the
Member has a nonforfeitable interest as provided in Article 6 or, if
applicable, Section 13.05.
- 10 -
177
1.44 "Vesting Service" means, with respect to any employee, his period of
employment with the Employer or any Affiliated Employer, whether
or not as an Employee, beginning on the date he first completes an
Hour of Service and ending on his Severance Date, provided that:
(a) if his employment terminates and he is reemployed within one
year of the earlier of (i) his date of termination or (ii) the
first day of an absence from service immediately preceding his date
of termination, the period between his Severance Date and his
date of reemployment shall be included in his Vesting Service;
(b) if he is absent from the service of the Employer or any
Affiliated Employer because of service in the Armed Forces
of the United States and he returns to service with the
Employer or an Affiliated Employer having applied to return
while his reemployment rights were protected by law, the
absence shall be included in his Vesting Service;
(c) if he is on a leave of absence approved by the Employer,
under rules uniformly applicable to all Employees similarly
situated, the Employer may authorize the inclusion in his
Vesting Service of any portion of that period of leave which
is not included in his Vesting Service under (a) or (b) above;
and
(d) if his employment terminates and he is reemployed, his
Vesting Service after reemployment shall be aggregated with
his previous period or periods of Vesting Service.
1.45 "Year of Eligibility Service" means, with respect to any employee, the
12-month period of employment with the Employer or any Affiliated
Employer, whether or not as an Employee, beginning on the date he
first completes an Hour of Service upon hire or rehire, or any Plan
Year beginning after that date, in which he first completes at least
1,000 Hours of Service.
- 11 -
178
ARTICLE 2. ELIGIBILITY AND MEMBERSHIP
2.01 Eligibility
Each Employee shall be eligible to become a Member on any
Enrollment Date coinciding with or immediately following the date he
completes one Year of Eligibility Service.
2.02 Membership
An eligible Employee shall become a Member on the first Enrollment
Date which is at least 30 days after the date he files with the Employer
a form or forms prescribed by the Committee on which he meets all of
the following requirements:
(a) designates the percentage of Compensation he wishes to
contribute under the Plan under Section 3.02 or makes the
election described in Section 3.01, or both;
(b) authorizes the Employer to make regular payroll deductions or
to reduce his Compensation, or both;
(c) names a Beneficiary; and
(d) commencing on and after March 1, 1995, makes an
investment election.
2.03 Reemployment of Former Employees and Former Members
Any person reemployed by the Employer as an Employee, who was
previously a Member or who was previously eligible to become a
Member, shall become a Member upon the filing of a form in
accordance with Section 2.02. Any person reemployed by the
Employer as an Employee, who was not previously eligible to become
a Member, shall become a Member upon completing the eligibility
requirements described in Section 2.01 and filing the appropriate form
or forms in accordance with Section 2.02.
2.04 Termination of Membership
A Member's membership shall terminate on the date he is no longer
employed by the Employer or any Affiliated Employer unless the
Member is entitled to benefits under the Plan, in which event his
membership shall terminate when those benefits are distributed to him.
2.05 Year-end Membership List
On or before September 30th of each Plan Year, at the Committee's
request, the Employer shall transmit to the Committee a list of the
Members as of December 31st of the previous year which list shall be
in such form and shall contain such information as the Committee may
request.
- 12 -
179
ARTICLE 3. CONTRIBUTIONS
3.01 Deferred Cash Contributions
(a) A Member may elect on his application filed under Section 2.02 to
reduce his Compensation payable while a Member by at least .5% and
not more than the contribution permitted by law, in multiples of .5%,
and have that amount contributed to the Plan by the Employer as
Deferred Cash Contributions. Deferred Cash Contributions shall be
further limited as provided below and in Sections 3.07, 3.10 and 3.11.
Any Deferred Cash Contributions shall be paid to the Trustees or
deposited with the Insurer pursuant to the Group Annuity Contract, as
the case may be, as soon as practicable.
(b) In no event shall the Member's Deferred Cash Contributions and
similar contributions made on his behalf by the Employer or an
Affiliated Employer to all plans, contracts or arrangements subject to
the provisions of Section 401(a)(30) of the Code in any calendar year
exceed $7,000 multiplied by the Adjustment Factor. If a Member's
Deferred Cash Contributions in a calendar year reach that dollar
limitation, his election of Deferred Cash Contributions for the
remainder of the calendar year will be canceled. Each Member
affected by this paragraph (b) may elect to change or suspend the rate
at which he makes After-Tax Contributions. As of the first pay period
of the calendar year following such cancellation, the Member's election
of Deferred Cash Contributions shall again become effective in
accordance with his previous election.
(c) In the event that the sum of the Deferred Cash Contributions and
similar contributions to any other qualified defined contribution plan
maintained by the Employer or an Affiliated Employer exceeds the
dollar limitation in Section 3.01(b) for any calendar year, the Member
shall be deemed to have elected a return of Deferred Cash
Contributions in excess of such limit ("excess deferrals") from this
Plan. The excess deferrals, together with Earnings, shall be returned
to the Member no later than the April 15 following the end of the
calendar year in which the excess deferrals were made. The amount
of excess deferrals to be returned for any calendar year shall be
reduced by any Deferred Cash Contributions previously returned to the
Member under Section 3.07 for that calendar year.
(d) If a Member makes tax-deferred contributions under another qualified
defined contribution plan maintained by an employer other than the
Employer or an Affiliated Employer for any calendar year and those
contributions when added to his Deferred Cash Contributions exceed
the dollar limitation under Section 3.01(b) for that calendar year, the
Member may allocate all or a portion of such excess deferrals to this
Plan. In that event, such excess deferrals, together with Earnings,
shall be returned to the Member no later than the April 15 following
the end of the calendar year in which such excess deferrals were made.
However, the Plan shall not be required to return excess deferrals
unless the Member notifies the Committee, in writing, by March 1 of
that following calendar year of the amount of the excess deferrals
allocated to this Plan. The amount of any such excess deferrals to be
returned for any calendar year shall be reduced by any Deferred Cash
Contributions previously returned to the Member under Section 3.07
for that calendar year.
- 13 -
180
3.02 After-Tax Contributions
Any Member may make After-Tax Contributions under this Section
whether or not he has elected to have Deferred Cash Contributions
made on his behalf pursuant to Section 3.01. The amount of After-Tax
Contributions shall be at least .5% of (i) prior to September 1, 1994,
each installment of his Base Compensation and (ii) on and after
September 1, 1994 each installment of his Compensation, while a
Member, in multiples of .5%, to the maximum contribution permitted
by law. Prior to September 1, 1994, a Member making such After-
Tax Contributions may direct the Employer to deduct and contribute a
percent, which shall be a whole number of up to 10% of each
installment of his Additional Compensation, subject to the maximum
contribution permitted by law. On and after September 1, 1994, such
supplemental contribution shall not be permitted. The After-Tax
Contributions of a Member shall be made through payroll deductions
and shall be paid to the Trustees or deposited with the Insurer pursuant
to the Group Annuity Contract, as the case may be, as soon as
practicable.
3.03 Employer Matching Contributions
The Employer shall contribute, until August 31, 1994, on behalf of
each of its Members who elects to make After-Tax Contributions, an
amount equal to 50% of the first 6% of the After-Tax Contributions
made by the Member to the Plan during each payroll period. In no
event, however, shall the Matching Contributions pursuant to this
Section exceed 3% of the Member's Compensation while a Member
with respect to a particular Plan Year. The Matching Contributions are
made expressly conditional on the Plan satisfying the provisions of
Sections 3.01, 3.07, 3.08 and 3.09. If any portion of the After-Tax
Contribution to which the Matching Contribution relates is returned to
the Member under Section 3.09 or 3.10, the corresponding Matching
Contribution shall be forfeited. The Matching Contributions shall be
paid to the Trustees or deposited with the Insurer, as the case may be,
as soon as practicable.
3.04 Employee or Member Rollover Contributions
Without regard to any limitations on contributions set forth in this
Article 3, the Plan may receive from a Member, or an Employee who
has not yet met the eligibility requirements for membership, in cash,
any amount previously received (or deemed to be received) by him
from a qualified plan. The Plan may receive such amount either
directly from the Member or Employee or from a qualified plan in the
form of a direct rollover. Notwithstanding the foregoing, the Plan
shall not accept any amount unless such amount is eligible to be rolled
over to a qualified trust in accordance with applicable law and the
Member or Employee provides evidence satisfactory to the Committee
that such amount qualifies for rollover treatment. Unless received by
the Plan in the form of a direct rollover, the Rollover Contribution
must be paid to the Trustees or deposited with the Insurer, as the case
may be, on or before the 60th day after the day it was received by the
Member or Employee. Rollover Contributions shall be allocated to the
Member's or Employee's Deferred Account.
3.05 Change in Contributions
The percentages of Compensation designated by a Member under
Sections 3.01 and 3.02 shall automatically apply to increases and
decreases in his Compensation. A Member may change his election
under Sections 3.01 and 3.02 at the beginning of any calendar quarter
by giving at least 30 days' prior written notice to the Committee. The
changed percentage shall become effective as soon as administratively
practicable following the expiration of the notice period.
- 14 -
181
3.06 Suspension of Contributions
(a) A Member may suspend his contributions under Section 3.02 and/or
revoke his election under Section 3.01 at any time by giving at least 30
days' prior written notice to the Committee. The suspension or
revocation shall become effective as soon as administratively
practicable following the expiration of the notice period.
(b) A Member who has suspended his contributions under Section 3.02
may elect to have them resumed in accordance with Section 3.02 as of
the first day of the first payroll period of the calendar quarter next
following 30 days' written notice of that intent. A Member who has
revoked his election under Section 3.01 may apply to the Committee
to resume having his Compensation reduced in accordance with Section
3.01 as of the first day of the first payroll period of the calendar
quarter next following 30 days' written notice of that intent.
3.07 Actual Deferral Percentage Test
The Actual Deferral Percentage for Highly Compensated Employees
who are Members or eligible to become Members shall not exceed the
Actual Deferral Percentage for all other Employees who are Members
or eligible to become Members multiplied by 1.25. If the Actual
Deferral Percentage for Highly Compensated Employees does not meet
the foregoing test, the Actual Deferral Percentage for Highly
Compensated Employees may not exceed the Actual Deferral
Percentage for all other Employees who are Members or eligible to
become Members by more than two percentage points, and the Actual
Deferral
(a) The amount of Deferred Cash Contributions made on behalf
of some or all Highly-Compensated Employees shall be
reduced until the provisions of this Section are satisfied as
follows. The actual deferral ratio of the Highly-Compensated
Employee with the highest actual deferral ratio shall be
reduced to the extent necessary to meet the test or to cause
such ratio to equal the actual deferral ratio of the Highly-
Compensated Employee with the next highest ratio. This
process will be repeated until the actual deferral percentage
test is passed. Each ratio shall be rounded to the nearest one
one-hundredth of one percent of the Member's Statutory
Compensation.
(b) Deferred Cash Contributions subject to reduction under this
Section, together with Earnings thereon, ("excess
contributions") shall be paid to the Member before the close
of the Plan Year following the Plan Year in which the excess
contributions were made and, to the extent practicable, within
2 1/2 months of the close of the Plan Year in which the excess
contributions were made. However, any excess contributions
for any Plan Year shall be reduced by any Deferred Cash
Contributions previously returned to the Member under
Section 3.01 for that Plan Year.
- 15 -
182
3.08 Contribution Percentage Test
The Contribution Percentage for Highly Compensated Employees who
are Members or eligible to become Members shall not exceed the
Contribution Percentage for all other Employees who are Members or
eligible to become Members multiplied by 1.25. If the Contribution
Percentage for the Highly Compensated Employees does not meet the
foregoing test, the Contribution Percentage for Highly Compensated
Employees may not exceed the Contribution Percentage of all other
Employees who are Members or eligible to become Members by more
than two percentage points, and the Contribution Percentage for Highly
Compensated Employees may not be more than 2.0 times the
Contribution Percentage for all other Employees (or such lesser amount
as the Committee shall determine to satisfy the provisions of Section
3.09). The Committee may implement rules limiting the After-Tax
Contributions which may be made by some or all Highly Compensated
Employees so that this limitation is satisfied. If the Committee
determines that the limitation under this Section 3.08 has been
exceeded in any Plan Year, the following provisions shall apply:
(a) The amount of After-Tax Contributions and Matching
Contributions made by or on behalf of some or all Highly-
Compensated Employees in the Plan Year shall be reduced
until the provisions of this Section are satisfied as follows.
The actual contribution ratio of the Highly-Compensated
Employee with the highest actual contribution ratio shall be
reduced to the extent necessary to meet the test or to cause
such ratio to equal the actual contribution ratio of the Highly-
Compensated Employee with the next highest actual contribu-
tion ratio. This process will be repeated until the actual
contribution percentage test is passed. Each ratio shall be
rounded to the nearest one one-hundredth of one percent of a
Member's Statutory Compensation.
(b) Any After-Tax Contributions and Matching Contributions
subject to reduction under this Section, together with Earnings
thereon ("excess aggregate contributions"), shall be reduced
and allocated in the following order:
(i) unmatched After-Tax Contributions, and then, if
necessary,
(ii) so much of the matched After-Tax Contributions and
corresponding Matching Contributions, together with
Earnings, as shall be necessary to meet the test shall
be reduced, with the After-Tax Contributions, together
with Earnings, being paid to the Member and the
Matching Contributions, together with Earnings, being
forfeited and applied to reduce Employer contributions,
then, if necessary,
(iii) so much of the Matching Contributions, together with
Earnings, as shall be necessary to equal the balance of
the excess aggregate contributions shall be forfeited
and applied to reduce Employer contributions.
(c) Any repayment or forfeiture of excess aggregate contributions
shall be made before the close of the Plan Year following the
Plan Year for which the excess aggregate contributions were
made and, to the extent practicable, any repayment or
forfeiture shall be made within 2 1/2 months of the close of the
Plan Year in which the excess aggregate contributions were
made.
- 16 -
183
3.09 Aggregate Contribution Limitation
Notwithstanding the provisions of Sections 3.07 and 3.08, in no event
shall the sum of the Actual Deferral Percentage of the group of eligible
Highly Compensated Employees and the Contribution Percentage of
such group, after applying the provisions of Sections 3.07 and 3.08,
exceed the "aggregate limit" as provided in Section 401(m)(9) of the
Code and the regulations issued thereunder. In the event the aggregate
limit is exceeded for any Plan Year, the Contribution Percentages of
the Highly Compensated Employees shall be reduced to the extent
necessary to satisfy the aggregate limit in accordance with the
procedure set forth in Section 3.08.
3.10 Additional Discrimination Testing Provisions
(a) If any Highly Compensated Employee is either (i) a five percent owner
or (ii) one of the 10 highest paid Highly Compensated Employees, then
any Statutory Compensation paid to or any contribution made by or on
behalf of any member of his "family" shall be deemed paid to or made
by or on behalf of such Highly Compensated Employee for purposes
of Sections 3.07, 3.08 and 3.09, to the extent required under
regulations prescribed by the Secretary of the Treasury or his delegate
under Sections 401(k) and 401(m) of the Code. The contributions
required to be aggregated under the preceding sentence shall be
disregarded in determining the Actual Deferral Percentage and
Contribution Percentage for the group of non-highly compensated
employees for purposes of Sections 3.07, 3.08 and 3.09. Any return
of excess contributions or excess aggregate contributions required under
Sections 3.07, 3.08 and 3.09 with respect to the family group shall be
made by allocating the excess contributions or excess aggregate
contributions among the family members in proportion to the
contributions made by or on behalf of each family member that is
combined. For purposes of this paragraph, the term "family" means,
with respect to any employee, such employee's spouse, any lineal
ascendants or descendants and spouses of such lineal ascendants or
descendants.
(b) If any Highly Compensated Employee is a member of another qualified
plan of the Employer or an Affiliated Employer, other than an
employee stock ownership plan described in Section 4975(e)(7) of the
Code or any other qualified plan which must be mandatorily
disaggregated under Section 410(b) of the Code, under which deferred
cash contributions or matching contributions are made on behalf of the
Highly Compensated Employee or under which the Highly
Compensated Employee makes after-tax contributions, the Committee
shall implement rules, which shall be uniformly applicable to all
employees similarly situated, to take into account all such contributions
for the Highly Compensated Employee under all such plans in applying
the limitations of Sections 3.07, 3.08 and 3.09. If any other such
qualified plan has a plan year other than the Plan Year defined in
Section 1.34, the contributions to be taken into account in applying the
limitations of Sections 3.07, 3.08 and 3.09 will be those made in the
plan years ending with or within the same calendar year.
- 17 -
184
(c) In the event that this Plan is aggregated with one or more other plans
to satisfy the requirements of Sections 401(a)(4) and 410(b) of the Code
(other than for purposes of the average benefit percentage test) or if
one or more other plans is aggregated with this Plan to satisfy the
requirements of such sections of the Code, then the provisions of
Sections 3.07, 3.08 and 3.09 shall be applied by determining the Actual
Deferral Percentage and Contribution Percentage of employees as if all
such plans were a single plan. If this Plan is permissively aggregated
with any other plan or plans for purposes of satisfying the provisions
of Section 401(k)(3) of the Code, the aggregated plans must also satisfy
the provisions of Sections 401(a)(4) and 410(b) of the Code as though
they were a single plan. For Plan Years beginning after December 31,
1989, plans may be aggregated under this paragraph (c) only if they
have the same plan year.
(d) The Employer may elect to use Deferred Cash Contributions to satisfy
the tests described in Sections 3.08 and 3.09, provided that the test
described in Section 3.07 is met prior to such election, and continues
to be met following the Employer's election to shift the application of
those Deferred Cash Contributions from Section 3.07 to Section 3.08.
(e) The Employer may authorize that special "qualified nonelective contri-
butions" shall be made for a Plan Year, which shall be allocated in
such amounts and to such Members, who are not Highly Compensated
Employees, as the Committee shall determine. The Committee shall
establish such separate accounts as may be necessary. Qualified
nonelective contributions shall be 100% nonforfeitable when made.
Qualified nonelective contributions made before January 1, 1989 and
earnings credited thereon as of that date may be withdrawn by a
Member while in service only under the provisions of Section 7.03 or
7.04. Any qualified nonelective contributions made on or after January
1, 1989 and any earnings credited on any qualified nonelective
contributions after such date shall only be available for withdrawal
under the provisions of Section 7.03. Qualified nonelective
contributions made for the Plan Year may be used to satisfy the tests
described in Sections 3.07, 3.08 and 3.09, where necessary.
3.11 Maximum Annual Additions
(a) The annual addition to a Member's Accounts for any Plan Year, which
shall be considered the "limitation year" for purposes of Section 415
of the Code, when added to the Member's annual addition for that Plan
Year under any other qualified defined contribution plan of the
Employer or an Affiliated Employer, shall not exceed an amount which
is equal to the lesser of (i) 25% of his aggregate remuneration for that
Plan Year or (ii) the greater of $30,000 or one-quarter of the dollar
limitation in effect under Section 415(b)(1)(A) of the Code.
- 18 -
185
(b) For purposes of this Section, the "annual addition" to a Member's
Accounts under this Plan or any other qualified defined contribution
plan maintained by the Employer or an Affiliated Employer shall be the
sum of:
(i) the total contributions, including Deferred Cash Contributions,
made on the Member's behalf by the Employer and all
Affiliated Employers,
(ii) all Member contributions, exclusive of any Rollover Contribu-
tions, and
(iii) forfeitures, if applicable,
that have been allocated to the Member's Accounts under this Plan or
his accounts under any other such qualified defined contribution plan.
For purposes of this paragraph (b), any Deferred Cash Contributions
distributed under Section 3.07 and any Matching Contributions or
After-Tax Contributions distributed or forfeited under the provisions of
Section 3.01, 3.07, 3.08 or 3.09 shall be included in the annual
addition for the year allocated.
(c) For purposes of this Section, the term "remuneration" with respect to
any Member shall mean the wages, salaries and other amounts paid in
respect of that Member by the Employer or an Affiliated Employer for
personal services actually rendered, determined after any reduction of
Compensation pursuant to Section 3.01 or pursuant to a cafeteria plan
as described in Section 125 of the Code, including (but not limited to)
bonuses, overtime payments and commissions, but excluding deferred
compensation, stock options and other distributions which receive
special tax benefits under the Code.
(d) If the annual addition to a Member's Accounts for any Plan Year, prior
to the application of the limitation set forth in paragraph (a) above,
exceeds that limitation due to a reasonable error in estimating a
Member's annual compensation or in determining the amount of
Deferred Cash Contributions that may be made with respect to a
Member under Section 415 of the Code, or as the result of the
allocation of forfeitures, the amount of contributions credited to the
Member's Accounts in that Plan Year shall be adjusted to the extent
necessary to satisfy that limitation in accordance with the following
order of priority:
(i) The Member's unmatched After-Tax Contributions under
Section 3.02 shall be reduced to the extent necessary. The
amount of the reduction shall be returned to the Member,
together with any earnings on the contributions to be returned.
(ii) The Member's Deferred Cash Contributions under Section
3.01 shall be reduced to the extent necessary. The amount of
the reduction shall be returned to the Member, together with
any earnings on the contributions to be returned.
(iii) The Member's matched After-Tax Contributions and
corresponding Matching Contributions shall be reduced to the
extent necessary. The amount of the reduction attributable to
the Member's matched After-Tax Contributions shall be
returned to the Member, together with any earnings on those
contributions to be returned, and the amount attributable to the
Matching Contributions shall be forfeited and used to reduce
subsequent contributions payable by the Employer.
- 19 -
186
Any Deferred Cash Contributions returned to a Member under this
paragraph (d) shall be disregarded in applying the dollar limitation on
Deferred Cash Contributions under Section 3.01(b), and in performing
the Actual Deferral Percentage Test under Section 3.07. Any After-
Tax Contributions returned under this paragraph (d) shall be
disregarded in performing the Contribution Percentage Test under
Section 3.08.
(e) If the Employer's contributions to the Plan result in an increase in the
combined defined benefit and defined contribution fractions in excess
of the 1.0 permitted under Section 415 of the Code for any Member of
the Plan who is also covered by the Curtiss-Wright Corporation
Retirement Plan, then the accrued benefit under the Curtiss-Wright
Corporation Retirement Plan shall be reduced to the extent necessary
to prevent the sum of the following fractions computed as of the close
of the Plan Year from exceeding 1.0:
Projected Annual Benefit of the Member under the Retirement Plan
divided by the maximum benefit allowed under Section 415(b)
multiplied by 1.25; plus the sum of annual additions to such Member's
Account in such Plan Year and for all prior Plan Years divided by the
maximum annual additions to such Member's account which could have been
made under the Plan for such Plan Year and for all prior Plan Years of
employment as if the Plans had been in effect for each such Plan Year
multiplied by 1.25.
For purposes of this paragraph (e), the following terms shall have the
following meanings:
(i) Defined benefit fraction: A fraction, the numerator of which
is the sum of the Member's projected annual benefits under all
the defined benefit plans (whether or not terminated)
maintained by the Employer or an Affiliated Employer, and
the denominator of which is the lesser of 125 percent of the
dollar limitation in effect for the limitation year under Section
415(B)(1)(A) of the Code or 140 percent of the highest
average compensation of the Member.
Notwithstanding the above, if the Member was a member in
one or more defined benefit plans maintained by the Employer
or an Affiliated Employer which were in existence on July 1,
1982, the denominator of this fraction will not be less than
125 percent of the sum of the annual benefits under such plans
which the Member had accrued as of the later of
September 30, 1983, or the end of the last limitation year
beginning before January 1, 1983. The preceding sentence
applies only if the defined benefit plans individually and in the
aggregate satisfied the requirements of Section 415 of the
Code as in effect at the end of the 1982 limitation year.
- 20 -
187
(ii) Defined contribution fraction: A fraction, the numerator of
which is the sum of the annual additions to the Member's
accounts under all the defined contribution plans (whether or
not terminated) maintained by the Employer or an Affiliated
Employer, for the current and all prior limitation years
(including the annual additions attributable to the Member's
non-deductible Employee contributions to all defined benefit
plans, whether or not terminated, maintained by the Employer
or an Affiliated Employer, and the annual additions
attributable to all welfare benefit funds, as defined in Section
419(e) of the Code, maintained by the Employer or an
Affiliated Employer), and the denominator of which is the
sum of the maximum aggregate amounts for the current and
all prior limitation years of service with the Employer or an
Affiliated Employer (regardless of whether a defined
contribution plan was maintained by the Employer or an
Affiliated Employer). The maximum aggregate amount in any
limitation year is the lesser of 125 percent of the dollar
limitation in effect under Section 415(c)(1)(A) of the Code or
25 percent of the Member's remuneration for such year.
If the employee was a participant in one or more defined
contribution plans maintained by the Employer or an Affiliated
Employer which were in existence on July 1, 1982, the
numerator of this fraction will be adjusted if the sum of this
fraction and the defined benefit fraction would otherwise
exceeded 1.0 under the terms of this Plan. Under the
adjustment, an amount equal to the product of (1) the excess
of the sum of the fractions over 1.0 times (2) the denominator
of this fraction, will be permanently subtracted from the
numerator of this fraction. The adjustment is calculated using
the fractions as they would be computed as of the later of
September 30, 1983, or the end of the last limitation year
beginning before January 1, 1983. This adjustment also will
be made if at the end of the last limitation year beginning
before January 1, 1984, the sum of the fractions exceeds 1.0
because of accruals or additions that were made before the
limitations of this section became effective to any plans of the
Employer or an Affiliated Employer in existence on July 1,
1982.
(iii) Highest average remuneration: The average remuneration for
the three consecutive years of service with the Employer or an
Affiliated Employer that produces the highest average. A year
of service with the Employer or an Affiliated Employer is a
12-consecutive month period.
(iv) Limitation year: The calendar year. All qualified plans
maintained by the Employer must use the same limitation
year. If the limitation year is amended to a different 12-
consecutive month period, the new limitation year must begin
on a date within the limitation year in which the amendment
is made.
- 21 -
188
(v) Projected annual benefit: The annual retirement benefit
(adjusted to an actuarially equivalent straight life annuity if
such benefit is expressed in a form other than a straight life
annuity or qualified joint and survivor annuity) to which the
Member would be entitled under the terms of the Plan
assuming:
(a) The Member will continue employment until Normal
Retirement Date under the Plan (or current age, if
later), and
(b) The Member's remuneration for the current limitation
year and all other relevant factors used to determine
benefits under the plan will remain constant for all
future limitation years.
(vi) Normal Retirement Date: The first of the month next
following the Member's 65th birthday.
3.12 Return of Contributions
(a) If all or part of the Employer's deductions for contributions to the
Plan are disallowed by the Internal Revenue Service, the portion of the
contributions to which that disallowance applies shall be returned to
the Employer without interest but reduced by any investment loss
attributable to those contributions, provided that the contribution is
returned within one year after the disallowance of deduction. For this
purpose, all contributions made by the Employer are expressly declared
to be conditioned upon their deductibility under Section 404 of the
Code.
(b) The Employer may recover without interest the amount of its contribu-
tions to the Plan made on account of a mistake of fact, reduced by any
investment loss attributable to those contributions, if recovery is made
within one year after the date of those contributions.
(c) In the event that Deferred Cash Contributions made under Section 3.01
are returned to the Employer in accordance with the provisions of this
Section 3.12, the elections to reduce Compensation which were made
by Members on whose behalf those contributions were made shall be
void retroactively to the beginning of the period for which those
contributions were made. The Deferred Cash Contributions so
returned shall be distributed in cash to those Members for whom those
contributions were made, provided, however, that if the contributions
are returned under the provisions of paragraph (a) above, the amount
of Deferred Cash Contributions to be distributed to Members shall be
adjusted to reflect any investment gains or losses attributable to those
contributions.
- 22 -
189
ARTICLE 4. INVESTMENT OF CONTRIBUTIONS
4.01 Investment Funds
(a) Prior to March 1, 1995, the following provisions shall apply:
(i) The Trust Fund shall be invested by the Trustee, provided,
however, that the Trustee shall not invest in, acquire or hold
for the Trust Fund any securities or property of Curtiss-
Wright Corporation or its Subsidiaries.
(ii) In the event contributions hereunder are made with the Insurer
pursuant to the Group Annuity Contract, such contributions
shall be invested by the Insurer pursuant to the terms of said
Contract, provided, however, that the Insurer shall not invest
in, acquire or hold directly under the Group Annuity Contract
any securities or property of Curtiss-Wright Corporation or its
Subsidiaries.
(b) On and after March 1, 1995, Members' Accounts shall be invested in
one or more Investment Funds, as authorized by the President of
Curtiss-Wright Corporation or his designee, which from time to time
may include the following:
Fund A - Fixed Income Investment Fund
This Fund shall consist primarily of fixed-income obligations, including
but not limited to government and private bonds, debentures, notes,
certificates of deposit, participation in money market funds and other
similar fixed-income investments (which may include investment in any
commingled trust fund selected by the Trustees which meets the
requirements of Section 401(a) of the Code and is exempt from taxation
under Section 501(a) of the Code, and which is invested primarily in
fixed income securities or fixed income investments). Pending the
selection and purchase of suitable investments, this Fund may be
invested in short-term obligations of the United States Government and
other short-term investments selected by the Trustees.
Fund B - Diversified Investment Fund
This Fund shall consist primarily of common or capital stocks of
issuers other than the Employer or an Affiliated Employer, bonds or
securities convertible into common or capital stocks of issuers other
than the Employer or an Affiliated Employer, shares of mutual funds
and closed-end investment companies and other similar types of
investments (which may include investment in any commingled trust
fund selected by the Trustees which meets the requirements of Section
401(a) of the Code and is exempt from taxation under Section 501(a)
of the Code, and which is invested primarily in similar types of
securities). Pending the selection and purchase of suitable investments,
this Fund may be invested in short-term obligations of the United States
Government and other short-term investments selected by the Trustees.
Fund C - Money Market Fund
This Fund shall consist of short-term obligations of the United States
Government, bank certificates of deposit, commercial paper, bankers'
acceptances, shares of money market mutual funds and other similar
types of short-term investments (which may include investment in any
commingled trust fund selected by the Trustees which meets the re-
quirements of Section 401(a) of the Code and is exempt from taxation
under Section 501(a) of the Code, and which is invested primarily in
similar types of securities).
- 23 -
190
Fund D - Insurance Contract Fund
This Fund shall be held and invested by a legal reserve life insurance
company, or other financial institution or banking facility under the
terms of a guaranteed investment contract or other funding agreement
which provides for a fixed rate of investment income for specified
periods.
(b) The Trustees may keep such amounts of cash as they, in their sole
discretion, shall deem necessary or advisable as part of the Funds, all
within the limitations specified in the trust agreement.
(c) Dividends, interest, and other distributions received on the assets held
by the Trustees in respect to each of the above Funds shall be
reinvested in the respective Fund.
4.02 Investment of Members' Accounts
A Member shall elect to have his Accounts invested in accordance with
one of the following options:
(a) 100% in one of the available Investment Funds;
(b) in more than one Investment Fund allocated in multiples of
1%.
If a Member fails to make an election with respect to the investment of
his Accounts, such Member shall be deemed to have elected the
investment of his Accounts in Fund D.
4.03 Responsibility for Investments
Each Member is solely responsible for the selection of his investment
options. The Trustees, the Committee, the Employer, and the officers,
supervisors and other employees of the Employer are not empowered
to advise a Member as to the manner in which his Accounts shall be
invested. The fact that an Investment Fund is available to Members for
investment under the Plan shall not be construed as a recommendation
for investment in that Investment Fund.
4.04 Change of Election for Current and Future Contributions
A Member may change his investment election under Section 4.02 in
multiples of 1% at any time but no more than four times in any
calendar year. The changed investment election shall become effective
as soon as administratively practicable, and shall be effective only with
respect to subsequent contributions.
4.05 Reallocation of Accounts Among the Funds
Subject to any administrative restrictions determined by the Committee,
a Member may reallocate his investment account in multiples of 1% at
any time but no more than four times in any calendar year. The
reallocation election shall become effective as soon as administratively
practicable.
4.06 Limitations Imposed by Contract
Notwithstanding anything in this Article to the contrary, any contri-
butions invested in any investment contract shall be subject to any and
all terms of such contract, including any limitations placed on the
exercise of any rights otherwise granted to a Member under any other
provisions of this Plan with respect to such contributions.
- 24 -
191
ARTICLE 5. VALUATION OF THE ACCOUNTS
5.01 Computation of Trust Fund or Group Annuity Contract
The following provisions shall apply with regard to the computation of
the value of the Trust Fund or Group Annuity contract and allocation
of Trust Fund or Group Annuity contract earnings until March 1, 1995,
at which time the provisions of Section 5.02 through 5.04 shall apply.
(a) The Trustee shall compute the value of the Trust Fund as of
the close of business at the end of each month by determining
the market values of the assets then held in such fund.
(b) The difference between the market value of the Trust Fund as
of any evaluation date and its market value as of the close of
business the last preceding evaluation date shall be credited or
debited, as the case may be, to the account balances of the
Members in such Fund in the proportion that the account
balance of such Member in such Fund on such preceding
evaluation date bore to the aggregate account balances of all
Members in such Fund as of such preceding evaluation date.
(c) The market value of the Trust Fund as of a particular date
shall be as determined in good faith by the Trustee.
(d) In the event the Trust Fund is invested under the Group
Annuity contract in a fixed investment fund, the Trustee shall
compute the value of the Trust Fund as of the close of
business at the end of each calendar month by determining the
amount of contributions deposited in the Trust Fund plus
whatever interest is credited thereto, and by subtracting
therefrom any amounts withdrawn from or charged against the
accounts in the Trust Fund in accordance with the provisions
of the Plan, the Trust Agreement and the Group Annuity
Contract then in effect.
(e) In the event the contributions hereunder are made directly with
the Insurer pursuant to the Group Annuity Contract, the
computation of the value of the Group Annuity contract shall
be made as of the close of business at the end of each calendar
month by determining the amounts of contributions deposited
with the Insurer pursuant to the Group Annuity contract, plus
whatever interest and capital appreciation, if any, have been
credited thereto, and by subtracting therefrom any amounts
withdrawn from or charged against the funds deposited under
the Group Annuity contract including a proportionate
allocation of investment losses, if any, in accordance with the
terms of the Plan and the Group Annuity Contract then in
effect.
(f) The difference between the value of the Group Annuity
Contract on any evaluation date and its value as of the last
preceding evaluation date shall be credited or debited, as the
case may be, to the account balances of each of the Members
in such Group Annuity Contract, in the proportion that the
account balance of such Member in such Group Annuity
Contract on such preceding evaluation date bore to the
aggregate account balances of all Members in such Group
Annuity Contract as of such preceding evaluation date.
- 25 -
192
5.02 Valuation of Member Accounts
(a) Effective March 1, 1995, the Trustees shall value the Funds at least
monthly. On each Valuation Date, the Accounts of a Member in each
Fund shall equal:
(i) the Member's account balance in his Accounts as of the
immediately preceding Valuation Date; less
(ii) any distributions from the Member's Accounts since the
immediately preceding Valuation Date; plus
(iii) the amount of contributions, if any, made by or on behalf of
the Member to that Fund since the immediately preceding
Valuation Date; plus
(iv) the net earnings or losses, after adjusting for expenses, if any,
since the immediately preceding Valuation Date.
(b) Whenever an event requires a determination of the value of the
Member's Accounts, the value shall be computed as of the Valuation
Date coincident with or immediately following the date of
determination, subject to the provisions of Section 5.03.
5.03 Right to Change Procedures
The Committee reserves the right to change from time to time the
procedures used in valuing the Accounts or crediting (or debiting) the
Accounts if it determines, after due deliberation and upon the advice
of counsel and/or the current recordkeeper, that such an action is
justified in that it results in a more accurate reflection of the fair
market value of assets. In the event of a conflict between the
provisions of this Article and such new administrative procedures,
those new administrative procedures shall prevail.
5.04 Statement of Accounts
At least once a year, each Member shall be furnished with a statement
setting forth the value of his Accounts and the Vested Portion of his
Accounts.
- 26 -
193
ARTICLE 6. VESTED PORTION OF ACCOUNTS
6.01 Member Account and Deferred Account
A Member shall at all times be 100% vested in, and have a nonforfeit-
able right to, his Member Account and his Deferred Account.
6.02 Employer Account
(a) As of December 31 of each year, a Member shall become vested with
respect to 25% of the value of the total Matching Contributions made
in his behalf for that portion of the year. As of each succeeding
December 31, such Member shall become vested with respect to an
additional 25% of the value of such Matching Contributions until, on
December 31 of the third calendar year following the year for which
the Matching Contributions were made, such Member shall become
vested in 100% of the value of such Matching Contributions made on
his behalf. For purposes of this paragraph, the "value of Matching
Contributions" shall mean the amount of Matching Contributions
adjusted for an allocable share of earnings, losses and expenses in
accordance with section 5.02(a)(iv), as of each December 31.
A Member with five years or more Vesting Service with the Employer
shall become vested in 100% of his Employer Account.
(b) Notwithstanding the foregoing, a Member shall be 100% vested in, and
have a nonforfeitable right to, his Accounts upon death, Disability, or
the attainment of his 65th birthday.
6.03 Disposition of Forfeitures
(a) Upon termination of employment of a Member who was not fully
vested in his Employer Account, the non-vested portion of his
Employer Account shall not be forfeited until the Member receives a
distribution of the Vested Portion of his Accounts. If the former
Member is not reemployed by the Employer or an Affiliated Employer
before he receives such a distribution, the non-vested portion of his
Employer Account shall be forfeited. Any amounts forfeited pursuant
to this paragraph (a) shall be applied to reduce Employer contributions
or to pay the expenses of the Plan not paid directly by the Employer.
If the amount of the Vested Portion of a Member's Employer Account
at the time of his termination of employment is zero, the Member shall
be deemed to have received a distribution of such zero vested benefit.
(b) If an amount of a Member's Employer Account has been forfeited in
accordance with paragraph (a) above, that amount shall be subsequently
restored to the Member's Employer Account provided (i) he is
reemployed by the Employer or an Affiliated Employer and (ii) he
repays to the Plan during his period of reemployment and within five
years of his date of reemployment an amount in cash equal to the full
amount distributed to him from the Plan on account of his termination
of employment. Repayment shall be made in one lump sum.
(c) In the event that any amounts to be restored by the Employer to a
Member's Employer Account have been forfeited under paragraph (a)
above, those amounts shall be taken first from any forfeitures which
have not as yet been applied against Employer contributions or used to
pay expenses of the Plan not paid directly by the Employer, and if any
amounts remain to be restored, the Employer shall make a special
Employer contribution equal to those amounts.
(d) A repayment shall be invested in the available Investment Funds as the
Member elects at the time of repayment.
- 27 -
194
ARTICLE 7. WITHDRAWALS WHILE STILL EMPLOYED
7.01 Withdrawal of After-Tax Contributions
A Member may, subject to Section 7.05, by giving no less than 30
days prior written notice to the Committee, may elect to withdraw any
part or all (but not less than $100) of the Value of his Employee
Contributions on the last day of any calendar month; provided such
Participant shall not be eligible to make any contributions under the
Plan again for at least one year from said date of withdrawal.
Notwithstanding the foregoing, a Member may apply to the Committee
at any time for an emergency withdrawal of up to one hundred percent
(100%) of the value of his After-Tax Contributions at the time of
withdrawal for any or a combination of the circumstances listed below.
The Committee shall not approve a withdrawal in an amount in excess
of the amount it deems sufficient to cover his emergency financial
needs. The circumstances which may warrant Committee approval of
a Member's application for an emergency withdrawal are:
(1) a disability which has not resulted in termination of
employment;
(2) fees and charges for tuition, books, room and board and
similar expenses related to one or more courses taken by the
Member or by his spouse or dependent in an accredited
college, university or trade, professional, vocation or business
school;
(3) medical expenses (to the extent not otherwise paid for under
any Employer benefits provided for this purpose) incurred by
the Member or his dependents; or
(4) any other major financial emergencies which in the sole
judgment of the Committee warrant a hardship withdrawal.
In the event of such an emergency withdrawal, the Member may
continue his participation in the Plan without interruption.
7.02 Withdrawal of Employer Contributions
All of the Value of any Employer Contributions made on behalf of a
Participant for a particular calendar year may be withdrawn by the
Participant, without penalty, on December 31 of the third calendar year
following the calendar year for which those Employer Contributions
were made, provided the Participant, during the month of January
immediately preceding that December 31st, notifies the Committee, in
writing, of his election to make such withdrawal. Failure to make
timely notification shall result in the deferral of said receipt of
Employer Contributions until retirement, termination on account of
disability, death or otherwise, or distribution pursuant to Article 9.
7.03 Withdrawal After Age 59 1/2
A Member who shall have attained age 59 1/2 as of the effective date of
any withdrawal pursuant to this Section may, subject to Section 7.05,
elect to withdraw, in any order of priority he chooses, all or part of his
Deferred Account, and all or part of the Vested Portion of his
Employer Account attributable to Employer contributions and all or
part of the portion of the Member Account attributable to After-Tax
Contributions made by the Member under Section 3.02.
- 28 -
195
7.04 Hardship Withdrawal
(a) A Member who has withdrawn the total amount available for
withdrawal under the preceding Sections of this Article may, subject to
Section 7.05, elect to withdraw not more than once in a Plan Year all
or part of the Deferred Cash Contributions made on his behalf to his
Deferred Account upon furnishing proof of Hardship satisfactory to the
Committee.
(b) A Member shall be considered to have incurred a "Hardship" if, and
only if, he meets the requirements of paragraphs (c) and (d) below.
(c) As a condition for Hardship there must exist with respect to the
Member an immediate and heavy need to draw upon his Deferred
Account.
(i) The Committee shall presume the existence of such immediate
and heavy need if the requested withdrawal is on account of
any of the following:
(A) expenses for medical care described in Section 213(d)
of the Code previously incurred by the Member, his
spouse or any of his dependents (as defined in Section
152 of the Code) or necessary for those persons to
obtain such medical care;
(B) costs directly related to the purchase of a principal
residence of the Member (excluding mortgage
payments);
(C) payment of tuition and related educational fees for the
next 12 months of post-secondary education of the
Member, his spouse or dependents;
(D) payment of amounts necessary to prevent eviction of
the Member from his principal residence or to avoid
foreclosure on the mortgage of his principal residence;
or
(E) the inability of the Member to meet such other
expenses, debts or other obligations recognized by the
Internal Revenue Service as giving rise to immediate
and heavy financial need for purposes of Section
401(k) of the Code.
(ii) The Committee may determine the existence of immediate and
heavy financial need in situations other than those described
in (i) above where the Member demonstrates the withdrawal
is necessary for such reasons as the Committee shall
determine.
The amount of withdrawal may not be in excess of the amount of the
immediate and heavy financial need of the employee to pay any
federal, state or local income taxes and any amounts necessary to pay
any penalties reasonably anticipated to result from the distribution.
In evaluating the relevant facts and circumstances, the Committee shall
act in a nondiscriminatory fashion and shall treat uniformly those
Members who are similarly situated. The Member shall furnish to the
Committee such supporting documents as the Committee may request
in accordance with uniform and nondiscriminatory rules prescribed by
the Committee.
- 29 -
196
(d) As a condition for Hardship, the Member must demonstrate that the
requested withdrawal is necessary to satisfy the financial need
described in paragraph (b). To demonstrate such necessity, the
Member who requests a hardship withdrawal to satisfy a financial need
described in (c)(i) above must comply with (i) as follows and the
Member who requests a hardship withdrawal to satisfy a financial need
described in (c)(ii) above must comply with (ii) as follows:
(i) The Member must certify to the Committee, on such form as
the Committee may prescribe, that the financial need cannot
be fully relieved (A) through reimbursement or compensation
by insurance or otherwise, (B) by reasonable liquidation of the
Member's assets, (C) by cessation of Deferred Cash
Contributions and After-Tax Contributions, or (D) by other
distributions or nontaxable (at the time of the loan) loans from
the Plan or other plans of the Employer or Affiliated
Employers or by borrowing from commercial sources at a
reasonable rate in an amount sufficient to satisfy the need.
The actions listed are required to be taken to the extent
necessary to relieve the hardship but any action which would
have the effect of increasing the hardship need not be taken.
For purposes of this clause (i) there shall be attributed to the
Member those assets of the Member's spouse and minor
children which are reasonably available to the Member. The
Member shall furnish to the Committee such supporting
documents as the Committee may request in accordance with
uniform and nondiscriminatory rules prescribed by the
Committee. If, on the basis of the Member's certification and
the supporting documents, the Committee finds it can
reasonably rely on the Member's certification, then the
Committee shall find that the requested withdrawal is
necessary to meet the Member's financial need.
(ii) The Member must request, on such form as the Committee
shall prescribe, that the Committee make its determination of
the necessity for the withdrawal solely on the basis of his
application. In that event, the Committee shall make such
determination, provided all of the following requirements are
met: (A) the Member has obtained all distributions, other
than distributions available only on account of hardship, and
all nontaxable loans currently available under all plans of the
Employer and Affiliated Employers, (B) the Member is
prohibited from making Deferred Cash Contributions and
After-Tax Contributions to the Plan and all other plans of the
Employer and Affiliated Employers under the terms of such
plans or by means of an otherwise legally enforceable
agreement for at least 12 months after receipt of the
distribution, and (C) the limitation described in Section
3.01(b) under all plans of the Employer and Affiliated
Employers for the calendar year following the year in which
the withdrawal is made must be reduced by the Member's
elective deferral made in the calendar year of the distribution
for Hardship. For purposes of clause (B), "all other plans of
the Employer and Affiliated Employers" shall include stock
option plans, stock purchase plans, qualified and non-qualified
deferred compensation plans and such other plans as may be
designated under regulations issued under Section 401(k) of
the Code, but shall not include health and welfare benefit
plans or the mandatory employee contribution portion of a
defined benefit plan.
- 30 -
197
7.05 Procedures and Restrictions
If a loan and a hardship withdrawal are processed as of the Valuation
Date, the amount available for the hardship withdrawal will equal the
Vested Portion of the Member's Accounts on such Valuation Date
reduced by the amount of the loan. The amount of the withdrawal
shall be allocated between and among the Investment Funds in
proportion to the value of the Member's Accounts from which the
withdrawal is made in each Investment Fund as of the date of the
withdrawal. Subject to the provisions of Section 9.08, all payments to
Members under this Article shall be made in cash as soon as
practicable.
7.06 Determination of Vested Portion of Employer Account
If a Member is not fully vested in his Employer Account at the time he
makes a withdrawal from that Account under this Article 7, as of any
subsequent Valuation Date such Member's Vested Portion of his
Employer Account shall be determined in accordance with the
following formula:
X = P x (AB+D) - D
where X is the value of the Member's Vested Portion of such Account,
P is the nonforfeitable percentage at the relevant time, AB is the value
of his Employer Account at the relevant time, and D is the amount of
the prior distribution from such Account.
- 31 -
198
ARTICLE 8. LOANS TO MEMBERS
8.01 Amount Available
(a) On and after March 1, 1995, a Member who is an employee of the
Employer or an Affiliated Employer may borrow, on written
application to the Committee and on approval by the Committee under
such uniform rules as it shall adopt, an amount which does not exceed
the lesser of
(i) 50% of the Vested Portion of his Accounts, or
(ii) $50,000 reduced by the highest outstanding balance of loans
to the Member from the Plan during the one year period
ending on the day before the day the loan is made.
(b) The interest rate to be charged on loans shall be determined by the
Committee each January 1 and shall be one percent above the reference
charged by Mellon Bank as of January 1. The interest rate so
determined for purposes of the Plan shall be fixed for the duration of
each loan.
(c) The amount of the loan is to be transferred from the Investment Funds
in which the Member's Accounts are invested to a special "Loan Fund"
for the Member under the Plan. The Loan Fund consists solely of the
amount transferred to the Loan Fund and is invested solely in the loan
made to the Member. The amount transferred to the Loan Fund shall
be pledged as security for the loan. Payments of principal on the loan
will reduce the amount held in the Member's Loan Fund. Those payments,
together with the attendant interest payment, will be reinvested in the
Investment Funds in accordance with the Member's then effective investment
election.
8.02 Terms
(a) In addition to such rules and regulations as the Committee may adopt,
all loans shall comply with the following terms and conditions:
(i) An application for a loan by a Member shall be made in
writing to the Committee, whose action in approving or
disapproving the application shall be final;
(ii) Each loan shall be evidenced by a promissory note payable to
the Plan;
(iii) The period of repayment for any loan shall be arrived at by
mutual agreement between the Committee and the Member,
but that period shall not exceed five years unless the loan is to
be used in conjunction with the purchase of the principal
residence of the Member, in which case that period shall not
exceed 15 years;
(iv) Payments of principal and interest will be made by payroll
deductions or in a manner agreed to by the Member and the
Committee in substantially level amounts, but no less
frequently than quarterly, in an amount sufficient to amortize
the loan over the repayment period;
(v) A loan may be prepaid, but only in full, as of the end of any
month without penalty;
(vi) Only one loan may be outstanding at any given time.
- 32 -
199
(b) If a loan is not repaid in accordance with the terms contained in the
promissory note and a default occurs, the Plan may execute upon its
security interest in the Member's Accounts under the Plan to satisfy the
debt; however, the Plan shall not levy against any portion of the Loan
Fund attributable to amounts held in the Member's Deferred Account
or Employer Account until such time as a distribution of the Deferred
Account or Employer Account could otherwise be made under the
Plan.
(c) Any additional rules or restrictions as may be necessary to implement
and administer the loan program shall be in writing and communicated
to employees. Such further documentation is hereby incorporated into
the Plan by reference, and the Committee is hereby authorized to make
such revisions to these rules as it deems necessary or appropriate, on
the advice of counsel.
(d) To the extent required by law and under such rules as the Committee
shall adopt, loans shall also be made available on a reasonably
equivalent basis to any Beneficiary or former Employee (i) who main-
tains an account balance under the Plan and (ii) who is still a
party-in-interest (within the meaning of Section 3(14) of ERISA).
- 33 -
200
ARTICLE 9. DISTRIBUTION OF ACCOUNTS UPON TERMINATION OF EMPLOYMENT
9.01 Eligibility
Upon a Member's termination of employment the Vested Portion of his
Accounts, as determined under Article 6, shall be distributed as
provided in this Article.
9.02 Form of Distribution
Distribution of the Vested Portion of a Member's Accounts shall be
made to the Member (or to his Beneficiary, in the event of death) in a
cash lump sum.
9.03 Date of Payment of Distribution
(a) Except as otherwise provided in this Article, distribution of the Vested
Portion of a Member's Accounts shall be made as soon as admin-
istratively practicable following the later of (i) the Member's
termination of employment or (ii) the 65th anniversary of the
Member's date of birth (but not more than 60 days after the close of
the Plan Year in which the later of (i) or (ii) occurs).
(b) In lieu of a distribution as described in paragraph (a) above, a Member
may, in accordance with such procedures as the Committee shall
prescribe, elect to have the distribution of the Vested Portion of his
Accounts made as of any Valuation Date coincident with or following
his termination of employment which is before or after the date
described in paragraph (a) above, subject to the provisions of
Section 9.04.
(c) Notwithstanding the provisions of paragraphs (a) and (b), if the value
of the Vested Portion of the Member's Accounts amounts to $3,500 or
less, a lump sum payment shall automatically be made as soon as
administratively practicable following the Member's termination of
employment.
(d) In the case of the death of a Member before the distribution of his
Accounts, the Vested Portion of his Accounts shall be distributed to his
Beneficiary as soon as administratively practicable following the
Member's date of death.
9.04 Age 70 1/2 Required Distribution
(a) In no event shall the provisions of this Article operate so as to allow
the distribution of a Member's Accounts to begin later than the April 1
following the calendar year in which he attains age 70 1/2, provided that
such commencement in active service shall not be required with respect
to a Member (i) who does not own more than five percent of the
outstanding stock of the Employer (or stock possessing more than five
percent of the total combined voting power of all stock of the
Employer), and (ii) who attained age 70 1/2 prior to January 1, 1988.
(b) In the event a Member is required to begin receiving payments while
in service under the provisions of paragraph (a) above, the Member
may elect to receive payments while in service in accordance with
option (i) or (ii), as follows:
(i) A Member may receive one lump sum payment on or before
the Member's required beginning date equal to his entire
Account balance and annual lump sum payments thereafter of
amounts accrued during each calendar year; or
- 34 -
201
(ii) A Member may receive annual payments of the minimum
amount necessary to satisfy the minimum distribution
requirements of Section 401(a)(9) of the Code. Such
minimum amount will be determined on the basis of either a
single or a joint life expectancy of the Member and his
Beneficiary at the Member's election. Such life expectancy
will be recalculated once each year; however, the life
expectancy of the Beneficiary will not be recalculated if the
Beneficiary is not the Member (i) A Member may receive one lump
sum payment on or before the Member's required beginning date
equal to his entire Account balance and annual lump sum payments
thereafter of amounts accrued during each calendar year; or
- 34 -
201
(ii) A Member may receive annual payments of the minimum
amount necessary to satisfy the minimum distribution
requirements of Section 401(a)(9) of the Code. Such
minimum amount will be determined on the basis of either a
single or a joint life expectancy of the Member and his
Beneficiary at the Member's election. Such life expectancy
will be recalculated once each year; however, the life
expectancy of the Beneficiary will not be recalculated if the
Beneficiary is not the Member's spouse. The amount of the
withdrawal shall be allocated among the Investment Funds in
proportion to the value of the Member's Accounts as of the
date of each withdrawal.
An election under this Section 9.04 shall be made by a Member by
giving written notice to the Committee within the 90-day period prior
to his required beginning date. The commencement of payments under
this Section 9.04 shall not constitute an Annuity Starting Date for
purposes of Sections 72, 401(a)(11) and 417 of the Code. Upon the
Member's subsequent termination of employment, payment of the
Member's Accounts shall be made in accordance with the provisions
of Section 9.02. In the event a Member fails to make an election under
this Section 9.04, payment shall be made in accordance with clause (ii)
above.
9.05 Status of Accounts Pending Distribution
Until distributed under Section 9.03 or 9.04 the Accounts of a Member
who is entitled to a distribution shall continue to be invested as part
of the funds of the Plan and the Member shall retain investment transfer
rights as described in Section 4.05 during the deferral period.
9.06 Proof of Death and Right of Beneficiary or Other Person
The Committee may require and rely upon such proof of death and
such evidence of the right of any Beneficiary or other person to receive
the value of the Accounts of a deceased Member as the Committee may
deem proper and its determination of the right of that Beneficiary or
other person to receive payment shall be conclusive.
9.07 Distribution Limitation
Notwithstanding any other provision of this Article 9, all distributions
from this Plan shall conform to the regulations issued under Section
401(a)(9) of the Code, including the incidental death benefit provisions
of Section 401(a)(9)(G) of the Code. Further, such regulations shall
override any Plan provision that is inconsistent with Section 401(a)(9)
of the Code.
9.08 Direct Rollover of Certain Distributions
This Section applies to distributions made on or after January 1, 1993.
Notwithstanding any provision of the Plan to the contrary that would
otherwise limit a distributee's election under this Section, a
distributee may elect, at the time and in the manner prescribed by the
Committee, to have any portion of an eligible rollover distribution
paid directly by the Plan to an eligible retirement plan specified by
the distributee in a direct rollover. The following definitions apply
to the terms used in this Section:
- 35 -