Exhibit 10.2
SCHEDULE
TO THE
MASTER AGREEMENT
dated as of September 15, 1998
between
CREDIT LYONNAIS NEW YORK BRANCH ("PARTY A")
the New York Branch of Credit Lyonnais S.A., a banking corporation
organized and existing under the laws of the Republic of France
and
HEXCEL CORPORATION ("PARTY B")
a corporation organized and existing
under the laws of the State of Delaware
PART 1. TERMINATION PROVISIONS
(a) "SPECIFIED ENTITY" means in relation to Party A for the purpose of:
Section 5(a)(v), None
Section 5(a)(vi), None
Section 5(a)(vii), None
Section 5(b)(iv), None
and in relation to Party B for the purpose of:
Section 5(a)(v), Affiliates
Section 5(a)(vi), Affiliates
Section 5(a)(vii), Material Subsidiary
Section 5(b)(iv), None
(b) "SPECIFIED TRANSACTION" will have the meaning specified in Section 14
of this Agreement.
(c) The "CROSS DEFAULT" provisions of Section 5(a)(vi) of this Agreement
will apply to both parties, but shall exclude any payment default that
results solely from wire transfer difficulties or an error or omission
of an administrative or operational nature (so long as sufficient
funds are available to the relevant party on the relevant date), but
only if payment is made within three Business Days after such transfer
difficulties have been corrected or the error or omission has been
discovered, provided however, that in line seven the phrase "or
becoming capable at such time of being declared" is hereby deleted
If such provisions apply:
"SPECIFIED INDEBTEDNESS" will have the meaning specified in Section 14
of this Agreement, except that such term shall not include any
obligation in respect of deposits received in the ordinary course of
Party A's banking business.
"THRESHOLD AMOUNT" means U.S. $10,000,000 for Party A and Party B (or
its equivalent in any other currency, currency unit or combination
thereof).
(d) "TERMINATION CURRENCY" means United States Dollars.
(e) The "CREDIT EVENT UPON MERGER" provisions of Section 5(b)(iv) of this
Agreement will apply to Party A and to Party B.
(f) The "AUTOMATIC EARLY TERMINATION" provision of Section 6(a) of this
Agreement will not apply to Party A and will not apply to Party B.
(g) PAYMENTS ON EARLY TERMINATION. For the purpose of Section 6(e) of
this Agreement:
(i) Market Quotation will apply.
(ii) The Second Method will apply.
(h) ADDITIONAL TERMINATION EVENT will not apply.
(i) ADDITIONAL EVENT OF DEFAULT will not apply.
PART 2. TAX REPRESENTATIONS
(a) PAYER REPRESENTATIONS. For the purpose of Section 3(e) of this
Agreement, each of Party A and Party B represent that it is not
required by any applicable law, as modified by the practice of any
relevant governmental revenue authority, of any Relevant Jurisdiction
to make any deduction or withholding for or on account of any Tax from
any payment (other than interest under Section 2(e), 6(d)(ii) or 6(e)
of this Agreement) to be made by it to the other party under this
Agreement. In making this representation, it may rely on(i) the
accuracy of any representation made by the other party pursuant to
Section 3(f) of this Agreement; (ii) the satisfaction of the agreement
of the other party contained in Section 4(a)(i) or 4(a)(iii) of this
Agreement and the accuracy and effectiveness of any document provided
by the other party pursuant to Section 4(a)(i) or 4(a)(iii) of this
Agreement; and (iii) the satisfaction of the agreement of the other
party contained in Section 4(d) of this Agreement; PROVIDED, that it
shall not be a breach of this representation where reliance is placed
on clause (ii) and the other party does not deliver a form or document
under Section 4(a)(iii) of this Agreement by reason of material
prejudice to its legal or commercial position.
(b) PAYEE REPRESENTATIONS
(i) PARTY A /PAYEE TAX REPRESENTATION. For the purpose of Section
3(f) of this Agreement, Party A represents that each payment received
or to be received by it in connection with this Agreement will be
effectively connected with its conduct of a trade or business in the
United States of America.
(ii) PARTY B/ PAYEE TAX REPRESENTATION. For the purpose of Section
3(f) of this Agreement, Party B represents that it is a corporation
organized under the laws of the State of Delaware.
PART 3. AGREEMENT TO DELIVER DOCUMENTS
For the purpose of Sections 4(a)(i) and (ii) of this Agreement each
party agrees to deliver the following documents, as applicable:
(a) Tax forms, documents or certificates to be delivered are:
Party A agrees to execute and deliver to Party B, a United States
Internal Revenue Service Form 4224, or any successor form, (i) upon
execution of this Agreement, (ii) promptly upon reasonable demand by
Party B, and (iii) promptly upon learning that any such form
previously provided by Party A has become obsolete or incorrect.
(b) Other documents to be delivered are:
COVERED BY
PARTY REQUIRED TO DATE BY WHICH SECTION 3(d)
DELIVER DOCUMENT FORM/DOCUMENT/CERTIFICATE TO BE DELIVERED REPRESENTATION
--------------------------- -------------------------------------- ----------------- --------------
Certified copies of all documents
Party B evidencing necessary corporate or Upon execution of Yes
partnership or other authorizations and Agreement
approvals with respect to Party B's entry
into Swap Transactions and Agreements
thereof.
A certificate of an authorized officer of
Party A and Party B the party or Credit Support Provider in Upon execution of the Yes
respect of such party, if any, certifying Agreement
the names, true signatures and authority
of the officers of the party signing this
Agreement, each Confirmation and any
applicable Credit Support Document.
Party A An internal legal opinion. Upon execution of No
this Agreement
Party B An opinion of counsel to Party B in form Upon execution of this No
and substance satisfactory to Party A. Agreement
Party B Evidence of acceptance of appointment by Upon execution of No
Process Agent. this Agreement
Party B Quarterly unaudited financial statements. Promptly upon Yes
request
Party A and Party B Annual audited financial statements.* Promptly upon Yes
request
*ANNUAL FINANCIAL STATEMENTS PROVIDED BY PARTY A SHALL BE THE ANNUAL REPORT OF
CREDIT LYONNAIS, S.A.
PART 4. MISCELLANEOUS
(a) ADDRESSES FOR NOTICES. For the purpose of Section 12(a) of this
Agreement:
Address for notices or communications to Party A:
Address: 1301 Avenue of the Americas, Xxx Xxxx, Xxx Xxxx 00000
Attention: Treasury Department
Telex No.: 62410 Answerback: CREDW
Telephone No: (000) 000-0000
Facsimile No.: (000) 000-0000
Address for notices or communications to Party B:
Address: Two Stamford Plaza, 000 Xxxxxxx Xxxxxxxxx, 00xx Xxxxx,
Xxxxxxxx, XX 00000-0000
Attention: Treasurer
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
(b) PROCESS AGENT. For the purpose of Section 13(c) of this Agreement,
Party B appoints as its Process Agent: Corporation Service Company,
00 Xxxxx Xxxxxx, 0xx xxxxx, Xxxxxx, Xxx Xxxx 00000-0000.
(c) OFFICES. The provisions of Section 10(a) will apply to Party A and
Party B.
(d) MULTIBRANCH PARTY. For the purpose of Section 10(c), (i) Party A is
not a Multibranch Party, and (ii) Party B is not a Multibranch Party.
(e) CALCULATION AGENT. The Calculation Agent shall be Party A.
CREDIT SUPPORT DOCUMENT. None.
(g) CREDIT SUPPORT PROVIDER. Credit Support Provider means: (i) in
relation to Party A: None; (ii) in relation to Party B: None.
(h) GOVERNING LAW. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT
REFERENCE TO ANY CHOICE OF LAW DOCTRINE THAT WOULD RESULT IN THE
APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.
(i) NETTING OF PAYMENTS. Subparagraph (ii) of Section 2(c) of this
Agreement will not apply to any Transaction.
(j) "AFFILIATE" will have the meaning specified in Section 14 of this
Agreement, except that for purposes of Section 3(c), "Affiliate" means
with respect to Party A, any entity controlled, directly or indirectly
by Party A. For this purpose, "control of a majority of person" means
ownership of a majority of the voting power of the entity or person.
PART 5. OTHER PROVISIONS
(a) PROCEDURES FOR ENTERING INTO TRANSACTIONS. With respect to each
Transaction entered into pursuant to this Agreement, Party A will, on
or promptly after the Trade Date thereof (by mail, telex, telecopier
or other electronic means), send Party B a Confirmation of each
Transaction between them on the standard form used by Party A or in
such other form as is mutually agreed
upon by the parties. Party B will promptly thereafter accept the
terms thereof by executing and returning to Party A an executed
copy or request the correction of such Confirmation. If Party B
fails to accept or dispute the Confirmation in the manner set forth
above within five Local Business Days after receipt from Party A,
such failure shall constitute its agreement to the terms of the
Transaction set out in such Confirmation, absent manifest error,
and the requirement of this Agreement that the parties exchange
Confirmations shall for all purposes be deemed satisfied by a
Confirmation sent and an agreement deemed given as provided herein.
(b) DEFINITIONS. Unless otherwise specified in a Confirmation, this
Agreement and each Transaction between the parties shall be subject to
the 1991 ISDA Definitions (the "1991 Definitions"), the 1992 FX and
Currency Options Definitions (the "FX Definitions") and the 1996 ISDA
Equity Derivatives Definitions (the "Equity Derivatives Definitions"),
each as published by the International Swap and Derivatives
Association, Inc. ("ISDA") without reference to any amendment
subsequent to the date hereof. For these purposes, (i) all references
in the 1991 Definitions and Equity Derivatives Definitions to a "Swap
Transaction" and all references in the FX Definitions to an FX
Transaction or Currency Option shall be deemed to apply to each
Transaction under this Agreement and (ii) all references in the 1991
Definitions to a Business Day shall be deemed references to a Local
Business Day under this Agreement. The provisions of the 1991
Definitions and Equity Derivatives Definitions relating to Market
Disruption Events and Adjustments to Indices and Extraordinary Events
Affecting Shares (and their effects as well) will apply to a
Transaction under this Agreement only to the extent not inconsistent
with the provisions of the applicable Confirmation. In the event of
any inconsistency between the 1991 Definitions and the FX Definitions,
the FX Definitions will prevail with respect to an FX Transaction or a
Currency Option. In the event of any inconsistency between the
provisions of this Agreement, the 1991 Definitions, the FX Definitions
and the Equity Derivatives Definitions, the provisions of this
Agreement will prevail. Any definition incorporated into a
Confirmation shall prevail over the provisions of this Agreement, the
1991 Definitions, the FX Definitions and the Equity Derivatives
Definitions.
(c) INDEMNIFIABLE TAX. For purposes of Section 14 of this Agreement, the
following shall be added at the end of the definition of
"Indemnifiable Tax":
"Notwithstanding the foregoing, "Indemnifiable Tax" also means any Tax
imposed in respect of payment under this Agreement by reason of a
Change in Tax Law by a government or taxing authority of a Relevant
Jurisdiction with respect to the party making such payment, unless the
other party is incorporated, organized, managed and controlled or
considered to have its seat in such jurisdiction, or is acting for
purposes of this Agreement through a branch office located in such
jurisdiction."
(d) ADDITIONAL AGREEMENT. For purposes of Section 4(a)(iii) of this
Agreement, the following shall be added immediately prior to the
existing text: "upon learning that such form or document is required
or".
(e) RIGHT OF SET-OFF. Any amount (the "Early Termination Amount") payable
to one party (the "Payee") by the other party (the "Payer") under
Section 6(e), in circumstances where there is (i) a Defaulting Party
or (ii) one Affected Party in the case where a Termination Event under
Section 5(b) (iv) has occurred, will, at the option of the party ("X")
other than the Defaulting Party or the Affected Party (and without
prior notice to the Defaulting Party or the Affected party), be
reduced by its set-off against any amount(s) (the "Other Agreement
Amount") payable (whether at such time or in the future or upon the
occurrence of a contingency) by the Payee to the Payer (irrespective
of the currency, place of payment or booking office of the obligation)
under any other agreement(s) between the Payee and the Payer or
instrument(s) or undertaking (s) issued or
executed by one party to, or in favor of, the other party, except
as otherwise specified in those agreement(s), instruments(s), or
undertaking(s) or separately agreed between the Payer and the Payee
(and the Other Agreement Amount will be discharged promptly and in
all respects to the extent it is so set-off). X will give notice
to the other party of any set-off so effected under this
ection 6(e).
For this purpose, either the Early Termination Amount or the Other
Agreement Amount (or the relevant portion of such amounts) may be
converted by X into the currency in which the other is denominated at
the rate of exchange at which such party would be able, acting in a
reasonable manner and in good faith, to purchase the relevant amount
of such currency.
If an obligation is unascertained, X may in good faith estimate that
obligation and set-off in respect of the estimate, subject to the
relevant party accounting to the other when the obligation is
ascertained.
Nothing in this Section 6(e) shall be effective to create a charge or
other security interest. This Section 6(e) provision shall be without
prejudice and in addition to any right of set-off, combination of
accounts, lien or other right to which any party is at any time
otherwise entitled (whether by operation of law, contract or
otherwise).
(f) ESCROW. If either party in its reasonable judgment determines at
any time that there has been a material adverse change that is likely
to affect the other party's ability to perform its ensuing payment
obligation in connection with a Transaction or Transactions involving
payments due from each of the parties on the same day in different
currencies, the party that has formed that judgment may notify the
other that the payments due on that day in connection with that
Transaction or those Transactions are to be made in escrow, to a major
commercial bank selected by that party in good faith and that has
offices in the cities in which both payments are to be made. If such
an election is made, each party shall make the payment due from it on
that day by deposit into escrow with that escrow agent, for value on
that day, with irrevocable instructions (i) to release the payment to
the intended payee upon receipt by the escrow agent of the required
counter payment due from that payee on the same day in connection with
that Transaction accompanied by irrevocable instructions to the same
effect, or (ii) if the required deposit in escrow of the counter
payment due is not so made on the same day, for value on that day, to
return the payment deposited in escrow to the party that made the
escrow deposit. The party that elects to have payments made in escrow
shall pay the costs of the escrow arrangements and cause those
arrangements to provide that the escrow agent will pay interest on
each amount deposited in escrow with it in either of the relevant
cities, for each day such amount remains in escrow past 5:00 p.m.
local time in the city, at the same rate per annum, and calculated in
the same way, as it would pay on overnight deposits placed with it in
the relevant currency and city for value on such day. The escrow
arrangements shall also provide that such interest on any amount in
escrow shall be payable to the intended payee of that amount, provided
that it has deposited the counter payment due from it into escrow as
contemplate herein, and that, if it has not done so, such interest
shall be payable to the other party.
(g) JURY TRIAL. Each party hereby waives its respective right to jury
trial with respect to any litigation arising under, or in connection
with, this Agreement or any Transaction.
(h) REPRESENTATIONS. Section 3 is hereby amended by adding at the end
thereof the following Subparagraphs (g), (h), and (i):
(g) LINE OF BUSINESS. It has entered into this Agreement (including each
Transaction evidenced hereby) in conjunction with its line of business
(including financial intermediation services) or the financing of its
business.
(h) ELIGIBLE SWAP PARTICIPANT. It constitutes an "eligible swap
participant" as such term is defined in Rule 35.1 (b) (2) of the
Commodity Futures Trading Commission, 17 C.F.R. 35.1 (b) (2) (1993).
(i) RELATIONSHIP BETWEEN PARTIES. Each party will be deemed to represent
to the other party on the date on which it enters into a Transaction
that (absent written agreement between the parties that expressly
imposes affirmative obligations to the contrary for that Transaction):
(a) NON- RELIANCE. It is acting for its own account, and it has made
its own independent decisions to enter into that Transaction and
as to whether that Transaction is appropriate or proper for it
based upon its own judgment and upon advice from such advisers as
it has deemed necessary. It is not relying on any communication
(written or oral) of the other party as investment advice or as a
recommendation to enter into that Transaction; it being
understood that information and explanations related to the terms
and conditions of a Transaction shall not be considered
investment advice or a recommendation to enter into that
Transaction. No communication (written or oral) received from
the other party shall be deemed to be an assurance or guarantee
as to the expected results of that Transaction.
(b) ASSESSMENT AND UNDERSTANDING. It is capable of assessing the
merits of and understanding (on its own behalf or through
independent professional advice), and understands and accepts,
the terms, conditions and risks of that Transaction. It is also
capable of assuming, and assumes, the risks of that Transaction.
(c) STATUS OF PARTIES. The other party is not acting as a fiduciary
for or an adviser to it in respect of that Transaction.
(i) MONITORING AND RECORDING. Each party (i) consents to the monitoring
or recording, at any time and from time to time, by the other party of
any and all communications between officers or employees of the
parties, (ii) waives any further notice of such monitoring or
recording, (iii) agrees to notify its officers and employees of such
monitoring and recording, and (iv) agrees that any such recordings may
be submitted in evidence to any court or in any proceeding relating to
this Agreement and such recordings shall be accessible to the outside
party in question only upon request.
(j) SEVERABILITY. In the event any one or more of the provisions
contained in this Agreement should be held invalid, illegal, or
unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein shall not
in any way be affected or impaired thereby. The parties shall
endeavor, in good faith negotiations, to replace the invalid, illegal
or unenforceable provisions with valid provisions the economic effect
of which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.
(k) SCOPE OF AGREEMENT. Notwithstanding anything contained in the
Agreement to the contrary, upon the effectiveness of the Agreement
(unless otherwise agreed to in writing by the parties) (i) any
Specified Transaction then outstanding and (ii) any Specified
Transaction subsequently entered into by the parties shall be
"Transactions" for purposes of and be subject to, governed by and
construed in accordance with the terms of this Agreement and each
related confirmation shall be a "Confirmation" for purposes of, and be
read and construed as one with, this Agreement.
(l) PARI PASSU. As long as Party A is, and continues to be a lender (or
an affiliate or subsidiary thereof) under the Credit Agreement, Party
B's payment obligations under this Agreement shall, pursuant to the
terms of the Credit Agreement, be deemed to be "Obligations" under the
Credit Agreement and Party A shall be entitled to the benefits of the
collateral pledged pursuant to the Collateral Agreement as defined in
the Credit Agreement to the same extent as the Lenders under the
Credit Agreement.
CREDIT AGREEMENT. Shall mean the Second Amended and Restated Credit
Agreement dated as of September 15, 1998, among HEXCEL CORPORATION, a
Delaware corporation (with its successors and permitted assigns, the
"Company"); the FOREIGN BORROWERS from time to time parties thereto
(together with the Company, the "Borrowers"); the LENDERS from time to
time parties thereto; CITIBANK, N.A., a national banking association,
as documentation agent (the "Documentation Agent"); and CREDIT SUISSE
FIRST BOSTON, a Swiss banking association ("CSFB"), as arranger (in
such capacity, the "Arranger") and as administrative agent (in such
capacity, the "Administrative Agent") for the Lenders.
Please confirm your agreement to the terms of the foregoing Schedule by signing
below.
CREDIT LYONNAIS NEW YORK BRANCH
By:
Name: Pascal Poupelle
Title: Executive Vice President
HEXCEL CORPORATION
By:
Name:
Title:
EXHIBIT I
[Letterhead of Counsel for Party B]
Re: Master Agreement, dated as of September 15, 1998, (the
"Agreement"), between Credit Lyonnais New York Branch ("Party A")
and Hexcel Corporation ("Party B")
Dear Sirs:
I am an attorney admitted to practice in ____________ and am counsel
to Party B, and as such am generally familiar with its affairs. I have examined
the Agreement and such other records and instruments as I deemed advisable.
Based upon the foregoing, and having regard for legal considerations
which I deem relevant, I am of the opinion that:
1. Party B is duly organized and validly existing under the laws of
the jurisdiction of its organization or incorporation and, if relevant under
such laws, in good standing.
2. Party B has the power (a) to execute and deliver the Agreement,
any other required documentation relating to the Agreement and any Credit
Support Document to which it is a party, and (b) to perform its obligations
under the Agreement and any obligations it has under any Credit Support Document
to which it is a party, and has taken all necessary action to authorize such
execution, delivery and performance.
3. Such execution, delivery and performance do not violate or
conflict with any law applicable to Party B, any provision of its constitutional
documents, any order or judgment of any court or other agency of government
applicable to it or any of its assets or any contractual restriction binding on
or affecting Party B.
4. All governmental and other consents that are required to have
been obtained by it with respect to the Agreement or any Credit Support Document
to which Party B is a party have been obtained and are in full force and effect
and it has complied with all conditions of any such consents.
5. The obligations of Party B under the Agreement and any Credit
Support Document to which it is a party constitute its legal, valid and binding
obligations, enforceable in accordance with their respective terms (subject as
to enforceability to applicable bankruptcy, reorganization, insolvency,
moratorium or similar laws affecting creditors' rights generally and to
equitable principles of general application (regardless of whether enforcement
is sought in a proceeding in equity or at law)).
Very truly yours,
